Decision brings certainty on greenhouse gases and coal mines

Summary

The Federal Court has handed down its decision in the Sonoma/Isaac Plains case. In that case, the Federal Court considered the application to greenhouse gas emissions to the mining, transportation and use of coal.

The Court found that in this case there was insufficient connection between the mining and transportation of coal and emissions of greenhouse gases and dismissed the application by the Wildlife Preservation Society. The Court also said that it "was far from satisfied that the burning of coal at some unidentified place in the world, the production of greenhouse gases from such combustion, its contribution towards global warming and the impact of global warming upon a protected matter, can be … described" as having an effect on a protected matter.

This decision gives certainty to coal miners regarding the application of the EPBC Act to perceived contributions to the cumulative impact of greenhouse gas emissions.

Background

The EPBC Act prohibits a person from taking an action that will or is likely to have, significant impacts for certain listed matters of "national environmental significance", for example, World Heritage areas, without the consent of the Minister. An action that would have such an effect is a "controlled action". If a new coal mine is a controlled action, then the Minister's approval is needed before the development can take place.

Whether or not an action is a controlled action is therefore a critical question for any project proponent when determining the process to be followed in developing a coal mine and determining what consents are required for the project. The EPBC Act establishes a process under which a person proposing to take an action which he or she thinks may be a controlled action must refer the proposal to the Minister for a decision as to whether or not it is a controlled action.

The application

The Wildlife Preservation Society of Queensland Proserpine/Whitsunday Branch Inc. sought a review of the Minister's decisions regarding the proposed Isaac Plains Coal Project and the Sonoma Coal Project. The Minister had determined that neither of the developments were controlled actions under the Act.

While the Society put forward a range of arguments, the principal argument was that the Minister did not consider (or did not properly consider) the adverse impacts that greenhouse gases created from coal extracted at the Isaac Plains Coal Project and the Sonoma Coal Project were likely to have on matters of national environmental significance.

The decision

The Court found that none of the grounds for review made by the Society were established.

In particular, the Court found that, when making that decision, the Minister's delegate had properly considered the possibility of greenhouse gas emissions.

It was held that that the Delegate had properly considered all adverse impacts as required by the Act.

Implications of the decision

The Court said that it "was far from satisfied that the burning of coal at some unidentified place in the world, the production of greenhouse gases from such combustion, its contribution towards global warming and the impact of global warming upon a protected matter, can be … described" as having an effect on a protected matter.

The Court confirmed that in deciding whether or not a matter is a controlled action that:

• it is not enough to establish that there is a possible impact for the Minister to decide that a matter is a controlled action
• although global warming is recognised as a key threatening process under the EPBC Act this is not a sufficient basis alone to trigger a controlled action
• whilst greenhouse emissions from any coal mine might possibly contribute to what is presently seen as global warming, the EPBC Act requires the Minister to consider the actual impacts of the proposed mine as opposed to the "general threat posed by greenhouse emissions and climate change".