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



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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.




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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.

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Australia: New South Wales – Gloucester


The latest news on Malcolm Naden’s Arrest

Australia: New South Wales – Gloucester


Finally, Malcolm Naden Has Been Arrested

The article below reports on the news many have been waiting for for some time – the arrest of Malcolm Naden.

For more, visit:
http://www.theaustralian.com.au/news/nation/australias-most-wanted-man-malcolm-naden-arrested-after-seven-year-manhunt/story-e6frg6nf-1226306768908

Australia: NSW – Barrington Tops Region


The Hunt for Malcolm Naden Continues

The hunt continues for Australia’s most wanted man in the Barrington Tops region of New South Wales. For those travelling to the region, the latest information can be found below.

See also:
http://www.adelaidenow.com.au/news/national/malcolm-naden-armed-with-semi-automatic/story-e6frea8c-1226297446631

Australia: New South Wales – Barrington Tops Warning


Until such time as fugitive Malcolm Naden is captured, the Barrington Tops and surrounding regions should be considered potentially dangerous, given how desperate his situation has become. Having said that, realistically, he does not appear close to being captured at this stage. Certainly the police are closer than they have been for some time, but he is still successively avoiding capture. If he chooses to go to ground in the mountains following two close encounters with police in a fortnight, it is difficult to see how police will be able to capture him anytime soon.

Destination: Back Packing Holiday


I have pretty much determined that my holiday is going to be a back packing trip through the wilderness along the ‘Tops to Myall’s Heritage Trail.’ Now I need to decide on just what part of the trail I’ll do, if indeed not all of it.

One of the determining factors for the trip will be the availability of transport. I would need to get to the Barrington Guesthouse in order to start the walk if doing the whole walk, or either get home from the Gloucester area or to the Gloucester area to start the walk. The start from near Gloucester wouldn’t be an issue – that would be fairly easy to solve with Countrylink and family I think (combo). I’m not sure about the Guesthouse option just yet, but looking into it a little. I could easily walk from where I live to the Gloucester area (and for that matter do a return walk if necessary – though I’d prefer to not do so). I also think that Countrylink could easily drop me off near the start of the walk up that way (along the Buckets Way) should that be necessary.

The most likely outcome is that I’ll travel to Gloucester with Countrylink and then get a lift to the walk starting point from my family the next day. I could try getting a lift to the guesthouse with the family also, but that is unlikely to be an option I would think.

Holiday Planning


It is time to start planning my next holiday. First step in the process was to settle on a date for it – this has been done and I have booked in two weeks annual leave for it.

The second stage is now to establish a location for the holiday. I’m toying with a couple of ideas at the moment. The first is to travel to Cathedral Rocks National Park and do some walks in that area. The second idea is to do some overnight walks through the Myall Lakes National Park through to the Gloucester area. I ruled out the possibility of travelling to the red centre due to rental car restrictions, so it is down to these two possibilities at this stage. I am leaning towards the latter at this stage however.