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Which case won?

casea
The case for the local association
  • The law requires the PAC to consider an assessment of greenhouse gas emissions, including downstream emissions, having regard to “applicable” state and national policies. (Downstream emissions are emissions caused by the actual use of coal by the end user, as distinct from the direct emissions caused by the company’s mining operations).
  • The Paris Agreement and NSW CCPF are “applicable” state and national policies, yet the PAC did not have regard to them as it was required to do.
  • Further, the PAC’s report had only a limited assessment of downstream greenhouse gas emissions. This was insufficient. Taking relevant matters into consideration calls for more than simply adverting to them. The PAC had an obligation to give proper, genuine and realistic consideration to downstream greenhouse gas emissions. Yet, there is no note or record of the PAC's consideration of these issues, nor reference in its reports to any applicable state and national policies, programs or guidelines.
  • This failure to properly consider downstream greenhouse gas emissions is particularly troubling, since the direct emissions of greenhouse gas from operating the coal mine pale into insignificance when compared with the downstream greenhouse gases emitted by end users of the company’s coal.
  • Given that the PAC failed to properly consider an assessment of greenhouse gas emissions, the PAC’s decision to grant development consent is invalid and must be overturned.
caseb
The case for the mining company
  • Contrary to what the association seems to think, the objectives of the relevant law are to promote mining in NSW, not to shut it down.
  • It's true that the law requires the PAC to consider an assessment of greenhouse gas emissions. However, it’s clear that the PAC had such an assessment before it, and that the PAC expressly said in its report that it took the assessment into account. The law does not require the PAC to give reasons for its decisions, nor to explain the weight it attributes to certain considerations.
  • Further, the PAC was not required to consider the Paris Agreement or the NSW CCPF. These policies cannot be applied to the situation and so are not “applicable” policies. These agreements are merely aspirational and do not provide a meaningful guide on how to quantitively assess greenhouse gas emissions. How can the PAC determine whether a mining project with a life to only 2033 will achieve an aspirational target of net zero-emissions by 2050? How can the PAC decide whether Australia's commitment to a 26 to 28% reduction by 2030 is best achieved by not allowing this coal mine in NSW, compared to all the other coal mines in Australia, compared to car policy, compared to electricity policy, compared to all the other questions which arise in relation to Australia’s stated target?
  • Even if the court concludes that the PAC was required to consider the Paris Agreement and the NSW CCPF, the evidence before the court makes it clear that the PAC did have regard to the targets in those documents when making its decision.
  • Given that the PAC complied with the relevant law in making its decision to grant consent, the court must dismiss the association’s case.

So, which case won?

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a40%
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Expert commentary on the court's decision

Emma WeiParalegal
“Although in this case, the court was not persuaded that the Paris Agreement and the NSW CCPF were applicable in assessing Wilpinjong’s mining development application, greenhouse gas emissions are increasingly seen as being relevant in consideration of environmentally significant development approvals.”
Land and Environment Court rejects claim by local association

In the case Wollar Progress Association Incorporated v Wilpinjong Coal Pty Ltd [2018] NSWLEC 92, the Land and Environment Court ordered that Wollar Progress Association’s case against Wilpinjong Coal Pty Ltd and the Planning Assessment Commission be dismissed.

Court finds Paris Agreement and NSW CCPF not applicable policies requiring consideration

Clause 14(2) of the State Environmental Planning Policy (Mining, Petroleum Production and Extractive Industries 2007 provides that:

…in determining a development application for development for the purposes of mining… the consent authority must consider an assessment of the greenhouse gas emissions (including downstream emissions) of the development and must do so having regard to any applicable State or national policies, programs or guidelines concerning greenhouse gas emissions.

The court agreed with Wilpinjong Coal that the Paris Agreement and NSW CCPF were not “applicable” policies within the meaning of clause 14(2), as the PAC could not use them to quantifiably assess the mining project’s greenhouse gas emissions.

The court also agreed with Wilpinjong Coal’s argument that, even if the Paris Agreement and the NSW CCPF were held to be applicable policies, the PAC had given them adequate consideration.

Court finds PAC satisfied requirement to consider assessment of greenhouse gas emissions

The court found that the PAC had in fact considered an assessment of the greenhouse gas emissions of the development, and so had satisfied the requirements of clause 14(2).

In the court’s view, the detailed evidence before it, which had also been before the PAC, was an assessment of greenhouse gas emissions. Further, the PAC had engaged in the requisite consideration of that assessment.

In coming to this conclusion, the court referred to relevant caselaw, including Malek Fahd Islamic School Ltd v Minister for Education and Training. In that case, the court said that:

… in circumstances where the delegate has voluntarily provided a detailed statement of reasons for her decision, that statement will provide a central focus for determining whether or not the conceded mandatory relevant consideration was taken into account by her. That is not to lose sight, however, of the well-established and important need to avoid an over-zealous approach in reviewing such a statement… Such restraint is essential to preserve the legitimacy of judicial review.

In Malek Fahd, the court also referred to Minister for Immigration and Multicultural Affairs v Yusuf, in which it was said that where a decision-maker volunteered to make statements, “caution is required in drawing adverse inferences from omissions”.

The court in Malek Fahd also drew attention to Carrascalao v Minister for Immigration and Border Protection as support for the principle that when a decision-maker is required by its statute to consider mandatory criteria, the decision-maker “must engage in an active intellectual process directed at that… criteria”.

In considering Wilpinjong Coal’s development application, the PAC was not required by law to state the reasons for its decision, but had voluntarily done so. The court concluded that:

…where it could perhaps be said that the PAC appears merely to note references to all the issues raised by the Project, [the court was] comfortably satisfied that [the PAC] gave them requisite consideration during its work, against the background of the public interest.

Greenhouse gas emissions increasingly seen as relevant consideration

Although in this case, the court was not persuaded that the Paris Agreement and the NSW CCPF were applicable in assessing Wilpinjong’s mining development application, greenhouse gas emissions are increasingly seen as being relevant in consideration of environmentally significant development approvals.

In Gloucester Resources Limited v Minister for Planning [2019] NSWLEC 7 (“Rocky Hill”), objectors of the mine argued that the development was not in the public interest (as required by section 4.15(1)(e) of the Environmental Planning and Assessment Act) for a multitude of reasons, including being “contrary to the principles of ecologically sustainable development because the direct and indirect greenhouse gas emissions of the mine will contribute to climate change”.

The judge agreed and held that the development application for the mine should be refused.

In doing so, he rejected the market substitution argument, an argument utilised in the Wollar Progress Association case. This argument says that if an Australian mine doesn’t mine the coal, a mine somewhere else will. The result is that the same amount of coal gets burned, but Australia loses out economically.

In rejecting the market substitution argument, the judge said that “Australia has a responsibility, including under the Climate Change Convention, the Kyoto Protocol and the Paris Agreement, to take the lead in taking mitigation measures to reduce GHG emissions”.

Growing importance of greenhouse gas emissions influences approval decisions

The Rocky Hill case has had a significant influence on the PAC. Shortly after that case, the PAC refused a 5-year extension to a coal mine in Dartbrook and the developmental approval for a large coal mine project in Bylong for similar reasons as those applied in Rocky Hill.

It is likely that if Wollar Progress Association had framed its argument as a public interest matter, like the objectors in the Rocky Hill case did, the claim would have had greater prospects of success.

On the other hand, it may still have been difficult for the association to prove its case, since the Wilpinjong Coal project had undergone multiple environmental impact assessments, modifications and offset strategies.

This shift in the PAC’s approach suggests that those looking to halt the development of a mine or aluminium smelter being planned for their neighbourhood should bring evidence that the proposed development is not in line with principles of ecological sustainability.

NOTICE: This article is accurate as at the time of publication and does not constitute legal advice. Please see our legal notices page for more information. Information related to coronavirus can be outdated very quickly.
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