Australian court says mine approvals must consider climate harm

The ruling paves the way for Whitehaven Coal to develop a project that will produce as much as 10 million tonnes a year of mostly metallurgical coal.
The ruling paves the way for Whitehaven Coal to develop a project that will produce as much as 10 million tonnes a year of mostly metallurgical coal.PHOTO: REUTERS

SYDNEY (BLOOMBERG, REUTERS) - An Australian court ruled on Thursday (May 27) that the country’s environment minister has an obligation to children to consider the harm caused by climate change as part of her decision-making in approving the expansion of a new coal mine. 

The Federal Court of Australia made the ruling in response to a class action suit brought by eight teenagers and an elderly nun that argued the expansion of Whitehaven Coal’s Vickery Project in New South Wales (NSW) state would contribute to climate change and endanger their future. 

In his ruling Justice Mordecai Bromberg said that the minister, Ms Sussan Ley, could foresee the possibility of future harm caused to the children in the case by the increase in carbon dioxide emissions from Whitehaven’s expansion and therefore must recognise a so-called duty of care, or moral obligation, to the children, when approving it. 

Ava Princi, 17, one of the students that brought the suit, said she was “thrilled” by the judgement because it was the first of its kind.  “We understand it is the first time a court of law, anywhere in the world, has ordered a government to specifically protect young people from the catastrophic harms of climate change,” she said. 

However, the court stopped short of issuing an injunction to prevent the minister from approving the expansion. 

Whitehaven welcomed the decision not to issue the injunction and said it would work towards getting the federal environment protection approval for the expansion, which would produce as much as 10 million tonnes a year of mostly metallurgical coal, used in steel-making.

It is also a setback in a global wave of litigation by activists seeking to compel governments to take more forceful action to avert catastrophic climate change.

While campaigners had been correct to argue Environment Minister Ley has a duty of care to protect Australia's youth from the future impacts of a warming planet, that would be reflected in the existing process of granting approvals to the mine project, Judge Bromberg said.

"I have not been satisfied that a reasonable apprehension or breach of the duty of care by the minister has been established," Judge Bromberg said.

Whitehaven's win comes a day after Royal Dutch Shell was ordered by a Dutch court to accelerate its work to cut emissions, a ruling seen as likely to have repercussions across the global fossil fuels industry.

"The company sees a continuing role for high-quality coal in contributing to global carbon dioxide emissions reduction efforts while simultaneously supporting economic development in our near region," the producer said in a statement.

The case was mounted by a group of eight teenagers, aged between 14 and 17, who are involved in the Greta Thunberg-inspired School Strike 4 Climate Australia protest group, Sister Brigid Arthur, who acted as a so-called litigation guardian, and climate-focused lawyers.

Lawsuits from the United States to the Philippines are seeking to press governments and companies to make faster efforts to reduce greenhouse gas emissions, highlighting wildfires, floods and droughts that scientists argue are being exacerbated by climate change.

Germany's highest court last month forced lawmakers to bring forward its net zero emissions goal by five years after ruling existing law put young people's futures at risk by leaving most emissions cuts until after 2030. The ruling on Thursday against Shell is also seen spurring more challenges.

In Australia, one of the biggest per-capita polluters, climate-related lawsuits have targeted everything from a pension fund's investments to risks in government bonds. The nation has also been criticised by investors and key allies, including the US, for not doing enough to combat global warming.

Australia's Prime Minister Scott Morrison, who once brandished a lump of coal in Parliament in support of the fuel, has declined to set a hard target date to reach net-zero emissions, in contrast to major trading partners Japan and China.

The government has also backed investments in new natural gas-fired power generation, and promoted a so-called "gas-led recovery" from the coronavirus pandemic.

The Whitehaven ruling will be a boost for fossil-fuel exporters as Australian lawmakers increasingly tie an economic recovery from the country's first recession in three decades to the energy sector.

Australia is among the world's biggest exporters of liquefied natural gas and coal.