31 October 2019: Just as heatwaves descend on Sydney and the state is gripped by one of the worst droughts on record, last week the NSW Planning Minister introduced a bill into Parliament that, if passed, will significantly limit the powers of planning approval bodies in NSW to address the climate change impacts of new coal mining projects.
By Brendan Dobbie, Special Counsel EDO
Specifically, the bill seeks to amend existing planning laws to prohibit decision-makers from imposing conditions on mining approvals aimed at mitigating the impacts of the greenhouse gas (GHG) emissions produced when coal from those mines is burnt overseas. The bill would also remove a mandatory requirement for decision-makers to consider those emissions when determining whether or not to approve a coal project.
This is a retrograde step that would undermine the ability of decision-makers to properly assess and regulate the climate impacts of coal mines on local communities in NSW.
The scientific reality is that, while climate change is a global problem, its impacts are hitting us here at home – particularly in rural communities struggling with increasingly more severe drought and bushfire seasons, and in coastal communities grappling with flooding and the looming threat of sea level rise. The fact is that Australian coal, no matter where it is burnt, is contributing cumulatively to global climate change. That is why NSW Courts and approval bodies alike have recognised that, in turn, all GHG emissions from NSW coal projects adversely affect the environment and people of NSW.
A reactive bill
It’s no secret that the Government’s new bill is a direct attempt to counter the influence of the NSW Land and Environment Court’s historic decision to refuse the Rocky Hill coal mine proposed near the village of Gloucester, and the NSW Independent Planning Commission’s (IPC) more recent and equally significant decision to refuse a massive new open cut coal mine in the picturesque Bylong Valley. Both decisions cited climate change impacts as grounds for refusal and sent shock waves through the mining industry. The bill also responds to another recent IPC decision – this time to approve the United Wambo “super pit” in the Hunter Valley, but with a condition requiring coal from the mine to be sold only to countries that are signatories to the Paris Accord, or that have equivalent policies in place. Despite that condition not placing a particularly onerous burden on the mine, given that virtually every country in the world has signed up to Paris, it also stirred a strong backlash from the mining sector.
A concerted campaign by NSW Minerals Council
These decisions have led to a concerted campaign by the NSW Minerals Council to lobby the Government to change the law to prevent other mining projects from being rejected on climate grounds. Incidentally, this week their campaign was examined by the Independent Commission Against Corruption’s ongoing public inquiry into lobbying practices. Nonetheless it appears to have succeeded in convincing the Government to attempt to shift the goal posts on GHG assessment in favour of industry.
The Government’s response, albeit disappointing, is not unpredictable. Recent history shows that NSW Governments – of all persuasions – often have knee-jerk reactions to landmark Court rulings that uphold environmental protections. Especially when those cases are brought by conservation groups or local communities in the public interest and in relation to coal mining.
Regulatory certainty required
It is clear that regulatory certainty is required, not just for the mining companies and investors but also for local communities, job-seekers and the environment. However, the Government’s new bill is not the right approach. The Environmental Defenders Office has prepared a series of law reform reports on how to properly integrate climate change into the NSW legal framework.
In order to achieve certainty, the Government needs to scrap this bill, take a step back and properly plan for climate change and the necessary constraints it imposes on the mining sector (including provision for a just transition from mining jobs into other industries compatible with a safe climate). It should clarify our planning laws so they set clear rules that apply equally to all projects to ensure we are doing everything we can to avoid dangerous climate change. Just like the Rocky Hill decision, this is not actually radical. The public interest and principles of ecologically sustainable development, which command this approach, are already in the bedrock of our planning laws – as was confirmed by Chief Judge Preston through the application of orthodox legal reasoning in the Rocky Hill decision. Unacceptable climate change impacts should mean a project is refused, or, alternatively, approved with conditions imposed to effectively offset those impacts.
The science is unequivocal
That is why it is astonishing that, at such a critical point in the climate crisis – when the science is unequivocal about the immediate need to make deep reductions to our GHG emissions in order to prevent catastrophic climate change – the NSW Government seems so desperately willing to prevent decision-makers from attempting to regulate the most significant adverse impact of NSW coal mining on our communities and environment. It is not appropriate to leave it up to others to determine whether GHG emissions from burning our coal are properly managed – we suffer the impacts of burning that coal here. It is our responsibility to ensure that those impacts are properly regulated here.
This proposal shows that the NSW Government is not serious about climate action and in fact is actively working to prevent the proper consideration and regulation of the impacts of coal projects that will contribute to dangerous climate change in NSW.
