Adani court case leaves the climate change question unanswered

The Federal Court has overturned the federal environmental approval of Adani’s A$16.5 billion coalmine project in central Queensland.

The court ordered the approval of the Carmichael mine licence in the Galilee Basin to be set aside, meaning that Adani will have to re-apply for the coal licence and the federal environment minister Greg Hunt will have to re-approve the application.

Sue Higginson, principal solicitor of the Environment Defenders Office NSW, said that the decision of the Federal Court was “based on a failure by the minister to have regard to the conservation advices for two federally listed vulnerable species” – the yakka skink and the ornamental snake. The lawsuit also alleged a failure “to consider global greenhouse emissions from the burning of the coal”.

The Carmichael mine received federal environmental approval in July 2014.

Greenpeace has estimated that the mine, operating at full capacity, would extract enough coal to generate 128 million tonnes of carbon dioxide emissions every year, equivalent to about a quarter of Australia’s current total emissions from fuel combustion.

So what does the order mean for the Carmichael mine?

A skink and a snake

As I’ve explained previously on The Conversation, the Mackay Conservation Group brought an action to the Federal Court alleging that minister Hunt failed to take into account considerations set out in the Environment Protection and Biodiversity Conservation (EPBC) Act.

The court found that failure of the minister to take account of two endangered species specifically listed in the EPBC Act – the yakka skink and the ornamental snake – was sufficient for it to be overruled.

In reviewing the endangered species the minister was not presented with the correct conservation documents which meant that any conditions that were included in the approval may have been insufficient to satisfy the requirements of the EPBC Act.

One of the specific aims of the EPBC Act is to ensure that endangered species are properly protected and the endangered species list is specifically identified as a matter of national environmental significance.

There are also concerns that the mine will affect other vulnerable species - black-throated finch - and ancient groundwater springs.

Ignoring greenhouse gases

However, one of the other considerations raised by the Mackay conservation group – the greenhouse gas emissions released from burning extracted coal overseas – was left unresolved by the court.

The EPBC Act specifically requires the principles of ecological sustainable development to be taken into account when assessing matters of national environmental significance. Whether this includes consideration of the climate change implications for the Great Barrier Reef National Park that may flow from the increase in greenhouse gas emissions from such a coal project was not resolved.

The environment minister is required under the EPBC Act to give regard to the social and economic impacts of issuing a coal licence in such an environmentally significant area. In making this assessment, the minister is required to consider the principles of ecologically sustainable development.

This means that the minister must evaluate not only how the land will be impacted, but also broader issues relevant to intergenerational equity. The EPBC Act also specifically mandates that the precautionary principle be taken into account in making decisions and approvals in areas of national environmental significance, like the Great Barrier Reef National Park.

Previous decisions of the Federal Court in this regard have held the impact of greenhouse gas emissions from burning coal does come within the scope of the EPBC Act and should be assessed, despite the fact that emissions are difficult to measure and that climate change is caused by a range of different contributors. The focus is the extent of the greenhouse gas emissions rather than the location where they are emitted.

Climate change is a global rather than a domestic concern. The impact of climate change is one of the biggest threats to the preservation of the Great Barrier Reef.

A “statement of reasons” issued by minister Hunt to the Mackay Conservation Group doesn’t refer to the impact of greenhouse gas emissions from burning the coal outside Australia. It appears the minister felt that the direct emissions were properly controlled by strategies proposed in accordance with the National Greenhouse Gas Reporting requirements.

What does it mean for Adani?

The decision by the Federal Court to overrule the licence means that the Federal Court felt that the exercise of power by the Federal Minister in issuing the coal licence to Adani was improper.

For Adani to continue with its coal project it will need to re-apply for the coal licence and the Federal Minister must re-approve the licence taking proper account of the mandated relevant considerations set out within the EPBC Act.

This is likely to involve a more detailed evaluation as to how the coal project, should it proceed, will impact upon the federally listed endangered species and to include robust conditions regarding the future management of those species.

Hopefully, any future assessment will also involve a more detailed evaluation of the impact of greenhouse gas emissions at both the global and domestic level. This is an increasingly crucial concern given the importance of mitigating fossil fuel emissions in response to climate change imperatives.

Samantha Hepburn does not work for, consult, own shares in or receive funding from any company or organization that would benefit from this article, and has disclosed no relevant affiliations beyond the academic appointment above.