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

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.

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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Supreme Court ruling on NZ’s largest irrigation dam proposal respects conservation law and protected land

This aerial view shows the catchment of the Makaroro river, in the Ruahine Forest Park. The river was to be dammed for the Ruataniwha irrigation scheme.
Peter Scott, CC BY-ND

Christine Cheyne, Massey University

Earlier this month, New Zealand’s Supreme Court rejected a proposed land swap that would have flooded conservation land for the construction of the country’s largest irrigation dam.

The court was considering whether the Hawke’s Bay Regional Council’s investment arm could build a dam on 22 hectares of the protected Ruahine Forest Park in exchange for 170 hectares of private farm land. The proposed dam is part of the $900 million Ruataniwha water storage and irrigation scheme.

The New Zealand government’s response to the ruling was to consider a law change to make land swaps easier. Such a move flies in the face of good governance.

Natural capital vs development

The Supreme Court ruling has significant implications for the Ruataniwha dam. In addition, it asserts the importance of permanent protection of high-value conservation land.

The ecological value of the Ruahine Forest Park land was never in question. The conservation land includes indigenous forest, a unique braided river and wetlands that would have been destroyed.

The area is home to a dozen plants and animals that are classified as threatened or at risk. The developer’s ecological assessment acknowledged the destruction of ecologically significant land and water bodies. However, it argued that mitigation and offsetting would ensure that any effects of habitat loss were at an acceptable level.

The Mohaka River also flows through the Hawke’s Bay.
Christine Cheyne, CC BY-ND

Challenge to NZ’s 100% Pure brand

New Zealand’s environmental legislation states that adverse effects are to be avoided, remedied or mitigated. However, no priority is given to avoiding adverse effects. Government guidance on offsetting does not require outcomes with no net loss.

In Pathways to prosperity, policy analyst Marie Brown argues that offsetting is not always appropriate when the affected biodiversity is vulnerable and irreplaceable.

Recent public concern about declining water quality has provided significant momentum to address pollution and over-allocation to irrigation. Similarly, awareness of New Zealand’s loss of indigenous biodiversity is building.

These issues were highlighted in this year’s OECD Environmental Performance Review and a report by the Parliamentary Commissioner for the Environment on the parlous state of New Zealand’s native birds.

Both issues damage New Zealand’s 100% Pure branding and pose significant risks to tourism and the export food sector. Indigenous ecosystems are a huge draw card to surging numbers of international tourists.

Battle lines in fight for the environment

Powerful economic arguments have been put forward by business actors, both internationally and in New Zealand. For example, Pure Advantage supports protection of ecosystems and landscapes. Yet, governance mechanisms are limited.

Since 2009, environmental protection and conservation have increasingly become major battle lines as the National government doggedly pursues its business growth agenda. This favours short-term economic growth over environmental protection.

A key principle behind the Supreme Court decision is that protected conservation land cannot be traded off. It follows a High Court case in which environmental organisations argued unsuccessfully that the transfer of land was unlawful.

However, in August 2016, the Court of Appeal ruled against the Director-General of Conservation’s decision to allow the land transfer. It had been supported on the grounds that there would be a net gain to the conservation estate. The court’s ruling said that the intrinsic values of the protected land had been disregarded.

The Supreme Court has reinforced the importance of the permanent protection status recognised by the Court of Appeal.

Anticipatory governance

In response to the court’s decisions, the government argued that land swaps of protected areas should be allowed. It may seek to amend legislation to facilitate such exchanges.

The Supreme Court made reference to section 2 of the Conservation Act 1987. It defines conservation as “the preservation and protection of natural and historic resources for the purpose of maintaining their intrinsic values, providing for their appreciation and recreational enjoyment by the public, and safeguarding the options of future generations”.

Section 6 of the act states that the Department of Conservation should “promote the benefits to present and future generations of the conservation of natural and historic resources”. As such, the legislation and the department contribute to what is known as “anticipatory governance”.

Anticipatory governance is fundamental to good governance, as Jonathan Boston argues in his recent publication Safeguarding the future: governing in an uncertain world.

It requires protecting long-term public interests. Conservation of our unique ecosystems and landscapes protects their intrinsic values and the services they provide. These include tourism benefits and basic needs such as water, soil and the materials that sustain human life.

The department has correctly recognised that conservation promotes prosperity. However, long-term prosperity is quite different from the short-term exploitation associated with the government’s business growth agenda.

This promotes exploitation in the form of mining on conservation land and increased infrastructure for tourism and other industries, such as the proposed Ruataniwha dam.

Amending the Conservation Act to allow land swaps involves a significant discounting of the future in favour of present day citizens. This is disingenuous and an affront to constitutional democracy. It would weaken one of New Zealand’s few anticipatory governance mechanisms at a time when they are needed more than ever.

Christine Cheyne, Associate Professor, Massey University

This article was originally published on The Conversation. Read the original article.