Adani’s finch plan is approved, just weeks after being sent back to the drawing board


Stephen Garnett, Charles Darwin University; Brendan Wintle, University of Melbourne; David Lindenmayer, Australian National University; Don Franklin, Charles Darwin University, and John Woinarski, Charles Darwin University

The Queensland government has ticked off a crucial environmental approval for Adani’s Carmichael coalmine, bringing the contentious project a step closer to becoming reality.

It has approved Adani’s proposed management plan for the endangered black-throated finch, less than a month after the state’s environment department announced a delay in approval because the plan was judged to be inadequate.




Read more:
Why Adani’s finch plan was rejected, and what comes next


Four days after the May 18 federal election, in which the mine’s future was a prominent issue, Queensland Premier Annastacia Palaszczuk called for an end to the delays and uncertainty.

In a statement issued today, the government said it has now approved a “strengthened” version of the plan, submitted by Adani earlier this week.

Under the revised plan, Adani has now committed to:

  • “establish enhanced understanding” of the finch, with the help of “appropriate population studies”

  • implement “appropriate monitoring protocols” to track the finch’s population over time

  • restrict grazing in nearby areas.

The only remaining state environmental approval for the project now is Adani’s groundwater management plan, on which a decision is due by June 13.

Bad plan caused the delays

As members of the scientific panel that reviewed the finch management plan, we can understand the Premier’s frustration. There is no excuse for such a poor plan to have been put forward for approval when the company has been aware for almost a decade that the land it wants to mine is home to the largest known remaining population of the black-throated finch.

There has already been ample time to undertake the studies Adani has pledged to carry out in the future. Had it done so before now, it could have put its claims to be able to manage the finch’s extinction risk on a much more solid footing.

As it is, the plan we reviewed made biologically improbable assumptions about the finch, while ignoring what is known about the finch’s precipitous decline so far. Under the plan, people with the curious title of “fauna spotter-catchers” were to find finches and move them “to suitable habitat adjacent to the disturbance, if practical” before the habitat is destroyed.

It sounds impractical, and will in all likelihood prove to be so. If the adjacent habitat already has finches, it is likely to be “full” and so won’t be able to support mining refugees. If it lacks finches, there is probably a very good reason.

The finch has been observed only a handful of times in just a tiny proportion of the area purchased for conservation purposes near the mine site. The finch has had more than 10,000 years to occupy and breed in the proposed conservation area that is supposed to offset the impact of the mine. It hasn’t, and it probably won’t.

As far as can be determined by overlaying the available maps, the proposed conservation area has a different geology and soil type. Adani has categorically failed to provide robust scientific evidence to demonstrate that the conservation reserve will adequately offset the loss of the finches and the habitat in the mined area. It has had more than 10 years to conduct the science to provide the evidence.



Meanwhile, before the existing habitat is mined, the plan had talked about grazing being used to control bushfire fuel loads and reduce the abundance of a weed called buffel grass. Yet grazing is thought to be the main reason the finches have disappeared from most of their once vast range – they once occurred from the Atherton tablelands to northern New South Wales.

The new plan is said to “restrict grazing” but no details are yet available. Under the original plan, the cattle would have got fat on the buffel grass pastures just as they did in all the places where the finch once lived.

Rigorous research

What must really frustrate the Queensland Premier is the contrast between Adani’s efforts with the black-throated finch and the much more rigorous work done by mining companies who find themselves in similar situations. Rio Tinto, for example, is currently funding high-quality research on two other birds, the palm cockatoo and red goshawk, ahead of its planned expansion of bauxite operations on Cape York Peninsula.

Vista Gold, meanwhile, funded research on stress levels in Gouldian finches long before mining was planned to begin at its Mt Todd goldmine in the Northern Territory.

In criticising Adani’s plan, we are not criticising mining. Like all Australians, we use the products of mining every day. We enjoy a high standard of living that is delivered partly by royalties from mining. We also understand that miners (and politicians) in Queensland want to see jobs created.

Most mining companies, however, provide jobs while willingly abiding by national and state legislation. They compromise where necessary to minimise environmental harm. And crucially, they commission research to demonstrate how they can mitigate damage well before that damage occurs, rather than when their operations are already underway.




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In contrast, the so-called research and monitoring that went into Adani’s finch plan seems only to conclude that more research is needed. After nine years, Adani did not even know the population size of the finch, how it moves around the landscape, or even what it eats.

Given the time available, this bird could (and should) have been among the best-studied in Australia. The management plan could then have been based on robust evidence that would show how best to safeguard the finch population.

Now the research and monitoring is a hurried add-on with no proof that the threat posed to the finch can actually be solved and an extinction averted. Given the high stakes involved, Australians might reasonably have expected something altogether more rigorous.The Conversation

Stephen Garnett, Professor of Conservation and Sustainable Livelihoods, Charles Darwin University; Brendan Wintle, Professor Conservation Ecology, University of Melbourne; David Lindenmayer, Professor, The Fenner School of Environment and Society, Australian National University; Don Franklin, Adjunct Research Fellow, Research Institute for Environment and Livelihoods, Charles Darwin University, and John Woinarski, Professor (conservation biology), Charles Darwin University

This article is republished from The Conversation under a Creative Commons license. Read the original article.

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With the LNP returned to power, is there anything left in Adani’s way?


Samantha Hepburn, Deakin University

After months of “start” and “stop” Adani campaigning, the coalmine is poised to go ahead following the surprise success of the Coalition government at the federal election.

So is anything still stopping the coalmine from being built?

Australia has a federal system of government, but states own coal. This means the Queensland Labor government is responsible for issuing the Adani mining licence.

And there are suggestions pressure is mounting in the state Labor party for the final approvals to be passed.

Strategists have argued the state government must approve the Adani mine if they are to be re-elected next year. One of the reasons Labor lost votes in Queensland may have been because of perceived delays in the approval process by the Queensland Department of Environment and Science.




Read more:
View from The Hill: It’s the internal agitators who are bugging Scott Morrison on Adani


Now, Queensland premier Annastacia Palaszczuk has appointed her coordinator-general to oversee the remaining approvals. In a press conference, she said:

I think that the community is fed up with the processes, I know I’m fed up with the processes, I know my local members are fed up with the processes … We need some certainty and we need some timeframes — enough is enough.

But what has “delayed” the state government so far is its legal duty to make sure the coalmine has an effective plan to manage matters of environmental significance.

Before the election, the federal government already approved two controversial environmental plans – the groundwater management plan and the finch management plan. The only thing left now is for the Queensland Labor government to give its nod of approval.



Not ‘delay tactics’, but a legal duty

The federal government does not have jurisdiction over state resources unless the project impacts matters of national environmental significance.

And the Adani mine is one such project. The mine would remove the habitat of an endangered species and significantly impact vital underground water resources.

This means the project needed to be referred to the federal government.

The aim of this referral was to make sure the environmental assessment process would sufficiently prevent or reduce irreparable damage to the environment.




Read more:
Traditional owners still stand in Adani’s way


Generally, in a bilateral arrangement, the federal government authorises the state to conduct an environmental assessment. And this is the framework that has informed the Adani project from the outset.

This is our rule of law, and one that’s in the public interest.

So any suggestion the Queensland government engaged in “delay tactics” when they were carrying out these critical legal responsibilities is inaccurate and misconceives the fundamental legal responsibilities that underlie this process.

There are two more approvals left

There are two outstanding approvals required for the environmental conditions to be satisfied: the black-throated finch environmental management plan and the groundwater environmental management plan.

The habitat of the endangered black-throated finch must be protected.
Steve Dew, CC BY

Black-throated finch

The Queensland government rejected the black-throated finch management plan submitted by Adani last month. This was because the plan did not constitute a management plan at all.

If the finch’s habitat is destroyed by the coalmine, then it’s necessary to outline how this endangered species will be relocated, and how this relocation will be managed.

But the Adani management plan does not do this. Rather than setting up a conservation area for the finch, the Adani plan proposed establishing a cow paddock, which would destroy the grass seeds vital for the survival of the finch.

Clearly this plan does not comply with the environmental condition attached to its licence.




Read more:
Why Adani’s finch plan was rejected, and what comes next


Groundwater management

The Queensland Department of Environment and Science is currently reviewing the groundwater management plan and have sought further advice from Geoscience Australia and CSIRO.

Adani must address how the mine will impact the threatened Doongmabulla Springs in the Great Artesian Basin. This involves creating a groundwater model capable of estimating how much groundwater levels will decrease when water is used to extract the coal.




Read more:
Unpacking the flaws in Adani’s water management plan


This is important because the basin is a water supply for cattle stations, irrigation, livestock and domestic usage. It also provides vital water supplies to around 200 towns, which are entitled to draw between 100 and 500 million litres of water each year.

Any impact on the underground aquifers that feed into the Great Artesian Basin would not only be devastating for the environment, but also for all the communities that rely on its water resources.

The original groundwater model submitted by Adani was not “suitable to ensure the outcomes sought by the EPBC Act conditions are met”.

It’s unclear whether Adani’s resubmitted groundwater model still under-predicted the impact because the further submissions made by Adani have not been subjected to extensive review at the federal level.

Great care needs to be taken to ensure the expert advice from CSIRO and Geoscience is properly heeded.

The mine may cause the Doongmabulla Springs to cease flowing.
Lock the Gate Alliance/Flickr, CC BY

The Adani mine is an outlier in the global coal community

The approval of the Adani coalmine comes at a time when the global community is rapidly moving away from coal.

Germany, a pioneer of the mass deployment of wind and solar power generation, announced the phaseout of its 84 coalfired plants.

Britain has just had its first week without coal-fired electricity, and this new energy mix has rapidly become the “new normal”.




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But the international coal market is variable. India’s consumption is expected to rise by the end of 2023, but their aim is to reduce coal imports. And China’s coal consumption is projected to fall almost 3%, largely due to the country’s ambitious clean energy plans. What’s more, coal is in decline in the United States and across Europe generally.

The global economy is de-carbonising. As global warming accelerates and cleaner energy options gain more traction, coal will inevitably decline even further.

A hasty post-election approval of the outstanding environmental plans for Adani coalmine would not only conflict with our domestic legal framework, but also the broader imperatives of the international community.The Conversation

Samantha Hepburn, Director of the Centre for Energy and Natural Resources Law, Deakin Law School, Deakin University

This article is republished from The Conversation under a Creative Commons license. Read the original article.

Why Adani’s finch plan was rejected, and what comes next



The black-throated finch is on the verge of extinction.
Brian McCauley/flickr, CC BY-NC

Samantha Hepburn, Deakin University and April Reside, The University of Queensland

Adani’s plan to manage an endangered finch was rejected last week by the Queensland government, stalling progress on the Carmichael mine.

The mine would cover much of the best remaining habitat for the endangered black-throated finch. The Queensland government required Adani to commit to gathering more accurate finch population data, limit the cattle grazing in the finch conservation area and determine food availability throughout the year, before they could approve the plan.

The rejection is one of two outstanding environmental approvals required before Adani can commence work on the mine. The second is the plan to manage groundwater-dependent ecosystems, which the Queensland government has yet to come to a decision on.




Read more:
Unpacking the flaws in Adani’s water management plan


The federal government has been reported as “already approving” the finch plan. But legally, the Queensland government must determine whether the plan complies with the conditions of the environmental authority and, under the bilateral framework, the federal government must give due regard to this assessment.

What’s wrong with Adani’s plan?

Last Friday Queensland’s Department of Environment and Science decided not to approve Adani’s black-throated finch management plan because it does not fulfil certain basic requirements.

The decision is based on a detailed report from an independent expert panel.

The black-throated finch is on the verge of extinction, one of 238 threatened Australian birds.

The black-throated finch is experiencing habitat loss and degradation.
Steve Dew/flickr, CC BY



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The greatest threat to the black-throated finch is habitat loss: it has disappeared from over 80% of its original range. Strong protection, and careful management, of its remaining habitat is crucial.

The finch, once found across north-eastern Australia, is now largely found on Moray Downs and surrounding properties, north-west of Clermont in central Queensland. A core part of the habitat is within the 28,000 hectare (ha) footprint of the Carmichael mine, where there are far more black finches than elsewhere due to the intact woodlands and a history of minimal livestock grazing.

It is expected the mines will disturb 50,977 ha of black-throated finch habitat, and that 34,156 ha will be completely cleared.

A total of 87 square kilometres of habitat will be destroyed through the creation of open pits, and a further 61 square kilometres may be degraded beyond repair due to the influence of underground mining on groundwater.

After habitat loss, the second greatest threat to the finch is cattle grazing, which destroys the grass seeds they need to survive. Yet Adani’s management plan for the black-throated finch involved grazing cattle on areas that are supposed to be devoted to conservation of the finch.

Instead of establishing a finch conservation reserve, the Adani plan proposed what was in effect a paddock. Providing a species management plan that effectively conserves finch habitat is a core condition of Adani’s mining licence.

State vs federal priorities

The Queensland government’s rejection of the plan brings into stark focus some of the problems with the existing environmental assessment framework.

The Adani plan includes cattle grazing, despite the threat to finch habitats.
Shutterstock

The environmental authority for the mining licence was approved by the Federal government. The environmental management plan for the finch did not, however, address core impact concerns. And yet this is the very reason that the plan was required from the outset. The inadequacies of the plan only became apparent because of the oversight of the Queensland government.

The federal government has not been proactive despite’s its mandate under our National environment act – the Environmental Protection Biodiversity Conservation act. In fact, a recent analysis found the federal government has approved hundreds of projects to clear black-throated finch habitat over the last 18 years.




Read more:
Death by 775 cuts: how conservation law is failing the black-throated finch


There are clearly differences in priorities regarding the environment between a federal Liberal and a state Labor government. However, environmental assessment can only be effective if is not undermined by political agendas, and is grounded in scientific rigour and scrutiny.

A one-stop shop

At the federal level, any project likely to have a “significant impact” on a matter protected by the Environment Protection and Biodiversity Conservation Act must be referred to the federal environment minister.

If the minister decides the project impacts a matter of national environmental significance, he or she will then determine how to assess that project at the national level. Legislated options include: an environmental impact statement, a public environment report and public inquiry.

The federal government has entered into bilateral agreements with all state and territory governments. As a result, rather than the state and federal governments conducting separate assessment, the aim is to promote a single, focused environmental evaluation.

The Queensland government has entered into a bilateral assessment agreement with the Commonwealth government for Adani’s coal project, which effectively allows it to make an environmental assessment that the Commonwealth Minister will then take account of when deciding whether to grant approval.

This means that both the Queensland and the federal government are involved in the approval and assessment process environmental authorities and conditions, one of those being the management plan for the black-throated finch. In order to optimise outcomes they need to work together collaboratively.

Where to next?

The rejection means that Adani will now need to submit a new or revised plan that addresses the Queensland government’s concerns. In particular, Adani will need to limit cattle grazing in the conservation area, and gather more information regarding the availability of seed throughout the year.

This may take time but is critical, because in its current form, the plan does not meet the legal requirements for the Environmental Authority, which means that it cannot be approved at the state level.

Without state approval the Adani coal mine cannot proceed. The Queensland government has rigorously assessed Adani’s management plan by commissioning a report by an independent expert panel and then acting on the advice of this report.

This robust approach is crucial to the whole framework of environmental assessment. Genuine commitment to protecting endangered species and managing vital groundwater resources is vital if we want to reverse Australia’s dire trajectory of environmental decline.The Conversation

Samantha Hepburn, Director of the Centre for Energy and Natural Resources Law, Deakin Law School, Deakin University and April Reside, Researcher, Centre for Biodiversity and Conservation Science, The University of Queensland

This article is republished from The Conversation under a Creative Commons license. Read the original article.

Unpacking the flaws in Adani’s water management plan


Matthew Currell, RMIT University and Adrian Werner, Flinders University

Adani’s groundwater dependent ecosystem management plan for its proposed Carmichael coal mine was recently approved by federal Environment Minister Melissa Price, despite a review from CSIRO and Geoscience Australia that points out major problems with the modelling.

According to the minister, approval was granted only after the company made commitments to fully address these issues (a claim later called into question).




Read more:
Morrison government approves next step towards Adani coal mine


However, when we look closely at the flaws in Adani’s plan it’s not clear they can credibly be remedied. There’s a very real chance the mine could cause irreversible harm to the nationally significant Doongmabulla Springs.

What a groundwater model is supposed to do

The primary purpose of the model – as is the case for most groundwater models used in mining impact studies – is to determine the likely effect of mining on groundwater levels and flows of water to and from key areas.

One important goal of the model is to estimate the drawdown (decrease in groundwater levels) in aquifers around the mine as it pumps water and digs through aquifers to reach the coal.

Drawdown may cause groundwater levels to decline below thresholds critical to the function of whole ecosystems, such as (in this case) the Doongmabulla Springs.

Groundwater models can also be used to assess changes in flows of water to and from springs and streams, such as the Carmichael River, which crosses the mine site.

What flaws in Adani’s modelling were identified?

CSIRO and Geoscience Australia’s review pointed out three major flaws:

1. Over-prediction of flow from the Carmichael River to groundwater

Groundwater and surface water are intimately connected in the water cycle. For example, in some areas surface water can “recharge” aquifers, while in others aquifers provide water that keeps rivers flowing.

According to the review, Adani has overestimated how much water would flow from the Carmichael River into the aquifers below. This means there is in reality less water available to replenish the groundwater system below the river, which in turn means that the mine will likely cause greater groundwater drawdown than predicted.

2. The hydraulic parameters chosen for key geological units

A fundamental part of any groundwater model is the hydraulic properties selected for each geological layer through which groundwater moves. The most important is hydraulic conductivity: a measure of how much water can be transmitted through an aquifer over time. The review found that Adani’s model uses hydraulic conductivity values significantly different from the values estimated by previous testing of the geological layers at the mine site.

For example, Adani’s model assigned one key layer (the Rewan Formation) much lower hydraulic conductivity values than actually indicated when consultants tested this layer.

This is critically important, as it is the main layer separating the coals that will be mined from shallower aquifers. CSIRO and GA’s conclusion was that this also caused the model to predict less drawdown at the Doongmabulla Springs than is likely in reality.




Read more:
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3. Bore heights used to calibrate the model were incorrect

According to the Australian Groundwater Modelling Guidelines, groundwater models should be calibrated. This involves comparing predictions made by the model with already measured water levels and other field data.

Calibration fine-tunes models, ensuring they are capable of replicating known behaviour, before predicting future behaviour. Correcting errors identified in the heights of some bores used in the model resulted in a lower overall match between modelled and observed water levels from the site.

The Carmichael River will be affected by Adani’s mine.
Lock The Gate Alliance/flickr, CC BY

Significance of these issues

These flaws are of major significance. If the model is corrected to address them, the review points out that the drawdown at the Doongmabulla Springs will in all likelihood be higher than required under Adani’s federal approval conditions.

We have published peer-reviewed science pointing out additional problems, which the review also noted.

A key uncertainty yet to be resolved is determining the predominant aquifers contributing water flow to the Doongmabulla Springs. It’s possible there exists a deeper source aquifer (rather than, or in addition to, the aquifer assumed by Adani). This has further implications for the level of impact the mine will have on the springs, and the effectiveness of the proposed monitoring program.

Adani was not required to address these problems prior to federal approval of its groundwater plans and is not required to do so until two years after mining activity begins (although, the Queensland government may yet require this).

This raises questions about the environmental approvals process, which currently allows major scientific issues to remain unresolved. Prior to approval, there are opportunities for scrutiny of a project’s impacts, which can result in major project modifications, strict operating conditions or even (in rare cases) rejection. Following approval, opportunities for independent scientific and public input and further modifications are far more limited.

‘Adaptive management’ will not protect the Doongmabulla Springs

In the decision reached by the Queensland Land Court following an objection to the mine in 2014-15, significant uncertainty about its future impacts was recognised. However, it was concluded “adaptive management” would nonetheless safeguard the Doongmabulla Springs. This argument was also the basis for federal approval under the then environment minister, Greg Hunt.

But what is “adaptive management” and can it be meaningfully used here? We would argue no.

The mine may cause the Doongmabulla Springs to cease flowing.
Lock The Gate Alliance/flickr, CC BY

Adaptive management is essentially when a company commits to flexibly changing its approach as it learns more about the environmental impact of its activities.




Read more:
Why does the Carmichael coal mine need to use so much water?


However, there is a significant risk that the mine may cause the Doongmabulla Springs to irreversibly cease flowing. Adaptive management, as the US Department of the Interior points out, cannot be used if decisions cannot be meaningfully revisited and modified.

Indeed, Adani has not defined substantive corrective measures for reversing future spring-flow impacts from mining – an essential element of adaptive management. It’s critical Adani puts forward its plan for dealing with these very real risks. Without a credible plan, regulators cannot hope to make an informed decision about the risk the mine poses to the Doongmabulla Springs.The Conversation

Matthew Currell, Associate Professor in Environmental Engineering, School of Engineering, RMIT University and Adrian Werner, Professor of Hydrogeology, Flinders University

This article is republished from The Conversation under a Creative Commons license. Read the original article.

Morrison government approves next step towards Adani coal mine


Michelle Grattan, University of Canberra

The Morrison government has ticked off on the groundwater management plan for the proposed Adani coal mine, an important but not a final step for the central Queensland project receiving the go-ahead.

The decision, taken by Environment Minister Melissa Price, comes after intense pressure from Queensland Liberal National Party members, including a threat by senator James McGrath to publicly call for Price’s resignation if she failed to treat the Adani project fairly.




Read more:
View from The Hill: It’s the internal agitators who are bugging Scott Morrison on Adani


But the Adani decision will not help Liberals fighting seats in the south, with strong anti-Adani campaigns in some key electorates.

Price said in a statement on Tuesday: “CSIRO and Geoscience Australia have independently assessed the groundwater management plans for the Carmichael Coal Mine and Rail Infrastructure project”, and both had confirmed the revised plans met strict scientific requirements.

“Following this independent assessment and the Department of Environment and Energy’s recommendation for approval, I have accepted the scientific advice and therefore approved the groundwater management plans” for the mine and rail infrastructure under Environmental Protection and Biodiversity Conservation Act.

She said the decision did not amount to final approval for the project.

It needed further approvals from the Queensland government before constructing could commence. So far only 16 of 25 environmental plans have been finalised or approved by the Commonwealth and Queensland with nine more to be finalised.

The project “must meet further stringent conditions of approval from the Commonwealth before it can begin producing coal,” Price said.

It had “been subject to the most rigorous approval process of any mining project in Australia,” she said.

Resources Minister Matt Canavan, a Queenslander who has been agitating for progress on the mine, said: “I welcome these further approvals. Now we need the state Labor government to stop dragging their heels and get on with the job of creating these jobs.”

Bill Shorten – who, like the government, has been caught between the conflicting imperatives of campaigning in central Queensland and in southern Australia on this issue – said the Queensland government now had to go through its processes.

Labor would “adhere to the law” and be “guided by the science,” he said. “We are not interested in sovereign risk.”

Referring to the pressure within the Coalition, Shorten said: “Trying to pressure people now creates a cloud over a process that didn’t need to be there but for the government’s division in their own ranks”.

Labor’s climate spokesman Mark Butler said that people across Australia would be asking themselves “how can you have any confidence that this decision was made on the merits of the case rather than because of the internal division and chaos in this government?”.




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The Australian Conservation Foundation’s Christian Slattery said “Coal-loving Coalition MPs appear to have strongarmed the Environment Minister into granting Adani access to Queensland’s precious groundwater on the eve of the election”.

Slattery said that if Price had been pressured to rush through the approval ahead of the election, the decision might be open to legal challenge.

He said the Queensland government was yet to sign off on Adani’s Black-Throated Finch Management Plan and Groundwater Dependent Ecosystem Management Plan.

“And, importantly, Adani does not have federal approval for the proposed above-ground water infrastructure it requires to support its proposed thirsty coal mine,” Slattery said.

GetUp said there would be a backlash against the decision. “The Coalition can expect to lose a swathe of seats around Australia for their capitulation to a single coal company at the expense of the community.

“A storm of local groups are already hard at work in Kooyong and Flinders, and now GetUp is going to make an extra 100,000 calls into Flinders and 80,000 calls into Kooyong. This could cost Josh Frydenberg and Greg Hunt their jobs”.

Tasmanian independent MP Andrew Wilkie said: “This decision is environmental vandalism at its most extreme, facilitated by the most useless environment minister the country’s ever seen”.

In a statement Adani complained about its treatment from the Queensland government.

“Throughout the past 18 months, the Federal Department provided us with certainty of process and timing, including the steps involved in the independent review by CSIRO and Geoscience Australia experts.

In contrast, the Queensland government has continued to shift the goal posts when it comes to finalising the outstanding environmental management plans for the mine and is standing in the way of thousands of jobs for Queenslanders.

It’s time the Queensland government gave us a fair go and stopped shifting the goal posts so we can get on with delivering these jobs.”The Conversation

Michelle Grattan, Professorial Fellow, University of Canberra

This article is republished from The Conversation under a Creative Commons license. Read the original article.

Landmark Rocky Hill ruling could pave the way for more courts to choose climate over coal



File 20190211 174883 r10bym.jpg?ixlib=rb 1.1
A favourite argument of coal proponents is the idea that if their mine is knocked back, someone else will simply dig up coal elsewhere.
Mister Mackenzie/Wikimedia Commons, CC BY-SA

Justine Bell-James, The University of Queensland

On Friday, Chief Judge Brian Preston of the New South Wales Land and Environment Court handed down a landmark judgement confirming a decision to refuse a new open-cut coal mine near Gloucester in the Hunter Valley. The proposed Rocky Hill mine’s contribution to climate change was one of the key reasons cited for refusing the application.

The decision has prompted celebration among environmentalists, for whom climate-based litigation has long been an uphill battle.




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Defeating a mining proposal on climate grounds involves clearing several high hurdles. Generally speaking, the court must be convinced not only that the proposed mine would contribute to climate change, but also that this issue is relevant under the applicable law.

To do this, a litigant needs to convince a court of a few key things, which include that:

  • the proponent is responsible for the ultimate burning of the coal, even if it is burned by a third party, and

  • this will result in increased greenhouse emissions, which in turn contributes to climate change.

In his judgement, Preston took a broad view and readily connected these causal dots, ruling that:

The Project’s cumulative greenhouse gas emissions will contribute to the global total of GHG concentrations in the atmosphere. The global total of GHG concentrations will affect the climate system and cause climate change impacts. The Project’s cumulative GHG emissions are therefore likely to contribute to the future changes to the climate system and the impacts of climate change.

Other courts (such as in Queensland, where the proposed Adani coalmine has successfully cleared various legal hurdles) have tended to take a narrower approach to statutory interpretation, with climate change just one of numerous relevant factors under consideration. In contrast, Preston found climate change to be one of the more important factors to consider under NSW legislation.

To rule against a coalmine on climate grounds, the court also needs to resist the “market substitution” argument – the suggestion that if the proponent does not mine and sell coal, someone else will. This argument has become a common “defence” in climate litigation, and indeed was advanced by Gloucester Resources in the Rocky Hill case.

Preston rejected the argument, describing it as “flawed”. He noted that there is no certainty that overseas mines will substitute for the Rocky Hill coalmine. Given increasing global momentum to tackle climate change, he noted that other countries may well follow this lead in rejecting future coalmine proposals.

He also stated that:

…an environmental impact does not become acceptable because a hypothetical and uncertain alternative development might also cause the same unacceptable environmental impact.

What does the future now hold?

There should be no doubt that this is a hugely significant ruling. However, there are several caveats to bear in mind.

First, there are avenues of appeal. In the absence of a robust legislative framework prohibiting mining operations, it is ultimately up to a court to interpret legislation and weigh up the relevant factors and evidence. The NSW Land and Environment Court has a strong history of progressive judgements, and it is not certain that this example will be followed more widely in other jurisdictions. That said, Preston’s reasoning is firmly grounded in an analysis of the relevant scientific and international context, and should be a highly persuasive precedent.

Second, it is also important to remember that this judgement arose from an initial government decision to refuse the mine, whereas many other legal challenges have arisen from a mining approval.

Finally, climate change was not the only ground on which the mine was rejected. The proposed mine would have been close to a town, with serious impacts on the community.




Read more:
Carmichael mine jumps another legal hurdle, but litigants are making headway


Nevertheless, this decision potentially opens up new chapter in Australia’s climate litigation history. Preston’s ruling nimbly vaults over hurdles that have confounded Australian courts in the past – most notably, the application of the market substitution defence.

It is hard to predict whether his decision will indeed have wider ramifications. Certainly the tide is turning internationally – coal use is declining, many nations have set ambitious climate goals under the Paris Agreement, and high-level overseas courts are making bold decisions in climate cases. As Preston concluded:

…an open cut coal mine in this part of the Gloucester valley would be in the wrong place at the wrong time… the GHG emissions of the coal mine and its coal product will increase global total concentrations of GHGs at a time when what is now urgently needed, in order to meet generally agreed climate targets, is a rapid and deep decrease in GHG emissions.

Indeed, it is high time for a progressive approach to climate cases too. Hopefully this landmark judgement will signal the turning of the tides in Australian courts as well.The Conversation

Justine Bell-James, Senior lecturer, The University of Queensland

This article is republished from The Conversation under a Creative Commons license. Read the original article.

Adani’s new mini version of its mega mine still faces some big hurdles


Samantha Hepburn, Deakin University

Indian mining multinational Adani has announced that it will self-fund a significantly smaller coal mine in the Galilee Basin, after failing to secure finance from more than 30 domestic and international banks and lenders.

Federal Resources Minister Matt Canavan has described Adani as a “little Aussie battler” and praised the newly scaled-down project’s purported regional economic benefits.

The scaling down of the project has been extensive. Adani Mining chief executive Lucas Dow said the mine will cost A$2 billion and initially produce up to 15 million tonnes of thermal coal per year, with plans to ramp production up to 27.5 million tonnes per year.

That is far more modest than the A$16.5 billion investment in digging up 60 million tonnes of coal a year which the company first announced in 2010. The original plan was to transport the coal along a new 388km rail line to a specially built terminal at Adani’s Abbot Point coal port, for export to India. Under the scaled-down version of the project, Adani will need to secure access to existing rail infrastructure.




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But there is still no guarantee that the mine will necessarily go ahead. Opening a new coal mine – even one with a relatively modest A$2 billion price tag – is socially and environmentally irresponsible, given the urgency with which the Intergovernmental Panel on Climate Change says we need to reduce global greenhouse emissions, the fact that Australia is not currently on track to meet its own emissions targets, and of course the fact that 2018 is on course to become the fourth-hottest year on record.

The economics barely stack up either. A recent IEEFA report indicated that coal is facing a terminal decline as Asian markets make the transition to cheaper and more efficient renewable alternatives. Existing thermal coal power in India costs US$60-80 per megawatt-hour, roughly double the cost of new renewable generation. The Mundra coal plant, where much of the Adani coal was destined, is already operating under capacity and has been closed for significant periods.

Adani has decided not to proceed with its initially planned 388km rail link, and will instead aim to use the existing Aurizon rail infrastructure. However, there is a 200km gap in this link which will cost a significant amount to bridge – albeit almost certainly much less than the A$2.3 billion cost of the originally planned railway. Aurizon Network is legally obliged to consider Adani’s access application, but has not yet assessed and approved it.

Environmental and Indigenous issues

Then there are the existing and significant concerns regarding Adani’s environmental management of issues such as water contamination in the Caley Valley Wetlands near the Abbot Point terminal. These will not disappear just because the project has been revised.




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Gaining the consent of Traditional Owners will also be crucial, yet the 12-member native title representation group is split down the middle. Adani’s existing Indigenous Land Use Agreement has been appealed in the High Court by the Wangan and Jagalingou people, on the basis that the group has not genuinely consented to the agreement, and that overriding native title to make way for a coalmine is socially and culturally regressive. If the court does not uphold the agreement, this would create profound difficulties for the project as they may not be able to proceed with the development of the coal mine to the extent that it interferes with Indigenous landholdings.

So, while the decision of Adani to self-fund a scaled-down coalmine in Queensland might indicate determination, it also suggests a resistance to, and misunderstanding of, a rapidly changing energy sector and the broader social and environmental responsibilities that this change necessitates.The Conversation

Samantha Hepburn, Director of the Centre for Energy and Natural Resources Law, Deakin Law School, Deakin University

This article is republished from The Conversation under a Creative Commons license. Read the original article.