Courting disaster
The Federal Court of Australia sits in all state capitals. Brisbane's is on North Quay, a step away from the northern access to the Kurilpa Bridge. So, after a morning of brain-bending legal technicalities, you can wander across this striking construction – the largest hybrid tensegrity* bridge in the world – and grab a bite of lunch at one of my favourite riverside attractions, the Gallery of Modern Art.
Over two days, the Australian Conservation Foundation (ACF), represented by the Environmental Defenders Office Queensland (EDO CEO Jo-Anne Bragg and ACF CEO Kelly O'Shanassy met the press outside court, top) made its case for the review of the decision by the Federal Minister for the Environment, Greg Hunt, to approve Adani Mining's proposed coal mine in the Galilee Basin of Central Queensland and its associated infrastructure. QCs representing both the Minister and the coal company defended his position.
The Minister's approval of Adani's Carmichael mine had already been challenged last year in the Federal Court of New South Wales and 'set aside'. It was alleged that Hunt had failed to consider global greenhouse gas emissions and Adani's history of environmental negligence, but it was his lack of regard for conservation advice concerning two Federally-listed Vulnerable species – the Yakka Skink and the Ornamental Snake – that was the undoing of his decision in August 2015.
On 15 October, however, Minister Hunt announced his re-approval of the mine with additional compliance conditions.
Round 2 of the Carmichael mine approval battle was staged in Brisbane last week. ACF alleged that the Minister had failed to comply with specific legislative requirements under the Environment Protection and Biodiversity Conservation Act (EPBC).
The Great Barrier Reef is included in the World Heritage List because of its 'outstanding universal values'. Australia is a signatory to the World Heritage Convention and is therefore obliged 'to ensure that effective and active measures are taken' for its protection, including appropriate legal measures necessary for that purpose – primarily by means of the EPBC Act. The ACF argued that the Minister, when deciding whether or not to approve Adani's mine, should have acted consistently with Australia's obligation under the World Heritage Convention, and attempted to quantify the likely impact of the combustion emissions generated by Adani's coal on the world heritage values of the GBR.
The two greatest threats to the GBR are from the warming and acidification of seawater resulting from the increased greenhouse gas emissions associated with anthropogenic climate change. The Outlook Report 2014 produced by the Great Barrier Reef Marine Park Authority rated these threats as 'almost certain' to occur and to have 'catastrophic' consequences.
After his first decision was set aside in August last year, the Minister received new material about the impact of greenhouse gas emissions on the GBR. The first few months of 2016 have seen the worst bleaching event ever recorded, with more than 90 per cent of the northernmost reaches of the Reef being effected, eliciting global opprobrium.
Projects that are likely to have a significant impact on matters of national environmental import must be appraised by the Australian government under Part 8 (assessment) of the EPBC Act. Minister Hunt, however, took guidance from the Co-ordinator General (CG) of Queensland under a bilateral agreement between the state and federal governments. Adani had produced an Environmental Impact Statement (EIS) for consideration by the CG, who then prepared an Assessment Report for Minister Hunt.
The problem with an EIS is that it does not require consideration of Scope 3 emissions** arising from the transportation of the coal (during its export, not from mine to port) and combustion of the coal at its destination. Combustion emissions would appear, given the global scientific consensus and the perceived effects on the Reef of increased ocean temperatures, to have a 'relevance impact' in this case.
Much debate over the two days in court centred on Section 527E of the EPBC Act, concerning the 'indirect consequences' of an action. You can read about this in greater detail than I could adequately explain here. Justice Griffiths soon realised that the 'unpacking', or interpretation, of 527E was at the heart of the case.
The ACF contended that the Minister had asked himself the wrong questions about the indirect consequences of the action of developing the mine, not based on criteria sourced from the EPBC Act, and therefore had not considered the indirect consequences that pose the greatest threat to the GBR.
The Minister dismissed the relevance of Scope 3 emissions in the context of Australia's national emissions inventory, and determined that any impact attributable to the Carmichael coal's emissions was speculative. He concluded that it was 'difficult to identify the necessary relationship between the taking of the action [of developing the mine] and any possible impacts on relevant matters of national environmental significance which might occur as a result of an increase in global temperature'. The Minister's counsel conceded that 'the necessary relationship' was Hunt's 'shorthand' for substantive cause. Justice Griffiths found it curious that the Minister, with Departmental advice (and lists of mandatory considerations and other factors to be taken into account), wasn't more sensitive to the importance of clarity in his deliberations and direct reference to 527E.
In the absence of certainty, the Minister should have applied the precautionary principle: this was the ACF's third ground for bringing the case. Minister Hunt's elimination of the 'impact level' of assessment at an early stage of his considerations meant that an 'active intellectual engagement' failed to occur at a later stage in the process. His inability to establish a substantive cause between the action and the impacts meant he was under no obligation to consider 527E, his counsel concluded, because in his opinion there were no impacts.
I have attended several cases in which environmental protectors sought to compel government to exercise caution in the face of uncertainty, whether concerning the recharge of groundwater, the location of core populations of threatened species, or the global impact of burning massive amounts of Queensland coal, no matter where, on this nation's beloved Barrier Reef. What all these cases have highlighted, without exception, is that old legislation is inadequate at a time when rapid transition to a climatically changing world is imperative.
Justice Griffiths will announce his decision in three to six months. He seemed a reasonable man, so I live in hope.
* defined as 'a stable three-dimensional structure consisting of members under tension that are contiguous and members under compression that are not; the characteristic property of such a structure'
** as defined under the Greenhouse Gas Protocol, an internationally recognised accounting system for the measurement, reporting and management of greenhouse gas emissions
