27 March 2007
Key Points:
Climate change is getting increasingly greater coverage in the application of project approval laws throughout Australia. Proponents should consider whether, and if so, how, it should be addressed in the course of obtaining approvals for their projects
As Australian governments tackle climate change through emissions trading and other policy innovations, Australian courts are increasingly being asked to consider climate change's role in planning approvals. So far, climate change has been accepted as a relevant factor in various approvals; it has not so far prevented approval for any developments (although the potential for it to do so has been flagged) and it has actually been an important factor in approving at least one development.
In this article we'll review the major Australian court cases which have considered climate change in project approvals, and what they mean for future developments.
The indirect impact of a development: climate change and the EPBC Act
Under the Commonwealth Environment Protection and Biodiversity Conservation Act 1999 ("EPBC Act"), a person cannot take an action that will, or is likely to have, a significant impact on certain listed matters of "national environmental significance" (such as nationally threatened species and World Heritage areas) without the consent of the Minister. An action that would have such an impact is a "controlled action". If, for example, a new coal mine is a controlled action, then the Minister's approval is needed before the development can take place.
"Impacts" has been held to include indirect impacts of a development as well as the direct ones. This has opened the door for a broader range of impacts to be considered, including - potentially - a project's indirect impact upon climate change.
The Wildlife Preservation Society of Queensland Proserpine/Whitsunday Branch Inc stepped through that door when it asked the Federal Court to review the Minister's decision that two proposed coal mines were not controlled actions. The Minister, it said, had failed to consider the mines' indirect impacts, which came from the following facts:
The Court held in Wildlife Preservation Society of Queensland Proserpine/Whitsunday Branch Inc v Minister for the Environment & Heritage [2006] FCA 736 that the Minister had in fact considered this issue and therefore his decision was lawful. It went further, however, and held:
The Federal Government has accepted the relevance of indirect impacts in some recent amendments to the EPBC Act, which we examine here.
Victoria: The Hazelwood expansion and indirect impacts
Victoria was the first place outside the Federal arena to use the concept of indirect impacts as a way of considering climate change in planning approvals.
The Hazelwood mine and power station wanted to develop an additional coal field to ensure supplies of brown coal beyond 2009 and up to 2031. Various aspects of the proposed development required approvals and licences (in particular the approval of a planning scheme amendment under the Planning and Environment Act 1987 (Vic) ("P&E Act"). Victoria's Minister for Planning approved terms of reference for a panel inquiry to be conducted under the P&E Act and the Environment Effects Act 1978 (Vic). Those terms, however, expressly excluded consideration by the Panel of submissions relating to greenhouse gas emissions from the continued operation of the power station.
The issue went to the Victorian Civil and Administrative Tribunal which followed the Federal approach: like the EPBC Act, Victoria's P&E Act requires direct and indirect effects be considered. There was, it said, a sufficient nexus between the planning approval and the environmental effect of greenhouse gases that are likely to be produced by the power station's operations beyond 2009.
Because the Panel did not consider submissions about the power station's effect on climate change, the Tribunal held that the Panel did not consider all submissions referred to it about a planning scheme amendment as required by section 24 of the P&E Act (Australian Conservation Foundation v Minister for Planning [2004] VCAT 2029). The Tribunal ordered that the planning scheme amendment was not to be adopted or approved until the Panel allowed the hearing of further evidence and submissions relating to the issue of greenhouse gas emissions from the power station.
No nexus between a particular mine and climate change: Queensland's Xstrata decision
A recent decision in Queensland's Land and Resources Tribunal is the first in under Queensland law to consider the relevance of climate change in planning. In Re Xstrata Coal Queensland Pty Ltd [2007] QLRT 33, President Koppenol found that greenhouse gas emissions from a coal mine were a relevant consideration under the Mineral Resources Act 1989 (Qld) and Environmental Protection Act 1994 (Qld).
He rejected, however, green groups' application for conditions to be imposed on the mine to "avoid, reduce or offset the greenhouse gas emissions from the mining, transport and use of the coal from the mine". As in the mines case under the EPBC Act that we looked at above, here it was held that that it is very difficult to show what impact any particular mine has on climate change.
The Queensland Conservation Council has lodged an appeal against the decision.
Project approvals in WA: The EPA's Guidance Statement
While the potential for Courts in Western Australia to consider climate change in the context of project approvals exists, the WA courts have not yet been asked to do so in the same way as the courts in other Australian jurisdictions have.
However, the Environmental Protection Authority ("EPA") has taken an active role on the issue in its assessment of a number of recent industrial and resources projects, and this may explain (at least in part) why interest groups have been slower to litigate in this State. Among other things, the EPA has required some proponents to estimate the greenhouse gas emissions of their projects, address the possibility of carbon sequestration for their projects, and provide offsets for a proportion of their estimated emissions.
Climate change and sustainability: the NSW experience
In recent years the NSW Land and Environment Court has embraced the principles of ecologically sustainable development ("ESD") as a key decision-making tool in environmental laws, and particularly project approval laws. ESD is founded on the idea that "development should meet the needs of the present without compromising the ability of future generations to meet their own needs". Applying ESD, two recent cases have considered climate change in two very different ways.
In Gray v The Minister for Planning [2006] NSWLEC 720, Mr Gray claimed that a key step in the approval process for a proposed coal mine was flawed, because the Department of Planning had not addressed ESD in evaluating the proponent's environmental assessment for the mine. He argued that ESD would require consideration of the down stream impacts of the mine, including the greenhouse gas emissions from burning coal from it. Justice Pain agreed, but noted that the proponent had since undertaken an assessment of greenhouse gas emissions caused by the burning of the coal and therefore declined to strike down the approval process.
So far, we've seen climate change argued as a way to stop or encumber projects. It has been used, however, as an argument in favour of projects. In Taralga Landscape Guardians Inc v Minister for Planning and RES Southern Cross Pty Ltd [2007] NSWLEC 59, the court had to deal with residents' objections to the construction of a wind farm. The court recognised that there would be impacts upon the locals, but the public interest in renewable energy outweighed the potential impact of the wind farm.
Similarly in Victoria, where there is a state policy objective to promote the provision of renewable energy, the reduction of greenhouse gas emissions was a key consideration in the Minister for Planning's assessment and approval of the Bald Hills Wind Farm.
So which way is the wind blowing?
Our snapshot of case law around Australia reveals a variety of approaches to climate change in project approvals. To some extent, the different outcomes in these decisions reflects the different strategies employed by the parties in structuring and arguing their cases.
The common message is that climate change is becoming an important consideration in assessing various development proposals. Increasingly, as the cases for and against become more sophisticated, proponents of a greater range of projects will need to consider how they will address climate change in obtaining approval for their projects.
For further information, please contact Sallyanne Everett, Nick Thomas, Karen Trainor and Brad Wylynko.
