Insights

In brief

The case of Australian Conservation Foundation Incorporated v Minister for the Environment and Energy [2017] FCAFC 134 concerned an appeal to the Federal Court of Australia challenging  the lower court's decision to dismiss an application for judicial review of the Minister for the Environment’s decision to approve the Carmichael Coal Mine in Central Queensland.
 
The Appellant appealed on the basis that the lower court had incorrectly interpreted that the Minister, in the Minister's statement of reasons, was satisfied that appropriate consideration had been given to various statutory tests under the Environmental Protection and Biodiversity Conservation Act 1999 (EPBC Act) in particular that an assessment of the physical impacts of climate change on the Great Barrier Reef had been completed and was acceptable. 
 
The Court dismissed the appeal on the basis that neither the lower court nor the Minister had fallen into legal error.

The Minister approved the Carmichael Coal Mine 

The Minister’s initial 2014 decision to approve the Carmichael Coal Mine was set aside by consent after the proponent and environmental groups provided the Minister with new information relating to the mine’s environmental impacts. The Minister approved the mine again in 2015 based on the following reasons:
  • the proposal would not have an unacceptable impact on World Heritage values or be  inconsistent with Australia’s obligations under the World Heritage Convention or plans for World Heritage managed property; 
  • the proposal would not have an unacceptable impact on the National Heritage values of the reef or any plan prepared for the management of a National Heritage place;
  • scope one and two emissions, being those generated by the mine or the energy required to carry out the proposal, would be dealt with under existing and future arrangements; 
  • scope three emissions, being those generated by overseas markets burning coal from the mine, were subject to numerous variables and would be mitigated by international multilateral environmental agreements and various control frameworks.

The Appellant applied to the Court for judicial review of the Minister’s decision 

The Appellant’s application for judicial review relied on three grounds and sought orders to quash the Minister’s decision and an injunction to restrain the Minister from taking any further steps to give effect to the decision. 
 
Ground one alleged that the Minister made an error of law by failing to adhere to the statutory command under section 137 of the EBPC Act to not act inconsistently with Australia's obligations under the World Heritage Convention
 
 Ground two alleged that the Minister made an error of law in the following respects:
  • Characterising emissions from rail and shipping transport and combustion of the coal product overseas as an indirect consequence of the proposed coal mine, without applying the test under section 527E of the EBPC Act to determine if these factors represented a relevant impact.
  • Failing to comply with the requirement in section 136(2)(e) of the EBPC Act by giving inappropriate consideration to information about the likely or potential impacts of overseas emissions on protected matters.
Ground three alleged that the Minister made an error of law by finding that it was "difficult to identify the necessary relationship between the taking of the action and any possible impacts on relevant matters of national environmental significance" without first considering or applying the precautionary principle required under section 136(2)(a) and section 391 of the EPBC Act.

The Court rejected the Appellant's application

The lower court concluded that the Appellant’s core proposition for judicial review was that the Minister had failed to properly consider new information regarding whether greenhouse gas emissions caused by the combustion of the mine's coal overseas were a relevant "event or circumstance" within the definition of "impact" under section 527E of the EPBC Act.
 
The lower court referred to the explanatory notes to the EPBC Act to identify that the purpose of section 527E was to clarify the extent to which indirect impacts must be considered and dealt with under the EPBC Act. The lower court also referred to the decision in Tarkine National Coalition Inc v Minister for the Environment (2015) 233 FCR 254 to conclude that an event or circumstance can only amount to an "impact" where it is either a direct consequence of the development or an indirect consequence substantially caused by the proponent.
 
The lower court rejected the Appellant's application for judicial review after finding that the Minister's statement of reasons demonstrated that the Minister had adopted the wording of section 527E including the phrase "substantial cause" to find that overseas emissions would have no relevant impact on the reef. The Minister found that the range of variables associated with overseas emissions was such that calculating their net contribution to global temperatures amounted to speculation.

The Appellant appealed the decision of the lower court

The grounds of appeal alleged that the lower court: 
  • erred in interpreting the Minister’s statement of reasons to include a determination as to whether or not the physical effects of climate change on the reef were an "impact" within the meaning of section 527E of the EPBC Act; or
  • alternatively, if on a proper interpretation of the statement of reasons the Minister did address whether or not the physical impacts of climate change on the reef were an “impact”, that the lower court erred by failing to find that the Minister misdirected himself as to the correct question under sections 82(1), 136(2)(e) and 527E.
The Appellant contended that whilst the Minister was unable to quantify the "actual" quantity of greenhouse gas emissions generated by the transport and combustion of coal the Minister was able to calculate the "possible" quantity. The Appellant argued that, as a consequence, it was not open to the Minister to make the determination that he did being that the effect of climate change, caused by greenhouse gas emissions, on the reef was not an impact.

The Court found that the Appellant's claim was without merit

The Court determined that section 130 of the EPBC Act required the Minister to allow or refuse a proposed action on the basis that it will have, or is likely to have, an impact on a protected matter. 
 
The Court found that whilst the Minister's statement of reasons was short it was clearly based on extensive evidence and subject to the Queensland Bilateral Agreement. The Court also recognised that the Minister was satisfied the national and international arrangements and frameworks were in place to address the scope one, two and three emissions.
 
The Court ultimately found that the lower court had correctly construed the Minister's decision for approving the mine. The Court saw no justification to support the Appellant's claim that the Minister did not take into account the possible impacts of overseas emissions on the level of greenhouse gases and the consequences thereof on the reef.
 
The Court found that the Appellant's reliance on sections 82, 136(2)(e) and 527E of the EPBC Act had lead it into error. The Court affirmed that while the Minister was required to consider overseas emissions this did not necessarily require the Minister to conduct this assessment within the boundaries of sections 82 or 527E of the EPBC Act.  

This article has been published by Colin Biggers & Paisley for information and education purposes only and is a general summary of the topic(s) presented. This article is not specific legal advice. Please seek your own legal advice for any questions you may have. All information contained in this article is subject to change. Colin Biggers & Paisley cannot be held responsible for any liability whatsoever, or for any loss howsoever arising from any reliance upon the contents of this article.​

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