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

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…

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

Two cases currently before state courts and tribunals take a different legal approach. Environmental groups have joined with sympathetic lawyers to bring suits against coal that will subject the coal projects to merits assessment.

In Queensland, a decision of the Land Court is imminent in the case between Friends of the Earth and Xstrata in relation to the Wandoan coal mine.

This case is not simply a challenge to the environment or planning approval for the project. Rather, the environment group is also seeking to prevent the grant of the mining tenure required by Xstrata. They are arguing that the coal mine, which will be Australia’s largest and will principally service the export market, will indirectly and notably contribute to climate impacts that are “irreversible, of a high impact and widespread”.

Under the relevant law, the Friends of the Earth must convince the court that the adverse impacts of the mine are of such a magnitude to justify its rejection. It is a case that has parallels with the long-fought battle against sand mining on Fraser Island, which started in the Mining Warden’s Court of Queensland in the early 1970s and made its way to the High Court.

In Victoria, a group of environmental objectors, most publicly led by Environment Victoria, are party to a current Victorian Civil and Administrative Tribunal case. It concerns the works approval the Environment Protection Authority gave a combined coal- and gas-fired power plant proposed for Victoria’s Latrobe Valley.

The legal question for the tribunal is whether this project, characterised by the proponent as a clean coal alternative to the status quo, is “best practice” to manage greenhouse gas emissions. Does polluting less than the typical coal-fired power station - but far more than generation from gas or renewables - correspond with best practice standards?

The tribunal’s finding will be significant because it will also inform us whether Victoria’s new Climate Change Act, which must be considered in this case, actually stands for something.

Regardless of the outcomes of these cases, court battles between coal companies and environmentalists will continue. Legal alliances are being formed. Landholders, like those in Bacchus Marsh close to Melbourne, have been emboldened by the coal seam gas outrage initiated by farmers throughout New South Wales and Queensland and appear likely to join the fold.

Proposals to halt new or expanded coal developments will be opposed. Existing facilities, like Delta Electricity’s Lithgow plant - the subject of community-initiated court claims over pollution - will be scrutinised. The battle is important because it might just change public sentiment and government opinion about the future of coal in Australia.

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7 Comments sorted by

  1. Paula Chavez

    activist

    As a law student in California over 20 years ago, I looked at practising environmental law, and ended up doing intellectual property law. Now I am studying to earn my practising certificate in Australia (I live in Canberra) which should be completed by June 2012, and I would like to offer myself up to these important causes. I'd would be interested to know which environmental groups in Australia are bringing lawsuits against polluters. I look forward to receiving responses to my enquiry.

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    1. Jane Rawson

      Editor, Energy & Environment at The Conversation

      In reply to Paula Chavez

      Hi Paula, I'd start with the groups mentioned in the article: Friends of the Earth in Brisbane, and Environment Victoria in Melbourne. They should be able to give you more guidance.

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  2. Peter Smith

    (None)

    The Wandoan case is perhaps one of the most important cases for Australia's future. But don't expect many Australians to know or care about it.

    Queensland's export of thermal coal vs. metallurgical coal will soon exceed 50% thus making Queensland primarily a dirty fuel exporter rather than a steel coal exporter, the latter of which still being an important area to reform (i.e. coal-free steel making).

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  3. Will

    logged in via Twitter

    Wouldn't it be wiser to invest money in actual clean energy instead of fuelling the lawyer-industrial complex with NGO and taxpayer money? That coal isn't going to replace itself.

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    1. Paula Chavez

      activist

      In reply to Will

      Will - Farmers are locking out the coal seam gas exploration companies with chain link fence and padlocks. The farmers have few options, but one of their options is not to invest in actual clean energy since they are in the business of farming. That is the problem with environmental issues where the actions of an interested party cause a chain of events that affect otherwise uninterested parties. Who would have thought our culture of driving cars to and from work or turning on our lights at night…

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