Hunter Environment Lobby asks Federal Court to overturn key decision in assessment of massive HVO mine expansion

The Hunter Environment Lobby (HEL) has begun legal action to overturn a key federal government decision in relation to the proposed expansion of the Hunter Valley Operation (HVO). [1]

In April, a delegate of the Environment Minister Tanya Plibersek ruled the Commonwealth environment department need not consider potential impacts of the HVO Continuation Project on the Great Barrier Reef because, in her assessment, the reef would not be affected. [2]

HEL is asking the Federal Court to quash that decision, arguing the Minister’s delegate failed in her legal duty to adequately consider that matter, which was raised in public submissions during the public consultation process.

A technical report by Professor Michael Bode appended to one submission forecast the project’s emissions would destroy 1000 hectares of reef. [3]

The HVO Continuation Project would extend the life of two adjacent mines in the Upper Hunter by up to 25 years to 2045 and 2050, extract 400 million tonnes of coal, and cause an additional 1.16 billion tonnes of greenhouse gases to be released into the atmosphere. [4]

The Hunter Environment Lobby has asked the federal court, through its lawyers at the Environmental Defenders Office, to set aside the decision and to have the matter reconsidered.

HEL spokesperson Jan Davis said: “The HVO Continuation Project is the single largest coal mining project in NSW since the Paris Agreement in 2016.

“The science tells us that coral reefs are particularly sensitive to climate change, so every tonne of carbon released into the atmosphere by projects like HVO chips away at the reef.

“The Hunter may be a long way from the reef, but the reef is a national treasure owned by all Australians and must be protected at all costs.

“The reef is also a canary in the coal mine. If we keep digging up and burning coal, the Great Barrier Reef will be one of the first ecosystems to collapse.

“And while it might be first to go, if we keep opening new mega mines like HVO, it won’t be the last.

“HEL also opposes this Glencore-Yancoal joint project because of the impacts it will have on water, local bushland and wildlife, and on the air we breathe. People in the Hunter already suffer some of the worst air in Australia, and this project will make that worse.”

EDO Managing Lawyer Kirsty Ruddock said HEL was concerned the Federal Government had failed to properly consider public submissions about the reef impacts, which is contrary to the EPBC Act. HEL will ask the court to set aside the decision and reconsider the matter.

“It is important part of the EDO’s role to represent clients bringing important matters like this to the Court and to ensure government’s remain accountable for their decisions under the EPBC Act,“ Ms Ruddock said.

James Emmett SC and Jackson Wherrett will appear on behalf of HEL in this matter.

KEY FEATURES OF THE PROJECT

25 additional years of mining. Mining can continue until 2050 at HVO North and 2045 at HVO South, 25 years longer than currently approved. [5]
400 million additional tonnes of coal extracted. During the additional 25 years of operations, the mines will extract 400 million additional tonnes of coal, averaging 16 million tonnes a year. [6]
1.16 billion additional tonnes of greenhouse gas emissions (GHG) are estimated to be emitted This includes 29 million tonnes of CO2 equivalent on site and more than 1 billion tonnes generated off site when the coal is burned. 1.16 billion tonnes is more than double Australia’s total GHG emissions in 2023 [7] (Or more than 8 times NSW’s annual emissions.)
2,772ha of vegetation will be cleared (according to submitters), including the destruction of 197ha of Central Hunter Valley Eucalypt Forest and Woodland Critically Endangered Ecological Community. [8]

KEY ARGUMENT OF THE HEL

The Environment Minister’s delegate when considering the proposal failed to adequately take into account the impacts of 1.16 billion of GHG emissions from the project on the Great Barrier Reef, which is a Matter of National Environmental Significance (MNES) under the Commonwealth Environmental Protection and Biodiversity Conservation Act.
Coral reefs are highly sensitive to changes in global temperatures. It is estimated that 1.16 billion tonnes of GHG emissions will cause the reduction of 1000 hectares of coral reef in the GBR.

PLANNING ASSESSMENT OF THE HUNTER VALLEY OPERATIONS CONTINUATION PROJECT

NSW: The company completed an Environmental Impact Statement last year. The public made comments on the EIS, and the company has now submitted its response to that feedback to the Department of Planning Submissions for its consideration. No timeline for approval has been given.[9]

Commonwealth: Under the EPBC Act, project assessments are dealt with in two parts. The first part (the referral) considers which Matters of National Environmental Significance are likely to be significantly impacted by the proposal. The second part (the assessment) then examines those MNES deemed likely to be impacted in detail. On April 26, 2024, a delegate of the Environment Minister issued a Statement of Reasons for a Decision on Controlled Action and Assessment Approach. In her Statement of Reasons, the Minister’s delegate “determined that the proposed action is unlikely to have a significant impact on the Great Barrier Reef Marine Park”. [10]

REFERENCES

[1] 240528 Originating Application (sealed). 4-6-24

[2] Statement of Reasons HVO North, Cwth, HVO Continuation.

Statement of Reasons HVO South, Cwth, HVO Continuation. 26-4-24.

[3] Technical report by Professor Michael Bode.

[4] Technical report by Professor Stephen Turton.

[5] Statement of Reasons HVO North, Cwth, HVO Continuation.

Statement of Reasons HVO South, Cwth, HVO Continuation. 26-4-24.

[6] Statement of Reasons HVO North, Cwth, HVO Continuation.

Statement of Reasons HVO South, Cwth, HVO Continuation. 26-4-24.

[7] Technical report by Professor Turton.

[8] Lock the Gate Submission. 29-11-24