The recent Anvil Hill case has resurfaced the question of considering greenhouse gas (GHG) emissions when granting mining applications in Australia.
In the Federal Court of Australian on 20 September 2007, Justice Margaret Stone dismissed an application by environmental group Anvil Hill Project Watch Association, which raised concern for the mine's possible contribution to climate change (Anvil Hill Project Watch Inc v Minister for the Environment and Water Resources [2007] FCA 1480).
Environmental Group Claimed Mine Was Not a “Controlled Action”
The proceedings arose from a proposal by Centennial Hunter Pty Limited to construct an open-cut coal mine in NSW’s upper Hunter Valley, known as the “Anvil Hill Project”.
In February this year, a delegate of Federal Minister for Environment and Water Resources Malcolm Turnbull decided that the project was not a “controlled action” within the meaning of section 67 of the Environment Protection and Biodiversity Act 1999 (Cth) (EPBA). This means the project could proceed without further approval being required under the Act.
In May 2007, the environmental group filed an application under section 5 of the Administrative Decisions (Judicial Review) Act 1977 (Cth) for an order to review the decision. The main grounds for review raised were the way the delegate dealt with questions about the adverse impact of greenhouse gas emissions arising from the mine. In particular, the environmental group submitted the delegate erred in looking for a “measurable or identifiable increase in the global atmospheric temperature or other greenhouse gas impacts” resulting from the emissions produced by the mine.
Federal Court Affirms Mine Is a “Controlled Action”
Dismissing the application, Justice Stone said the delegate did not err in determining the mine as a “controlled action”.
Justice Stone concluded that the EPBA does not prescribe a frame of reference by which the Minister can assess the significance or substantiality of an impact, such as greenhouse gasses, on matters protected by the EPBA.
“Without going into detail it is sufficient to say that these assessments involve closer scrutiny of the proposal than is required to that point,” Justice Stone said. “The Minister must also balance the negative effect of the proposed action against any positive benefits the proposal may have.”
She ordered the environmental group to pay the legal costs of the minister and the company.
Environmental Group “Disappointed" - Call for Review of Legislation
The Anvil Hill Project Watch Association (AHPWA) said they are “disappointed” in Justice Stone’s decision.
'It is outrageous in today's world and scientific knowledge that a coalmine does not automatically trigger the EPBC Act," said AHPWA president Christine Phelps in a statement dated 21 September 2007. "It is an environmental protection Act and already recognises anthropogenic climate change as a key threatening process and a major cause of habitat loss.”
According to Ms Phelps, the decision demonstrated the “inadequacy” of current legislation and an “urgent” need for changes.
“At a time of looming federal elections it will be interesting to see how the major parties respond to this decision,” she said.
The AHPWA is awaiting legal advice as to whether to appeal the decision.