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Legal Constraints on Australian Coal Mining: The Role of the Paris Agreement

In: Climate Law
Author:
Ella Vines PhD Candidate, Melbourne Law School, University of Melbourne, Melbourne, Vic, Australia

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Abstract

This commentary assesses legal constraints on coal-mining in Australia in the context of developments in the climate regime. There is a growing global consensus that unabated coal-power must be phased down, yet executive branches of government at the national and subnational levels in Australia continue to approve new coal mines. This commentary looks to litigation that has challenged the approval of new coal mines on climate change grounds. I analyse how the Paris Agreement is being used in these claims. The Agreement provides background and context to the climate impacts of coal use in several cases. However, in a few cases, decisions to refuse coal mines are underpinned by substantive engagement with the Agreement’s global warming limitation goals. These refusals are significant in an Australian legal context that is otherwise weighted in favour of coal mining.

1 Introduction

While the climate regime addresses the use of fossil fuels without distinction,1 it is possible to focus on legal developments surrounding the combustion of coal – a major source of co2 emissions.2 Scientific, economic, and policy developments have highlighted the need for global action to phase out coal. In 2021, in a speech to the Powering Past Coal Alliance Summit, the UN Secretary-General called the phasing out of coal from the electricity sector ‘the single most important step to get in line with the 1.5 degree goal of the Paris Agreement’.3 In the same year, the Glasgow Climate Pact included as an objective the ‘phase-down’ of unabated coal power;4 and oecd members agreed to end export-credit support for unabated coal-fired power plants.5 Further, forty-six national governments, twenty-six non-state actors, and five subnational governments signed the Global Coal to Clean Power Transition Statement, pledging to ‘accelerate a transition away from unabated coal power generation’.6 This included the Australian Capital Territory, a subnational jurisdiction which has been fully powered by renewable energy since 2020.7

Australia is the largest exporter of coal in the world in terms of economic value, and a significant consumer of coal domestically.8 Reducing Australian coal mining would not necessarily result in a reduction in global co2 emissions from coal combustion, since coal could be supplied from other sources. ‘Market substitution’ arguments have been made in climate change litigation and have been debated in the literature.9 Instead of adding to that literature, here I will examine the influence of the Paris Agreement on Australian climate litigation brought in opposition to coal mining. Such litigation has been brought under Australia’s primary environmental statute, the Environment Protection and Biodiversity Conservation Act 1999 (Cth) (epbc Act),10 as well as state and territory legislation.11

2 Reducing Emissions from Coal Use

In studying the contributions of fossil fuels to global warming, climate scientists and economists have made suggestions about the reduction of emissions from coal use. For example, in 2018, the ipcc noted that a key characteristic of emission-reduction pathways consistent with global warming of 1.5ºC is a decrease in coal use to a 1–7 per cent share of primary energy, with carbon capture and storage being deployed in relation to a large portion of it.12 There have also been calls for more restraints on the exploitation of global coal reserves, as compared to oil and gas. A proposed fossil-fuel non-proliferation treaty has included suggestions for an international agreement on eliminating the use of coal.13 A study has argued that a third of oil reserves, half of gas reserves, and over 80 per cent of coal reserves must be left unused between 2010 and 2050 to have a 50 per cent chance of staying within 2°C.14 This has been interpreted by the Climate Council, an Australian ngo, to mean that 95 per cent of Australia’s coal reserves must be left untouched.15 In 2022, the ipcc noted that the cancellation of new unabated coal installations is a policy option that contributes to aligning co2 emissions from the power sector with a trajectory consistent with 2ºC.16 The International Energy Agency has considered the reduction of coal mining in policy options to reach the Paris Agreement’s goal of net-zero co2 emissions by 2050, including the option of no new coal mines or mine extensions beyond projects already committed to as of 2021.17

The Glasgow Climate Pact references coal,18 calling upon the parties to ‘accelerat[e] efforts towards the phasedown of unabated coal power and phase-out of inefficient fuel subsidies’.19 This is the first time a cop decision has referred to limiting a particular fossil fuel.20 The near-universal membership of the unfccc makes the Glasgow Climate Pact an instrument with the broadest acceptance.21 While cop decisions do not generally give rise to binding obligations, they can update the interpretation of treaty provisions.22 The Pact may indicate a growing consensus under the Paris Agreement that coal power is untenable without abatement. This depends on the meaning of ‘phasedown’ in relation to coal power. An earlier draft referred to a coal ‘phase-out’.23 Criticism of the final choice, including from small island states and Switzerland, suggests that it is a lesser obligation.24

The developments described above show that policymakers have given specific attention to coal, including under the auspices of the Paris Agreement. So far, such attention has not led to any concrete effect on coal production.25 Under current state policies, including ndcs, coal is forecast to continue to contribute approximately 41 per cent of co2 emissions from fuel combustion in 2030.26 Global coal consumption in the first half of 2022 decreased less than 0.5 per cent compared with the first half of 2021.27 Moreover, no progress was made on coal at cop 27 in 2022.28

3 The Regulation of Coal Mining under Australian Law

The Commonwealth and the states and territories of Australia share responsibility in relation to the regulation of the environment.29 This is despite the fact that ownership of sub-strata resources vests in the states and territories.30 Both levels of government therefore share responsibility in relation to regulating the environmental impacts of coal projects.31 Pursuant to the residual powers of states (under which term I also include territories) relating to land and natural resource management, state legislation governs the granting of coal-mining leases.32 Environmental authority for coal projects needs approval under both Commonwealth and state environmental legislation (which I will collectively refer to as ‘Australia’s environmental laws’).33

One way in which Australia’s environmental laws aim to protect the natural environment is by achieving ecologically sustainable use of natural resources.34 However, motivated by Australia’s historical and continued reliance on coal to power economic prosperity,35 Australia’s environmental laws have been overwhelmingly facilitative of coal projects. To date, only two coal project applications made under the epbc Act have been rejected since the commencement of the Act in July 2000.36

The epbc Act requires actions that will have a significant impact on ‘matters of national environmental significance’ (mnes) to be approved by the Commonwealth Minister for the Environment prior to commencement.37 There are nine mnes ‘triggers’ under the epbc Act, such as actions that may affect world heritage properties,38 national heritage places,39 or water resources.40 If it is determined that an action will not have a significant impact on an mnes, it will not be a ‘controlled action’, meaning that it does not require approval under the epbc Act.41

Environmental impacts from coal projects are considered under the various mnes, for example impacts on listed threatened species or water resources. The mnes do not explicitly address a significant impact of coal projects; greenhouse gas emissions. Climate change is treated as incidental to the nine mnes. This has been a matter of some debate since the inception of the Act.42 A 2020 statutory review of the epbc Act did not recommend that a climate change trigger be included,43 instead recommending that national environmental standards be implemented that would require proposals coming under the epbc Act to disclose the ‘full emissions’ of proposed developments and to ‘explicitly consider’ the effectiveness of actions that could be taken to avoid, mitigate, or offset impacts of proposed developments on mnes under climate change scenarios.44 The reason given was that Commonwealth governments have preferred to legislate separately on climate change mitigation and adaptation.45

Australian legislation on these matters does not include a prohibition on coal extraction or consumption. The Climate Change Act 2022 (Cth) (cca)46 enshrines Australia’s emission-reduction target provided as part of its ndc under the Paris Agreement (43 per cent below 2005 levels by 2030).47 A Safeguard Mechanism (Crediting) Amendment Act 202348 requires approximately 215 large industrial facilities to gradually reduce their co2 emissions.49 These facilities collectively produce around 28 per cent of Australia’s emissions.50 The cca does not provide for the consideration of Australia’s emission-reduction target in federal environmental impact assessment or approval of coal projects. The Commonwealth Minister for the Environment and Water, who is responsible for granting environmental authority for coal projects, is thus not required to consider the emission-reduction target. Instead, the cca requires a different minister, the Commonwealth Minister for Climate Change and Energy, to consider the impact of scope 1 emissions from high-emitting facilities in setting measures to meet Australia’s emission-reduction target.51 This is significant in the absence of a climate change trigger under the epbc Act. Nevertheless, Australia’s climate change legislation does not restrict coal-mine creation or expansion. Indeed, since May 2022, the Commonwealth government has rejected one coal mine and declared two proposals to have lapsed,52 but it has also approved three coal mines in Queensland53 and rejected a request to reconsider two already-approved mines.54

4 The Influence of the Paris Agreement on Australian Climate Change Litigation Brought Against Coal Projects

Australian climate change litigation against coal projects that raise objections based on the Paris Agreement have had mixed results. Few litigated coal projects have been permanently halted,55 although litigation has delayed the approval process.56 Given that Australia’s environmental laws do not regulate emissions from coal, litigants have relied on arguments about the non-climatic environmental impacts of coal.57 The courts have drawn on the climate treaties mostly to highlight the relevance of climate change and its impacts.58 The influence of the Paris Agreement is nonetheless discernible in these cases. There is some evidence of engagement with the legal implications of the Paris Agreement’s global warming limitation goals. Some decisions have considered what it means to make a determination that is consistent with those goals.

A key case is Gloucester Resources v. Minister for Planning,59 decided under New South Wales environmental legislation. Chief Judge Preston of the nsw Land and Environment Court noted that the Paris Agreement and Australia’s ndc did not prescribe the mechanisms by which net-zero emissions by 2050 is to be achieved.60 Nevertheless, the Australian government’s adoption of the Paris Agreement and the nsw government’s endorsement of it via its own climate change policy61 contributed to a legislative context which justified upholding the government’s decision to refuse the mine.62 The Chief Judge said:

the exploitation and burning of a new fossil fuel reserve, which will increase ghg emissions, cannot assist in achieving the rapid and deep reductions in ghg emissions that are necessary in order to achieve ‘a balance between anthropogenic emissions by sources and removals by sinks of greenhouse gases in the second half of this century’ (Article 4(1) of the Paris Agreement) or the long term temperature goal of limiting the increase in global average temperature to between 1.5ºC and 2ºC above pre-industrial levels (Article 2 of the Paris Agreement).63

According to the Gloucester decision, in the context of the Paris Agreement, there is limited scope for the approval of a new fossil fuel development.64 In September 2019, the nsw Independent Planning Commission followed the reasoning in Gloucester and refused the Kepco Bylong coal mine.65 The mining company unsuccessfully sought judicial review, and was also unsuccessful in the subsequent appeal.66 In the appeal, the Land and Environment Court determined that the nsw government’s climate change policy, which endorses the Paris Agreement, was one of the policies that the Planning Commission was permitted to consider in assessing the impact of the greenhouse gas emissions of the proposed mine. The Court said: ‘The fact that a policy may be “aspirational”, or set an overarching policy framework, does not render it incapable of being “applied” to the evaluative task that is involved in an assessment of the greenhouse gas emissions of the development.’67

In contrast to Gloucester and kepco, there are instances where the executive’s delegate has granted development consent to a coal project. For example, the Planning Commission granted consent for an extension of the Narrabri coal mine in July 2023, notwithstanding that it found that the mining and use of coal was a major contributor to climate change.68 The Planning Commission stated:

The Commission acknowledges that while the Project’s Scope 3 emissions would contribute to anthropogenic climate change they are more appropriately regulated and accounted for through broader national policies and international agreement (such as the Paris Agreement). The Commission notes that the ghg emissions associated with burning coal to produce energy are accounted for at the international powerplants where that combustion takes place.69

Judicial review was unsuccessful.70

Scope 3 greenhouse gas emissions were considered by the Planning Commission in both kepco and Narrabri. However, the economic, social, and non-climatic environmental impacts of the projects differed. When these were balanced against the emissions associated with the projects, different conclusions followed. The refusals in Gloucester and kepco, partly relying on greenhouse gas emissions, were bolstered by findings on negative social and non-climatic environmental impacts and overstated economic and public benefits.71 In Narrabri, the Planning Commission considered that the project would make a positive economic contribution and that its social benefits outweighed the costs.72 In sum, emissions alone are insufficient to justify the refusal of a coal project. Nevertheless, Gloucester, kepco, and Narrabri are notable for having given weight to greenhouse gas emissions, which is a significant legal development in Australian climate change litigation brought against coal mining.

One other Australian case is noteworthy. In Waratah Coal Pty Ltd v. Youth Verdict Ltd & Ors (No. 6), President Kingham of the Queensland Land Court considered objections to a coal-mining lease.73 The judge recommended that the mine be refused, and this recommendation was followed by the Queensland executive.74 Because both state-level and Commonwealth approvals are required for a mine to proceed, an earlier approval by the Commonwealth government under the epbc Act was of no effect.

President Kingham found the proposed mine would risk unacceptable climate change impacts on Queenslanders, which were not outweighed by the mine’s economic and social benefits.75 The Paris Agreement served as both context and substance for the court’s determinations in relation to climate change impacts. The co2 emissions from coal combustion, the existence of the Paris Agreement’s global warming limitation goals, and the fact that current efforts are insufficient to achieve those goals were all undisputed in the case.76 It was contested, however, whether the emissions from the combustion of the coal from the proposed development could be considered by the court in reaching a recommendation.77 President Kingham found that the emissions could be considered, relying on the principles of ecologically sustainable development and public interest.78 The legal implications of the Paris Agreement’s temperature goals were engaged by the judge, who acknowledged that her decision did not guarantee a particular temperature outcome.79 Nevertheless, it was relevant to the decision that the projected co2 emissions from the coal was ‘a meaningful contribution to the remaining carbon budget to meet the long-term temperature goal of the Paris Agreement’.80 Making the coal available for combustion could limit the options for achieving the Agreement’s Article 2 goals.81 The following evidence, provided by climate scientists in the proceedings, was relied on by the court:

A project can be consistent and ‘meet’ the requirements of Australia’s ndcs and the obligations of the Paris Agreement while being contrary to the intent of both. From the perspective of climate change and reduction of global impacts, it is the intent of the Paris Agreement that matters.82

Waratah demonstrates that the Paris Agreement is being used in innovative ways to oppose coal projects in Australia through litigation.83

Judicial developments at the subnational level also impact on statutory duties regarding coal. In considering the Victorian Environment Protection Authority’s (epa) decision to impose new licence conditions on coal-fired power-plant operators, the Supreme Court of Victoria held that Victoria’s climate change legislation rendered it mandatory for the epa to consider the contribution of greenhouse gas emissions and climate change impacts associated with imposing the licence conditions.84 Though the outcome did not affect the coal-fired power stations in this case, the reasoning provides scope for future decisions to consider Victoria’s emission-reduction targets. Such decisions also exist in other Australian jurisdictions. The nsw Land and Environment Court issued an order compelling the nsw epa to perform its public duty to ensure environment protection from climate change, which led to the development of a climate change policy and plan by the epa.85 They provide that the epa will establish and enforce emission-reduction targets that will gradually be introduced to the sectors regulated by the epa, one of which is the coal sector.86

5 Conclusion

This commentary has assessed how the law in Australia addresses greenhouse gas emissions from coal, in the context of a global recognition of the need to phase down unabated coal power. Though the Paris Agreement and the Glasgow Climate Pact signal the unsustainability of the continuation of unabated coal power, Australian executive branches of government continue to approve new and expanded coal mines. I have analysed the role of the Australian judiciary in upholding or recommending reversal of executive decisions in relation to new or expanded coal mines. In Gloucester and kepco, courts upheld executive decisions to refuse coal mines. In Waratah, a judge’s recommendation led to the reversal of an executive decision to approve a mine. These decisions were bolstered by conclusions in relation to other negative social and environmental impacts and overstated economic and public benefits. The approval given in the Narrabri case serves as an example that climate change impacts alone are insufficient to refuse a coal mine. Nevertheless, the fact that greenhouse gas emissions were relevant at all to the litigation analysed in this article is a significant legal development in Australia. Arguments founded in the Paris Agreement contributed to findings about the exacerbation of climate change from emissions from coal. The Paris Agreement provided background and context to the impacts on climate change of coal projects, and there is also evidence in these cases of substantive engagement with the legal implications of the Paris Agreement’s global warming limitation goals. Though phasing down coal requires much more than the refusal of three coal mines, these refusals are significant in an Australian legal context that is otherwise weighted toward the continuation of coal mining.

Acknowledgments

I am grateful to participants at the Climate Regime and Public International Law PhD/Early Career Researcher Workshop, held at the Lauterpacht Centre for International Law in December 2022, for comments and discussion of a paper on which this commentary is based. I am particularly grateful to Christina Voigt, Margaret Young, and Markus Gehring for their comments.

1

See, e.g., unfccc, Article 4(10).

2

iea, Key World Energy Statistics 2021 (2021), 54 (noting that in 2019 coal contributed 44 per cent of these global emissions annually). co2 emissions from fuel combustion are based on the iea World Energy balances and the 2006 ipcc Guidelines for national greenhouse gas inventories and exclude emissions from non-energy use.

3

See UN Secretary-General’s video message to Powering Past Coal Alliance Summit, 2 March 2021: <www.un.org/sg/en/content/sg/statement/2021-03-02/secretary-generals-video-message-powering-past-coal-alliance-summit>.

4

Discussed further in Section 2.

5

oecd, ‘Agreement reached at oecd to end export credit support for unabated coal-fired power plants’, 22 October 2021, <www.oecd.org/newsroom/agreement-reached-at-oecd-to-end-export-credit-support-for-unabated-coal-fired-power-plants.htm>.

6

‘Global Coal to Clean Power Transition Statement’, UN Climate Change Conference (4 November 2021), <https://ukcop26.org/global-coal-to-clean-power-transition-statement/>.

7

Climate Change and Greenhouse Gas Reduction (Renewable Electricity Target) Amendment Act 2019 (act), Section 7(1).

8

iea, Coal 2019, Analysis and Forecasts to 2023 (2019), 16, table 1.2; 45–6.

9

See, e.g., Guy Dwyer, ‘“Market Substitution” in the Context of Climate Litigation’, 12(1) Climate Law 1 (2022); Justine Bell-James and Briana Collins, ‘“If We Don’t Mine Coal, Someone Else Will”: Debunking the “Market Substitution Assumption” in Queensland Climate Change Litigation’, 37 Environmental and Planning Law Journal 167 (2020).

10

Environment Protection and Biodiversity Conservation Act 1999 (Cth) (hereinafter epbc Act).

11

See e.g., Environmental Protection Act 1994 (Qld); Environmental Planning and Assessment Act 1979 (nsw).

12

J. Rogelj, et al., ‘Mitigation Pathways Compatible with 1.5°C in the Context of Sustainable Development’, in ipcc, Global Warming of 1.5°C: An ipcc Special Report (Cambridge, UK: Cambridge University Press, 2018), 96–7.

13

See e.g., Anthony Burke et al., ‘Planet Politics: A Manifesto from the end of ir’, 44(3) Millennium: Journal of International Studies, 499 (2016); Anthony Burke and Stefanie Fishel, ‘A Coal Elimination Treaty 2030: Fast Tracking Climate Change Mitigation, Global Health and Security’, 3 Earth System Governance 100046 (2020); Peter Newell and Andrew Simms, ‘Towards a Fossil Fuel Non-Proliferation Treaty’, 20(8) Climate Policy 1043 (2020).

14

Christophe McGlade and Paul Ekins, ‘The Geographical Distribution of Fossil Fuels Unused When Limiting Global Warming to 2°C’, 517(7533) Nature 187 (2015), 187. McGlade and Ekins do not provide a calculation for meeting the 1.5°C temperature goal.

15

Andrew Stock, Greg Bourne, and Louis Brailsford, Climate Council of Australia, End of the Line: Coal in Australia (24 July 2018), 6.

16

ipcc, ‘Summary for Policymakers’, in Climate Change 2022: Mitigation of Climate Change: Contribution of Working Group iii to the Sixth Assessment Report of the Intergovernmental Panel on Climate Change (Cambridge, UK: Cambridge University Press, 2022), para. B.7.2.

17

iea, Net Zero by 2050 A Roadmap for the Global Energy Sector (May 2021), 21.

18

unfccc, Decision 1/cp.26, Glasgow Climate Pact, fccc/cp/2021/12/Add.1 (2021).

19

Ibid., para. 36.

20

Joanna Depledge, Miguel Saldivia, and Cristina Peñasco, ‘Glass Half Full or Glass Half Empty? The 2021 Glasgow Climate Conference’, 22(2) Climate Policy 147 (2022), 150.

21

Ibid.

22

Maureen Tehan, et al., The Impact of Climate Change Mitigation on Indigenous and Forest Communities: International, National and Local Law Perspectives on redd+ (Cambridge, UK: Cambridge University Press, 2017), 13, 23, 29.

23

Depledge, Saldivia, Peñasco, supra note 20, 149–50.

24

Ibid., 149.

25

iea, World Energy Outlook 2022 (2022), 439, table A.4a.

26

Ibid.

27

iea, Coal Market Update – July 2022, <www.iea.org/reports/coal-market-update-july-2022>.

28

unfccc, Decision 1/cp.27, Sharm el-Sheikh Implementation Plan, para. 13.

29

See Commonwealth of Australia Constitution Act 1900 (Imp) 63 & 64 Vict., c. 12, s. 9, s. 51(xxix); See also, e.g., Australian Panel of Experts in Environmental Law, ‘Environmental Governance’ (Technical Paper 2, 2017), 15.

30

Samantha Hepburn, Mining and Energy Law (Port Melbourne, Australia: Cambridge University Press, 2015), 5, 10.

31

See, e.g., James Crawford, ‘The Constitution and the Environment’, 13 Sydney Law Review 11 (1991). On the co‑operative implementation of Australia’s international environmental responsibilities, see epbc Act, supra note 10, Section 3(1)(e).

32

Hepburn, supra note 33, 51–93.

33

See, e.g., Guy Dwyer, ‘Regulation of Greenhouse Gas Emissions Generated by Major Projects: Scoping Out the Roles of the Commonwealth and State/Territory Governments’, 37(5) Environmental and Planning Law Journal 541 (2020).

34

See, e.g., epbc Act, supra note 10, Sections 3(1)(a), (b); Environmental Protection Act 1994 (Qld), supra note 11, Section 3; Environmental Planning and Assessment Act 1979 (nsw), supra note 11, Section 1.3(a), (b), (e).

35

See, generally, Judith Brett, ‘The Coal Curse: Resources, Climate and Australia’s Future’, Quarterly Essay (June 2020).

36

epbc 2008/4366, Commonwealth Minister for the Environment, Heritage, and the Arts, Peter Garrett, ‘Notification that the action is clearly unacceptable’, September 2008; a revised project proposal for the same coal mine was later approved with conditions: epbc 2009/4737; epbc: 2016/7851, Tanya Plibersek ‘Notification of decision – refuse to approve’, 8 February 2023.

37

epbc Act, supra note 10, Sections 12, 15B, 16, 18, 20, 21, 23, 24B, 24D, 67A, 130(1).

38

Ibid., Section 12.

39

Ibid., Section 15B.

40

Ibid., Section 24D.

41

Ibid., Section 67.

42

Australian Government Department of Agriculture, Water and the Environment, Graeme Samuel, Independent Review of the epbc Act (Final report, October 2020), ii, 4–5.

43

Ibid., at 5, 47–8, recommendation 2.

44

Ibid.

45

Ibid., 5.

46

Climate Change Act 2022 (Cth) (hereinafter cca).

47

‘Australia ndc 2022 Update’, <https://unfccc.int/documents/510662>.

48

Safeguard Mechanism (Crediting) Amendment Act 2023 (Cth), which reforms the National Greenhouse and Energy Reporting Act 2007 (Cth).

49

Ibid.; Australian Government, Department of Climate Change, Energy, the Environment and Water, Safeguard Mechanism Reforms (Position Paper, January 2023), 1–2.

50

Ibid.; but note concerns about whether the mechanism will effectively reduce emissions: Climate Analytics, Emissions As Usual: Implications for the Safeguard Mechanism of lng and coal mine projects (Report, 2022).

51

See cca, supra note 46, Section 15A inserted by Safeguard Mechanism (Crediting) Amendment Act 2023.

52

epbc: 2016/7851, Tanya Plibersek ‘Notification of decision – refuse to approve’, 8 February 2023; epbc Act Referral No. 2019/8427. See epbc: 2014/7353, Tanya Plibersek, ‘Declaration of a Lapsed Proposal of an Action under the epbc Act’, 4 May 2023; epbc: 2011/5860, Tanya Plibersek, ‘Declaration of a Lapsed Proposal of an Action under the epbc Act’, 4 May 2023.

53

epbc: 2021/9127, Australian Government, Department of Climate Change, Energy, the Environment and Water, ‘Notification of approval: Gregory Crinum Coal Mine M-Block Extension Project, Queensland’, 20 August 2023; epbc: 2021/8980, Australian Government, Department of Climate Change Energy, the Environment and Water, ‘Notification of approval: Isaac River Coal Mine, Central Queensland’, 31 May 2023; epbc: 2020/8669, Australian Government, Department of Climate Change, Energy, the Environment and Water, ‘Notification of approval: Ensham Life of Mine Extension Project’, 30 June 2023.

54

epbc: 2020/8735, Tanya Plibersek, ‘Notification of reconsideration decision – controlled action, Mount Pleasant Optimisation Project, near Muswellbrook, nsw’, 11 May 2023; epbc: 2019/8427, Tanya Plibersek, ‘Notification of reconsideration decision – controlled action, Narrabri Underground Mine Stage 3 Extension Project, nsw’, 11 May 2023.

55

See, e.g., Gloucester Resources Limited v. Minister for Planning [2019] nswlec 7 (hereinafter Gloucester); kepco Bylong Australia Pty Ltd v. Independent Planning Commission (No. 2) [2020] nswlec 179 and appeal (hereinafter kepco); Waratah Coal Pty Ltd v Youth Verdict Ltd & Ors (No. 6) [2022] qlc 21 (hereinafter Waratah).

56

See, e.g., Bulga Milbrodale Progress Association Inc v. Minister for Planning and Infrastructure and Warkworth Mining Ltd [2013] nswlec 48 and appeal; Adani Mining Pty Ltd v. Land Services of Coast and Country Inc [2015] qlc 48; Mackay Conservation Group v. Commonwealth of Australia (Federal Court of Australia, nsd33/ 2015, commenced 12 January 2015); New Acland Coal Pty Ltd v. Ashman and Chief Executive, Department of Environment and Heritage Protection (No. 4) [2017] qlc 24; Upper Mooki Landcare Inc v. Shenhua Watermark Coal Pty Ltd and Minister for Planning [2016] nswlec 6.

57

See, e.g., Rebecca Hiscock, ‘Opportunities to Regulate Greenhouse Gas Emissions as Air Pollution’, 38(4) Environmental and Planning Law Journal 332 (2021), 337–9; Margaret Young and Ella Vines, ‘Biodiversity Litigation in Australia: Constrained Efforts to Protect Beauty, Rich and Rare’, in Biodiversity Litigation, edited by Guillaume Futhazar, Sandrine Majean-Dubois, and Jona Razzaque (Oxford, UK: Oxford University Press, 2022), 46–9.

58

Andreas Buser, ‘National Climate Litigation and the International Rule of Law’, 36(3) Leiden Journal of International Law 593 (2023), 595.

59

Gloucester, supra note 55, paras. 526–7.

60

Ibid.

61

New South Wales Government, nsw Climate Change Policy Framework (2016).

62

Gloucester, supra note 55, paras. 526–7, 699.

63

Ibid., para. 527.

64

Ibid., para. 553.

65

Bylong Coal Project, ssd 6367, nsw Independent Planning Commission Notice of Refusal (18 September 2019).

66

kepco and appeal, supra note 55.

67

kepco appeal supra note 55, para. 171.

68

Narrabri Underground Mine State 3 Extension Project ssd 10269, Statement of Reasons for Decision (1 April 2022) (hereinafter Narrabri), para. 169.

69

Ibid., para. 170.

70

Bushfire Survivors for Climate Action Incorporated (inc 1901160) v. Narrabri Coal Operations Pty Ltd (acn 129850139) [2023] nswlec 69.

71

Gloucester, supra note 55, paras 8, 222, 417, 421, 664, 688; Bylong Coal Project, supra note 65, Statement of Reasons for Decision (18 September 2019), paras 141, 236, 784.

72

Narrabri Underground Mine State 3 Extension Project, supra note 68, paras 183, 241–2.

73

Waratah, supra note 55.

74

Ibid., 369; Queensland Government, Department of Environment and Science, ‘Waratah Galilee Coal Mine ea refused’ (Media release, 3 April 2023).

75

Ibid., para. 36.

76

Ibid., paras 22–3.

77

Ibid., para. 24.

78

Ibid., para. 25.

79

Ibid., para. 35.

80

Ibid.

81

Ibid.

82

Ibid., para. 573.

83

Jacqueline Peel, Hari Osofsky, and Anita Foerster, ‘Shaping the “Next Generation” of Climate Change Litigation in Australia’, 41 Melbourne University Law Review 793 (2017), 811, at 804.

84

Environment Victoria Inc v. agl Loy Yang Pty Ltd & Ors [2022] vsc 814, paras. 60, 63, 65; Climate Change Act 2017 (Vic), ss 17(1)-(4), Sch. 1.

85

Bushfire Survivors for Climate Action Incorporated v. Environment Protection Authority [2021] nswlec 92, para. 149; see generally, Laura Schuijers, ‘Compelled by the Court to Act on Climate Change: Bushfire Survivors for Climate Action Incorporated v Environment Protection Authority [2021] nswlec 92’, 34(1) Journal of Environmental Law 223 (2022).

86

nsw epa Climate Change Policy, 18; nsw epa Climate Change Plan 2023–26, 10, 32.

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