Coal mine climate change challenge canned: The Federal Court of Australia has dismissed applications for judicial review against two decisions of the Minister for the Environment and Water to reaffirm decisions made by the Minister's delegate to approve coal mine expansion operations for the reason that the Minister acted within their statutory power

In brief

The case of Environment Council of Central Queensland Inc v Minister for the Environment and Water (No 2) [2023] FCA 1208 concerned two applications for judicial review to the Federal Court of Australia (Court) by the Environmental Council of Central Queensland (Applicant) with respect to decisions of the Minister for the Environment and Water (Minister) to reaffirm the decisions of the Minister's delegate to approve applications for the expansion of two coal mine operations in New South Wales at Mount Pleasant and Narrabri (Proposed Actions).

The Court noted that the proceedings were not concerned with the merits of the Minister's decision, but rather whether the Minister erred in the application of the Minister's statutory power when making the decisions (at [5]). The Court did not find jurisdictional error and dismissed each application.

Background

In the original decisions, the Minister's delegate determined the Proposed Actions to be a "controlled action" under the Environmental Protection and Biodiversity Conservation Act 1999 (Cth) (EPBC Act) (at [1]). Section 67 of the EPBC Act relevantly states as follows:

"An action that a person proposes to take is a controlled action if the taking of the action by the person without approval under Part 9 for the purposes of a provision of Part 3 would be (or would, but for section 25AA or 28AB, be) prohibited by the provision. The provision is a controlling provision for the action."

The Applicant made applications to the Minister for reconsideration, revocation, and substitution of the delegate's decision under section 78A of the EPBC Act on the basis that "substantial new information" had become available about the impacts of the Proposed Actions on matters protected in Part 3 of the EPBC Act, being Matters of National Environmental Significance (MNES) (at [2]).

The Applicant provided to the Minister documents in support of the applications which were in respect of greenhouse gas emissions as a primary contributor to climate change (at [2]). After considering the documents provided, the Minister reaffirmed the delegate's original decisions. The Applicant then sought judicial review of the Minister's decisions under section 39B of the Judiciary Act 1903 (Cth) on the basis of jurisdictional error on behalf of the Minister (at [19]).

Minister reaffirmed the delegate's decisions

When reconsidering the delegate's decisions, the Minister did not dispute the documents provided by the Applicant that coal mine operations produce greenhouse gas emissions (GHG emissions), and that MNES have been or will be affected by climate change (at [3]).

The Minister considered, among other things, the "indirect impact requirement" contained within section 527E of the EPBC Act to determine whether the Proposed Actions would be a "substantial cause" of climate change.

The Minister reached two alternate conclusions, being as follows (Minister's Conclusion) (at [10]):

1. the Proposed Actions would not cause any net increase in GHG emissions; and

2. even if a net increase was demonstrated, any GHG emissions contribution would be "very small".

When the Applicant presented their review grounds, they structured it to address these conclusions separately and respectively as (at [61]):

1. The Minister's net increase conclusion.

2. The Minister's relative contribution conclusion.

The Minister's reasons for the decisions was summarised by the Court as follows (see [69]):

• It is anticipated that the mined coal would be transported to countries to be combusted where they have emissions targets and climate change adaptation regimes in place.

• There are in the export countries various GHG emissions reduction policies that would need to be adhered to.

• A variety of factors make it difficult to determine the net increase in GHG.

• The proposed buyers of coal would most likely source an "equivalent amount of coal" elsewhere, and therefore the same amount of GHG emissions would be produced irrespective of the origin of the coal.

The Minister stated in their reasons that they had taken into account the precautionary principle as required under section 391 of the EPBC Act (at [35]). This principle requires that the absence of full scientific certainty ought not to be used as a reason to postpone implementing measures to protect the environment.

The Minister was not satisfied the new information was about the impacts of the Proposed Actions on MNES and reaffirmed the original decisions (at [10]).

Grounds for review

The Applicant submitted ten grounds for review (Review Grounds) which were split into two to address each of the Minister's Conclusions alleging error, irrationality and illogic by the Minister. Grounds 1 to 7 addressed conclusion 1 being the Minister's "net increase conclusion", and grounds 8 to 10 addressed conclusion 2 being the Minister's "relative contribution conclusion" (at [61]).

The Review Grounds were as follows:

1. The Minister misdirected herself in that she turned her mind to future universes in which the Proposed Actions will not be taken, or not all of the Proposed Actions will be taken for reasons, for example, that the countries receiving the coal will not burn all of the coal (at [62]).

2. The Minister failed to engage in counterfactual reasoning.

3. The Minister relied on future potential actions of other countries implementing climate change regimes.

4. The Minister did not correctly apply the precautionary principle (at [101]).

5. The Minister misunderstood the precautionary principle (at [102]).

6. The Minister was irrational in her decision making (at [118]).

7. The Minister misunderstood what is meant by "substantial", equating it to "large numerical significance" (at [150]).

8. Repeat of ground [4] above in the context of the Relative Contribution Condition (at [157]).

9. Repeat of ground [5] above in the context of the Relative Contribution Condition (at [157]).

10. Repeat of ground [6] above in the context of the Relative Contribution Condition (at [158]).

The Court dismissed each of the Review Grounds finding that the Minister was rational and reasonable and had identified multiple factors in her reasoning to support the decisions. Further, the Applicant had misdirected itself in its interpretation of the ways the Minister was required to consider the impacts of the Proposed Actions (at [78]).

The Court was satisfied that the Minister "proceeded on material that was before her, disclosed her reason for doing so and there is nothing in that which bespeaks of legal irrationality" (at [161]).

The Court found no error on behalf of the Minister under current laws, but recognised that the Applicant's arguments "…raise matters for Parliament to consider whether the Minister's powers must be exercised to explicitly consider the anthropogenic effects of climate change in the manner the applicant submits they must" (at [7]).

Conclusion

Both applications for review were dismissed with costs.