Modern Australian

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

  • Written by Justine Bell-James, Senior lecturer, The University of Queensland
Landmark Rocky Hill ruling could pave the way for more courts to choose climate over coal

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.

Read more: Adani court case leaves the climate change question unanswered

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.

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.

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

Read more http://theconversation.com/landmark-rocky-hill-ruling-could-pave-the-way-for-more-courts-to-choose-climate-over-coal-111533

NEWS

Quantum physics experiment shows Heisenberg was right about uncertainty, in a certain sense

Quantum particles are not really just particles... they are also waves.Shutterstock/agsandrewThe word uncertainty is used a lot in quantum mechanics. One school of thought is that this means there’s something...

Setka furore opens division within the labour movement – and there is no easy solution

Setka has form in attracting negative media attention as Victorian state secretary of the Construction, Forestry, Mining, Maritime and Energy Union.AAP/Daniel PockettJohn Setka’s reported comments about Rosie Batty have the...

Michelle Grattan on John Setka, press freedom, Adani approval and tax

Opposition leader Anthony Albanese has called for John Setka to be expelled from the Labor Party.AAP/Bianca de MarchiMichelle Grattan talks with University of Canberra Deputy Vice-Chancellor and Vice-President Academic, Professor...

Built like buildings, boab trees are life-savers with a chequered past

A boab tree in the Kimberley. Boab trees can live for thousands of years and their trunks hollow out as they get older. ShutterstockSign up to the Beating Around the Bush...

Proposal to mine fossil-rich site in New Zealand sparks campaign to protect it

Foulden Maar formed 23 million years ago and contains tens of thousands of fossils of extinct plants and animals.Supplied, CC BY-NDAn Australian company’s application to mine a fossil-rich site in...

what it's like to be a pensioner renting privately as Australia's housing costs soar

Older private renters are far more likely to experience loneliness than their counterparts in social housing and that loneliness can be acute.ShutterstockA growing number of older Australians don’t own their...

How a cyber attack hampered Hong Kong protesters

Massive public protests taking place in Hong Kong over the past week are aimed at a new extradition law, known as the Fugitive Offenders Ordinance, that would see accused criminals...

is white meat as bad for your cholesterol levels as red meat?

Whether you're eating red meat or white meat, a lean cut is the healthier way to go.From shutterstock.comYou’ve probably heard eating too much fatty red meat is bad for your...

the all-knowing narrator in Kim Scott's Taboo

View from a highway rest stop east of Ravensthorpe, Western Australia. In Kim Scott's Taboo, the landscape becomes a narrator.Chris Fithall/flickr, CC BYWhy do we tell stories, and how are...

Barry Humphries' humour is now history – that's the fate of topical, satirical comedy

Dame Edna Everage at Melbourne Town Hall in 2006 after being presented with the Key to the City. Simon Mossman/AAPLet’s face it, Thursday evenings on ABC television are not quite...

City temperatures and city economics, a hidden relationship between sun and wind and profits

Cairns Lagoon: as a good response to the tropical climate, it's a very active place but with little business activity.Silvia Tavares, Author providedUrban design undoubtedly influences the urban economy. A...

Children with autism may use memory differently. Understanding this could help us teach them

Some stereotypical behaviours of individuals with autism suggest they don’t use a certain type of memory in the same way others might.Annie Spratt/UnsplashAround one in every 70 Australians are on...

Popular articles from Modern Australian

Cosmetic Physician, Dr. Phoebe Jones shares her expert tips on how to treat the most asked about skincare problemsYvonne Allen: How to improve your sex life in your relationshipThe Rug Lady Announces The Launch Of The Latest Saffia Rug Range7 Tips To Get Your Home Ready For WinterFuture-proofing your career prospectsYour Winter Hot Water System Guide for 2019Circulatory System Diseases and Risk FactorsEXYRA eyewearShould you get a hair transplant in Turkey if your hair is grey?Do You Need a Tummy Tuck or Just Liposuction?Best 4 Sassicaia Wine with Soothing Taste and AromaMarvelous Makeover - 5 Tips to Revitalize Your Look This SummerWhat to Expect When Recovering from Gynecomastia SurgeryClickClack Pantry Range | Helping Australians save time & moneyThe Gentleman’s Guide to Wearing Custom Ties