Tanya Plibersek has beenaccused of “aiding and abetting” green lawfareas NSW coalmine extensions stall following failed legal action by the Environment Council of Central Queensland, which industry warns is delaying more than a dozen coal and gas projects.
The ECCQ – represented by Environmental Justice Australia – lodged an application on Tuesday for special leave in the High Court to appeal a judgment by the full bench of theFederal Court last month that dismissed its claims.
The High Court action is the third legal challenge by the ECCQ after failing twice in the Federal Court to have climate change considerations applied to the approvals process for extensions ofthe Narrabri and Mount Pleasant coalmines.
Two months after the 2022 election, the ECCQ made a reconsideration request to the Environment Minister and began litigation delaying the approval of the Whitehaven joint venture and MACH Energy coalmines backed by Indonesian, Korean and Japanese investors.
Industry sources said the ongoing court battle was tying up 19 coal and gas projects in NSW and Queensland, which promise tens of billions of dollars in investment and thousands of jobs. The legal action has blocked thetwo major coalmine projects being referredand considered under the Environment Protection and Biodiversity Conservation Act.
Amid claims projects are not being approved, The Australian understands seven coal and gas projects have beenapproved by the Albanese governmentsince the 2022 election. Ms Plibersek’s spokeswoman said “as this matter is before the High Court the minister is unable to comment”.
Ms Plibersek is being urged to not grant a further undertaking to the ECCQ that the coalmine applications not be approved under the EPBC Act until the High Court has dealt with the matter. If an undertaking is granted, proponents could be forced to wait until the end of the year before their applications are assessed under the EPBC.
The EPBC Actdoes not include climate changeas a “matter of national environmental significance”. Large coal and gas projects are captured under the Safeguard Mechanism requiring them to reduce emissions faster.
A Wood Mackenzie report, released in November 2022, said reconsideration by the government on previous approval for 18 coal and gas projects would have significant impacts on coal exports. Assuming 10 of the 17 coal projects under reconsideration were rejected, the report said “the impact would be a reduction of 60 million tonnes per annum in Australia’s coal export supply by 2036”. Thermal coal would reduce by 43 million tonnes.
Whitehaven Coal managing director and CEO Paul Flynn said “it is beyond ridiculous that the ECCQ is seeking further indulgence from the approving authority of a case which has been comprehensively considered by the minister and the courts, and rejected”.
Mr Flynn urged Ms Plibersek to “take a stand against green lawfare whose sole purpose is to stymie and delay projects that would otherwise help deliver jobs and investment at a time when Australians are facing real economic uncertainty”.
“Continuing to indulge taxpayer-funded lawfare preferences the needs of green groups over the job security of Australian workers, those invested in our business (including thousands of shareholders and Australian superannuants) and the energy security of our bilateral trading partners,” he told The Australian.
“The minister has considered the ECCQ’s original reconsideration request, and refused it. The Federal Court has considered the ECCQ’s challenge of this refusal, and dismissed it. The full Federal Court has considered the ECCQ’s appeal of this judgment, and dismissed it unanimously. These processes have taken nearly two years and further delays simply cannot be accommodated.”
Mr Flynn said the Narrabri mine stage three extension, backed by Japanese and Korean investors, is “majority Australian-owned and employs nearly 600 people … it helps underpin energy security for some of our closest trading and security partners in the Asian region”.
Following the Federal Court judgment on May 16, the ECCQ said it was “bitterly disappointed and considering its legal options”.
Environmental Justice Australia co-CEO Elizabeth McKinnon said “our client is dismayed that under law as it currently stands, it is somehow not the Environment Minister’s job to protect our environment from the climate harm of new coal and gas mines”.
“This judgment … does not change the science. What it does show is that Australia’s environment laws are utterly broken,” Ms McKinnon said.
Opposition resources spokeswoman Susan McDonald said the “government’s obvious support for anti-mining lawfare groups was threatening the economy, thousands of good-paying jobs, and important taxes and royalties which should go to Australia”.
The Albanese government came under fire from big business in October 2022 after committing $10m for environmental lawfare groups, including the Environmental Defenders Office.
“The minister is desperate to stave off Greens attacks on her inner-Sydney seat, so is happy to sit back while anti-coal groups bring repeated court actions against these projects, not out of concern for the environment but simply because they hate coal,” Senator McDonald said.
“By funding the Environmental Defenders Office and conducting a fake review into the EDO’s actions criticised by a Federal Court judge, Labor is aiding and abetting attacks on Australian coal projects, which are damaging our international reputation and threatening the livelihoods of thousands of industry workers.”
Minerals Council of Australia CEO Tania Constable said “this is another example of the extraordinary hurdles mining companies have to clear to get a project off the ground and create jobs, in what appears a never-ending cycle of appeals and reconsiderations”.
“These projects – which extend existing mines – have been rigorously assessed and scrutinised by both state and federal government regulators over several years. The original reconsideration request, legal challenge to that decision in the Federal Court and the subsequent appeal have already added years of delay,” Ms Constable said.
“Enough is enough. There must be a reasonable end point to this protracted appeals process that is locking up valuable job-creating projects and chasing investment overseas.”
Anthony Albanese recently left the door open to a “climate trigger” after the Greens demanded it be included in return for their support for Labor’s Nature Positive reforms and EPBC revamp.
CHIEF POLITICAL CORRESPONDENT
Geoff Chambers is The Australian’s Chief Political Correspondent. He was previously The Australian’s Canberra Bureau Chief and Queensland Bureau Chief. Before joining the national broadsheet he was News Editor ...
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