Community members from Bylong in NSW have appeared in court this week to defend the decision to refuse a large coal mine in their valley, in an appeal brought by the Korean mining company KEPCO.
Represented by the Environmental Defenders Office, the Bylong Valley Protection Alliance (BVPA) stepped in to defend the September 2019 decision by the Independent Planning Commission (IPC) to refuse permission for the proposed mine in the central tablelands .
The refusal came after a lengthy assessment process in which expert evidence, commissioned by the EDO on behalf of the BVPA, was presented on the climate impacts of coal from Australian mines being burned overseas (known as Scope 3 emissions), as well as impacts on groundwater, soils, and heritage.
The IPC found that the mine would cause a drawdown of groundwater of up to nine metres, that the prime agricultural land of the Bylong Valley could not be rehabilitated, and that the greenhouse gas emissions of the mine would contribute to dangerous climate change. The IPC decided that these impacts, among many others, would not be in the public interest.
The IPC declined to take part in the judicial review and defend its own decision-making, on the basis it may compromise its impartiality. The Bylong community successfully argued that it should be allowed to join the Class 4 proceedings in the Land and Environment Court to defend the refusal, with a landmark judgment being delivered in April 2020 – an important precedent for access to climate justice.
The three-day hearing began on 24 August 2020. KEPCO argued that the IPC did not properly consider a number of environmental impacts, did not follow the correct procedures and denied KEPCO procedural fairness.
The BVPA argued that no legal errors were made, but that, in any case, KEPCO’s arguments are not significant enough to overturn the decision of the IPC.
The EDO expects a decision on the appeal to be handed down in the coming months.
Meanwhile, the NSW Government’s Environment Planning and Assessment Amendment (Territorial Limits) Bill 2019, which seeks to limit the ability of the IPC to take the impact of Scope 3 emissions into account in its decisions, is still before Parliament. The EDO has made detailed submissions opposing the Bill, which can be found here.
The EDO is grateful to barristers Stephen Free SC and Rebecca McEwen for their assistance in this case.
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