Dragging coal through the courts: an alternative emissions-reduction strategy

Environmentalists are getting off the streets and into the courts in an effort to stop coal. Takver

The bill creating the carbon price has passed through Parliament. However, the campaigning efforts of the environmental lobby will not pause. More than ever, the coal industry is in its sights, with court cases against Xstrata in Queensland and HRL in Victoria now underway.

Getting regional Victoria’s Hazelwood power station closed is a potential prize from the cross-party climate deal that gave us the climate price. But it will not realise campaigners' ultimate goal of a carbon-neutral economy.

Environmentalists know that they have achieved all that they can for the moment through the legislature. For decades, politicians' attention has been captured by Australia’s most greenhouse intensive industries. Throughout the carbon debates, environmentalists have not been able to avert that attention.

Recommendations were made for legislative reform that would institute a greenhouse gas trigger for environmental assessments under the Environment Protection and Biodiversity Conservation Act, but these have been ignored or rejected. The Gillard government has been convinced by the yet-to-be proven argument that a market mechanism - the emissions trading scheme - will curtail emissions-intensive industrial developments as effectively as scrutinising, evaluating or simply prohibiting them.

The courts are the next stage for the environmentalists' battle against coal.

Past efforts at halting coal mining activities and power generation activities through the courts have been unsuccessful. Australian courts and tribunals have held that in some circumstances, decision-makers must consider the greenhouse gas emissions from coal-fired power in deciding whether to approve coal mines and power stations.

But these decisions have not stopped projects. They have simply required ministers to explicitly preference the promised economic windfalls from coal mines and power stations over environmental objectives.

Most notably, the Federal Court has twice rejected challenges to New South Wales and Queensland coal mines. The court was not satisfied that there is a sufficient link between localised burning of coal and climate change to prove that carbon emissions could have “significant impacts” on the Australian environment, particularly on ecosystems like wetlands and reefs, which are highly vulnerable to sea level height and temperature change.

Friends of the Earth’s case against Xstrata is taking a novel approach. Xstrata