A recent case from New South Wales (NSW) Australia has directly challenged a development project that is at odds with GHG emission reduction targets. Hailed as a ‘landmark decision’ in climate litigation, the case represents the first time an Australian court has refused to approve a coal mining project not only on the basis of unacceptable ‘planning, visual and social impacts’, but to prevent a new source of GHG emissions.

This landmark decision tells an important story, but how did it come to be? In March 2010, the mining company, Gloucester Resources Limited (GRL), commenced extensive exploration, preparation and investigation into a mining proposal known as the Rocky Hill Coal Project (the Project).[1] The proposed Project site covered approximately 830 ha, in a valley near Rocky Hill and the small country town of Gloucester in NSW, Australia.[2] GRL sought to mine twenty million tonnes of coal from an open cut mine on the Gloucester valley site, over a period of sixteen years.[3]

Two years after the initial project planning, GRL applied to the Department of Planning and Environment (DPE) for development consent to begin the Project. In 2016, the application was accepted, amendments were made, and the application was placed on public exhibition for three months. GRL promised numerous community benefits, including up to sixty construction jobs and 110 operator jobs, apprenticeships for young people, community partnerships and grants, more than two million dollars of road improvements, and approximately $200 million for the NSW Government in royalties and taxes.[4] But the proposal divided the local community of Gloucester. During the exhibition period, 2,570 submissions were received, with approximately 90% in opposition to the Project.[5] By the end of 2017, following the DPE’s recommendation, the amended application was rejected.[6] The Planning and Assessment Commission, acting on behalf of the Minister for Planning, gave three reasons for the refusal, including that the Project was not in the public interest.[7]

GRL filed an appeal. The local community action group, Groundswell Gloucester Inc, joined the Minister for Planning as respondents. On February 8^th, 2019, nine years after project planning began, the decision on Gloucester Resources Limited v Minister for Planning was released. Chief Justice Preston (Preston CJ) of the New South Wales Land and Environment Court dismissed the appeal and rejected the development application.[8]

After a lengthy process of planning, in an Australian state whose economy is closely tied to the mining industry, which contributed $1.8 billion in royalties in 2017-18 (equivalent to almost half the of NSW Government’s 2017-18 Budget surplus[9]) and provides more than 40,000 local jobs[10], the question must be asked: what went wrong for GRL? Why did the promise of local employment and expenditure lose, and to whom? The answer it seems, at least in part, is climate change.

When balancing the benefits and the impacts of the mine, Preston CJ concluded the following:

“An open cut coal mine in this part of the Gloucester valley would be in the wrong place at the wrong time. Wrong place because an open cut coal mine in this scenic and cultural landscape, proximate to many people’s homes and farms, will cause significant planning, amenity, visual and social impacts. Wrong time because 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.”[11]

The court heard substantial scientific evidence about the effects of climate change, including from Professor Will Steffen, an earth systems scientist expert. Professor Steffen highlighted that climate change consequences have not only been felt around the world but also significantly by the NSW region containing the proposed development. This included coastal flooding, worsening heatwaves, increased bushfire risks, and changes in rainfall patterns with greater climate fluctuations predicted in the future.[12] Preston CJ concluded that such dire consequences “should be avoided”.[13]

Importantly, Preston CJ not only accepted the causal link between the Project’s cumulative GHG emissions and climate change, but found it immaterial that the emissions from the mine would represent only a fraction of total global GHG emissions. He reasoned that all emissions contribute to climate change. Therefore, “multiple local actions” are needed to mitigate emissions at sources and remove GHGs by sinks.[14] The Chief Justice also accepted Professor Steffen’s evidence on the “carbon budget” approach required to achieve long term temperature limitation goals. David Morris, the CEO of the NSW Environmental Defenders Office (the community legal center that represented Groundswell Gloucester in the case), commented:

“…the judgment presents a foundational question for all decision makers. It is this: given that, if we are to remain within the global carbon budget, only a finite amount of additional carbon can be burned, and that existing approvals already exhaust that budget, why should this particular project be prioritized over any other, or displace an existing approval? That is ‘the wrong time’ test and will prove an insurmountable barrier for many projects going forward”.[15]

Preston CJ reasoned that the Project’s approval would not assist in the rapid and deep reductions in GHG emissions needed to balance Australia’s emissions and to meet goals agreed upon under the Paris Agreement.[16] Despite the fact the Project would yield public benefits, including economic benefits, it would also have “significant negative impacts”.[17] On balance, the Project’s poor environmental and social impacts justified its refusal.[18]

Future NSW fossil fuel projects now stand to be subject to “the wrong time test”. While Preston CJ rejected the idea that no future fossil fuel development should ever be approved, he noted that such development may now require specific and certain mitigation efforts, for example through carbon capture and storage or offsets, as a prerequisite for approval. If the Paris Agreement and the recent UN IPCCC warnings[19] on the need for urgent action to limit catastrophic climate change are to be taken seriously, the “right time” for fossil fuel projects whose proponents are unwilling to engage in climate realities is over.

[1] Rocky Hill Coal Project, Project Overview, (2019) https://www.rockyhillproject.com.au.

[2] Rocky Hill Coal Project, Location, (2019) https://www.rockyhillproject.com.au/project-overview/location/.

[3] Gloucester Res Ltd v Minister for Planning [2019] NSWLEC 7,4.

[4] Rocky Hill Coal Project, Community Information, (2019) https://www.rockyhillproject.com.au/community-information/.

[5] Gloucester Res Ltd v Minister for Planning [2019] NSWLEC 7,20.

[6] Id. at 7.

[7] Id. at 22.

[8] Id. at 700.

[9] NSW Mining, Home, (2019) http://www.nswmining.com.au.

[10] NSW Mining, Industry, (2019) http://www.nswmining.com.au/industry/mining-good-for-jobs-good-for-nsw-(1).

[11] Gloucester Res Ltd v Minister for Planning [2019] NSWLEC 7, 699.

[12] Id. at 436.

[13] Id. at 699.

[14] Id. at 515.

[15] EDO NSW, Landmark legal win for climate and community, (2018) https://www.edonsw.org.au/gloucester_climate_win.

[16] Id. at 526-527.

[17] Id. at 687.

[18] Id. at 688.

[19] Global Warming of 1.5 °C, Summary for Policymakers, Intergovernmental Panel on Climate Change, (Oct. 2018), https://report.ipcc.ch/sr15/pdf/sr15_spm_final.pdf.