Don’t like a court judgment? Just change the law, why don’t you?

24 October 2019 · Carmel Rickard

Everyone who attended the Jifa training course on environmental law earlier this year will remember Judge Brian Preston. Chief judge of the New South Wales land and environment court, he had remarkable insights into the subject of environmental law and the role of the courts in making environmental rights real. But now the NSW government is taking on a major decision he gave earlier this year in which he cited climate change, among other issues, for turning down a planned coal mine. In reaction, the NSW government has decided to introduce a new law saying that greenhouse gas emissions can’t be considered by the courts in deciding whether to approve mines.

Though Judge Brian Preston is the author of many other judgments, the best known is a decision he gave in February 2019. It involved a mining company that wanted to extract 21m tons of coal over 16 years in a picturesque country valley. But the minister for planning refused development consent. And that is how the case found itself before Judge Preston, via an appeal by the mining company

It’s a fascinating, well-ordered decision involving consideration of a range of important questions. One section of the judgment looks at the mine’s likely impact on climate change, greenhouse gases, Australia’s carbon budget and the demands of the Paris Agreement. Just because a natural resource like coal existed under the ground did not mean it had to be dug up, he said.

His most quoted comments were these: the mine would be in the wrong place at the wrong time. ‘Wrong place because an open cut coal mine in this scenic and cultural landscape … will cause significant planning, amenity, visual and social impacts. Wrong time because the greenhouse gas (GHG) emissions of the coal mine and its coal product will increase global total concentrations of GHGs at a time when what is urgently needed, in order to meet generally agreed climate targets is a rapid and deep decrease in GHG emissions.’

At the time the company expressed its concern about the court’s reasoning. But now the NSW government has gone a step further. Reacting to the judge’s decision, and to tamp down concerns of big coal companies, seen as essential to the local economy, they are in the process of introducing a new law to curb such decisions in future.

The NSW deputy premier and resources minister has announced that the government will very shortly introduce new legislation to parliament. John Barilaro is quoted in The Australian Business Review and other media as saying that the planned new laws would put an end to ‘international greenhouse gas emissions being used as a reason to prevent mines being approved’.

The new laws would prevent ‘overseas emissions’ from export coal being considered in local mining decisions, said the Sydney Morning Herald.

Barilaro made clear that the planned legislation was a direct result of the Preston decision that had been the first time an Australian court rejected approval for a coal mine ‘due to its impact on global warming.’

He added, ‘These changes will help restore NSW law and policy to the situation that existed prior to the (Preston decision) and will provide the mining sector with great certainty.’

But there has been strong reaction to the proposed new laws. The Newcastle Herald reports that while the NSW government is trying to stop planning authorities from considering overseas greenhouse gas emissions when examining local mining project, experts on the other side of the argument say this ‘will worsen the impacts of climate change’.

An open letter, signed by more than 40 scientists, climate experts, economists and academics, strongly urges the NSW government ‘not to cave in to pressure from coal lobbyists to overrule NSW laws that require the full climate impact to be considered in the assessment of new coal mines’. They further urged the government to ‘defend’ its own Independent Planning Commission ‘against unwarranted and misleading attacks’.

Full text of the letter of protest

Read the original Preston judgment at the centre of controversy

Carmel Rickard

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