Australia’s Environment Minister Tanya Plibersek and two coal mining companies are being taken to the Federal Court today over their failure to protect Australia’s living wonders from climate harm.
The Environment Council of Central Queensland (ECoCeQ), represented by Environmental Justice Australia (EJA), is seeking judicial review of the Minister’s climate risk assessment of two giant coal mines in NSW.
The two proceedings, in Melbourne, are the first court challenges to a coal or gas decision made by Australia’s current Environment Minister and the outcome of the cases is likely to affect all pending coal and gas decisions on the Minister’s desk.
Mining companies, Narrabri Coal Operations (a subsidiary of Whitehaven Coal) and MACH Energy, have joined the proceedings and are defending the Environment Minister’s refusal to act on the scientific evidence of climate risk.
Drug dealer’s defence
Court documents submitted by ECoCeQ say the companies and the Minister will rely on the ‘drug dealer’s defence’: if we didn’t supply the coal, another mine would.
The case comes after the world marked its hottest month on record in July and the UN secretary general, António Guterres warned ‘the era of global boiling has arrived.’
President of the Environment Council of Central Queensland, Christine Carlisle said it was hoped it wouldn’t come to this. ‘Now, we’re relieved these climate cases are now before the Court. We’re doing this because we’re so tired of the sound bites. So tired of photos of ministers posing with koalas, saying all the right things but failing to act.
‘The science could not be clearer. It’s time for our environment minister to step up and act on climate risk.’
‘The Minister’s decision to refuse to act on the climate science is not only, we argue, legally wrong, but feels like a betrayal to the Australians who voted in favour of climate action.’
A matter for the courts
Ms Carlisle said this is now a matter for the courts. ‘We hope not just to win these cases, but to set a precedent that all new coal and gas projects must be properly assessed for their climate risk to our environment.’
Environmental Justice Australia Senior Lawyer Retta Berryman said the client argues it was unlawful for Australia’s Environment Minister to refuse to act on the climate science, outlined in thousands of scientific reports from the IPCC and her own department.
‘Our client asserts the Minister has a legal responsibility to face up to the harm new coal and gas will cause to Australia’s unique plants, animals and places.
‘They argue the drug dealers defence – deployed by fossil fuel companies and governments over the last two critical decades to justify the approval of coal mines – is based on a legally flawed and dangerous logic.’
Ms Berryman said the client’s legal case is rooted in the principle that decisions should be based on science. ‘And facts and sound reasoning.’
The legal intervention
The Living Wonders legal intervention was launched in July last year, seeking to compel the Minister to reconsider the 19 coal and gas proposals because of their climate risk to our environment.
Five coal and gas proposals have since been either withdrawn by proponents or effectively shelved, and 11 remain under before the Minister.
In May 2023, Minister Plibersek made decisions refusing to accept the climate impacts of three new coal proposals that were part of the Living Wonders legal intervention: Narrabri, Mount Pleasant and Ensham.
Narrabri Underground Mine Stage 3 Extension Project: A subsidiary of Whitehaven Coal plans to extend underground mining operations at the Narrabri thermal coal mine until 2044.
Mount Pleasant Optimisation Project: MACH Energy plans to expand open cut thermal coal extraction in the Hunter Valley until almost 2050, making it the largest open cut coal mine in NSW.
By the mining company’s calculation, the expanded project will add 535 million tonnes of carbon dioxide equivalent (CO₂e) to our atmosphere over the lifetime of the mine.
Watch the Living Wonders court cases live via from 10am today via Microsoft Teams (no recording allowed).