Antinuclear

Australian news, and some related international items

Court judgment a precedent for climate to weigh more than coal business in legal cases?

Landmark Rocky Hill ruling could pave the way for more courts to choose climate over coal, ABC, The Conversation By Justine Bell-James, 12 Feb 19, On Friday, Chief Judge Brian Preston of the New South Wales Land and Environment Court handed down a landmark judgementconfirming a decision to refuse a new open-cut coal mine near Gloucester in the Hunter Valley.

The proposed Rocky Hill mine’s contribution to climate change was one of the key reasons cited for refusing the application.

The decision has prompted celebration among environmentalists, for whom climate-based litigation has long been an uphill battle.

Defeating a mining proposal on climate grounds involves clearing several high hurdles.

Generally speaking, the court must be convinced not only that the proposed mine would contribute to climate change, but also that this issue is relevant under the applicable law.

To do this, a litigant needs to convince a court of a few key things, which include that:

  • the proponent is responsible for the ultimate burning of the coal, even if it is burned by a third party, and
  • this will result in increased greenhouse emissions, which in turn contributes to climate change.

In his judgement, Judge Preston took a broad view and readily connected these causal dots, ruling that:

The project’s cumulative greenhouse gas emissions will contribute to the global total of GHG concentrations in the atmosphere. The global total of GHG concentrations will affect the climate system and cause climate change impacts. The project’s cumulative GHG emissions are therefore likely to contribute to the future changes to the climate system and the impacts of climate change.

Other courts (such as in Queensland, where the proposed Adani coalmine has successfully cleared various legal hurdles) have tended to take a narrower approach to statutory interpretation, with climate change just one of numerous relevant factors under consideration.

In contrast, Judge Preston found climate change to be one of the more important factors to consider under NSW legislation.

To rule against a coalmine on climate grounds, the court also needs to resist the “market substitution” argument — the suggestion that if the proponent does not mine and sell coal, someone else will.

This argument has become a common “defence” in climate litigation, and indeed was advanced by Gloucester Resources in the Rocky Hill case.

Judge Preston rejected the argument, describing it as “flawed”. He noted that there is no certainty that overseas mines will substitute for the Rocky Hill coalmine.

Given increasing global momentum to tackle climate change, he noted that other countries may well follow this lead in rejecting future coalmine proposals.

He also stated that:

An environmental impact does not become acceptable because a hypothetical and uncertain alternative development might also cause the same unacceptable environmental impact……..

This decision potentially opens up a new chapter in Australia’s climate litigation history.

Judge Preston’s ruling nimbly vaults over hurdles that have confounded Australian courts in the past — most notably, the application of the market substitution defence.

It is hard to predict whether his decision will indeed have wider ramifications.

Certainly the tide is turning internationally — coal use is declining, many nations have set ambitious climate goals under the Paris Agreement, and high-level overseas courts are making bold decisions in climate cases.

As Judge Preston concluded:

An open-cut coal mine in this part of the Gloucester valley would be in the wrong place at the wrong time … 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.

Indeed, it is high time for a progressive approach to climate cases too.

Hopefully this landmark judgement will signal the turning of the tides in Australian courts as well.

Justine Bell-James is a senior lecturer at The University of Queensland. https://www.abc.net.au/news/2019-02-12/rocky-hill-ruling-more-courts-choose-climate-over-coal/10802930

Advertisements

February 14, 2019 - Posted by | climate change - global warming, legal, New South Wales

No comments yet.

Leave a Reply

Fill in your details below or click an icon to log in:

WordPress.com Logo

You are commenting using your WordPress.com account. Log Out /  Change )

Google+ photo

You are commenting using your Google+ account. Log Out /  Change )

Twitter picture

You are commenting using your Twitter account. Log Out /  Change )

Facebook photo

You are commenting using your Facebook account. Log Out /  Change )

Connecting to %s

%d bloggers like this: