Bushfire Survivors Remain Determined to Advocate for Vulnerable Communities as Court Upholds Whitehaven Coal Mine Expansion
July 5, 2023 – Today, the Land and Environment Court issued a ruling affirming the legal validity of the Independent Planning Commission’s approval of the Narrabri Coal Mine expansion. This decision comes despite the project’s substantial carbon footprint, equivalent to Australia’s entire annual CO2 emissions.
Bushfire Survivors for Climate Action, who were legally represented by the Environmental Defenders Office, had diligently pursued a judicial review following the IPC’s green light for the Whitehaven Coal project back in April 2022.
Under the IPC’s decision, Whitehaven Coal is granted the authority to extend its mining operations up to 10 kilometers south of the current mine site, with a coal seam spanning 500 meters wide, enabling the extraction of an additional 82 million tonnes of coal, extending their operations until 2044.
Fiona Lee, a resilient bushfire survivor and spokesperson for Bushfire Survivors for Climate Action, emphasized:
“We are disappointed by the outcome. Sadly, this shows that planning decisions today are out of step with community expectations because approving high emitting projects is exposing communities to more extreme impacts from climate change.
“We have a moral obligation as climate survivors to challenge dangerous and polluting planning decisions that are not in the public interest, to try and prevent other people from going through what we’ve endured,”
“We believe it is unreasonable for planning authorities to approve projects with such a massive climate footprint at a time when greenhouse gas emissions must be rapidly reduced to limit the devastating impacts of global warming.”
Ms Lee said.
IPC pins hope on unknown technology
The Narrabri coal mine expansion will generate 480Mt CO2-e in emissions, roughly equal to Australia’s total greenhouse gas emissions in 2022 (487Mt CO2-e), and includes some of the longest (10km) and widest (400m) underground longwalls in Australia.
Even if we accept the argument that these Scope 3 emissions should be accounted for by the countries that burn the coal, this is a highly methane polluting mine, releasing 32Mt CO2-e in Scope 1 emissions.
The Independent Planning Commission (IPC) accepted this but relied upon the hope of future, uncertain technology to reduce methane levels.
The Land and Environment Court decision came on the same day as the International Energy Agency (IEA) published a report saying fugitive emissions of methane in Australia are far higher than reported, which means that efforts by government and industry to meet the country’s net zero targets need to be significantly recalibrated.
The IEA estimates that methane emissions from coal mining in Australia are about 81% higher than the national inventory data, and for oil and gas sector, 92% higher.
The Chair of the IPC, Professor Mary O’Kane has been criticised in the past and had to exclude herself from the decision process to approve the Narrabri Gas Project because of her previous commercial ties with Santos.
As NSW Chief Scientist & Engineer, O’Kane conducted a review of the state’s coal seam gas activities. The Terms of Reference for her review were to ask “How can the gas industry proceed?” – not “Should the gas industry proceed?”
O’Kane’s coal seam gas review was only concerned with overcoming obstacles to the industry.
Independent Planning Commission approval of the Whitehaven coal mine extension can be downloaded as a PDF: Statement of Reasons, Narrabri Underground Mine Stage 3 Extension Project.
Legal challenges to climate wrecking coal mines
The NSW Land and Environment Court considered the challenge to the grant of development consent by the Independent Planning Commission (IPC) for an extension to an Underground Mine, and:
– whether the decision was legally unreasonable;
– whether interim findings were legally necessary to enable the IPC to make a legally reasonable decision;
– whether the statutory context required interim findings to be expressly made by the IPC;
– whether an inference should be drawn that the IPC’s assessment of impacts of the Extension Project could not be within the range of possible lawful outcomes as an exercise of power;
– whether Extension Project was in the public interest.
BSCA has been at the cutting edge of legal reform to reduce climate emissions and hold governments, agencies and companies to account.
Earlier this year, the NSW Environment Protection Agency was the first such agency in the country to introduce a climate policy, which it was required to do as a result of landmark court action taken by BSCA.
“Climate litigation is gruelling but necessary work in chipping away at the causes of climate change, and I’m proud to have stood up for survivors like my family and my neighbours”
“We shouldn’t have to do this work – our governments should be protecting our communities from the worst impacts of climate change including worsening bushfires and they can start by removing assumed support for coal extraction from out of date NSW climate policies including the Strategic Statement on Coal and the Net Zero Plan.”
Ms Fiona Lee said.
See also: Court challenges Government for not considering climate impacts of new coal
In a seperate court action still before the federal court, Environmental Justice Australia (EJA) and the Environment Council of Central Queensland (ECoCeQ) are challenging the decision of the Environment Minister to not reconsider the assessment criteria of three new coal projects.
The three coal projects which Tanya Plibersek as Environment Minister has approved are: Mach Energy’s application to expand its NSW Mount Pleasant open-cut mine; Ensham coal mine extension in Queensland; and Whitehaven Coal’s application to extend its NSW Narrabri underground mine.
Environmental Defenders Office (EDO) Director Legal Strategy, Elaine Johnson said:
“There is a huge body of scientific evidence that says we must leave coal and gas in the ground to maintain a liveable planet. Approving more coal mines flies in the face of all the evidence.
“The climate crisis has already begun, and Australians everywhere are highly vulnerable to its impacts.
“The IPC heard that more than 30 people died during the Black Summer bushfires, some 3,000 people lost their homes, and more than 400 people lost their lives in the immediate aftermath due to smoke inhalation.
“Yet the commission still made the very dangerous decision to approve a further coal expansion in NSW on the basis that the mine was in the ‘public interest’.
“This case clearly demonstrates that our planning laws urgently need to be amended to reflect the reality that coal expansions are now completely incompatible with ensuring the health, safety and security of Australians.
The Bureau of Meteorology State of the Climate Report 2021 revealed the number of extreme fire danger days in Australia had increased tenfold since the 1960s, with 143 extreme fire danger days in the decade of the 2010s compared to 14 in the decade of the 1960s.
Bushfire Survivors for Climate Action are carefully considering the Court’s judgement and vowed to keep fighting for vulnerable communities as the climate crisis continues to worsen.
Bushfire Survivors For Climate Action press conference and case launch 15 February 2023.
Photo: Cassandra Hannagan
The legal challenge
Bushfire Survivors for Climate Action v Independent Planning Commission and Narrabri Coal (Whitehaven)
Project approval: On April 1, 2022, the NSW Independent Planning Commission’s (IPC) approved an extension of Whitehaven Coal’s Narrabri Underground Mine. [See references below]
The IPC’s decision allowed Whitehaven Coal to extend operations and approved some of the longest (10km) and widest (400 metres) underground longwalls in Australia.
The project will generate at least 480Mt CO2-e in emissions, roughly equal to Australia’s total greenhouse gas emissions in 2022 (487Mt CO2-e) at a time when greenhouse gas emissions must be rapidly reduced to limit the devastating impacts of global warming. [See reference below]
Legal proceedings: In July 2022, the Bushfire Survivors for Climate Action (BSCA) launched a legal challenge to the IPC determination. The judicial review sought by the BSCA will be heard by the Land and Environment Court over three days from February 15 to 17, 2023.
The BSCA’s legal representative is the Environmental Defenders Office. BSCA will argue in court it was legally unreasonable, irrational and illogical and not in the public interest for the IPC to approve the project because it would contribute to climate change-related extreme weather events, such as the recent catastrophic bushfires and floods in NSW.
When the IPC considered Whitehaven’s development application, it accepted the project would contribute to climate change. However, the commission made no findings in relation to the project’s climate impacts on the people, the environment and the economy of NSW, which are grave. BSCA will argue that the IPC’s failure to do so was legally unreasonable.
Principles
The IPC has a duty to make legally reasonable, rational planning decisions in the public interest. BSCA will argue the IPC’s approval of a major new source of climate pollution is legally unreasonable and irrational.
The Environmental Planning and Assessment Act 1979 is clear in purpose and objectives on the need for decision makers to facilitate ecologically sustainable development. It’s time for decision makers to recognise that approving large coal mines is antithetical to the purpose of the Act.
The climate crisis has already begun, and Australians everywhere are highly vulnerable to its impacts. There is a huge body of scientific evidence that says we must leave coal and gas in the ground to maintain a liveable planet. Approving more coal mines flies in the face of all the evidence. Approving new coal mines and coal mine expansions is a threat to the people of NSW, undermines the state’s net-zero targets, and shifts the burden of climate pollution to future generations.
About the plaintiff
Bushfire Survivors for Climate Action (BSCA) is a non-partisan, community organisation made up of bushfire survivors, local councillors, firefighters and their families working together to call on our leaders to take action on climate change. BSCA formed shortly after the Tathra and District fire in March 2018, and its founding members were all impacted by bushfires, including the Black Summer bushfires in 2019-20, Blue Mountains in 2013, Black Saturday in 2009 and Canberra in 2003.
Witnesses
Distinguished climate synthesis scientist, Professor Penny Sackett, former Chief Scientist for
Australia, will provide expert evidence regarding the climate change impacts of the project.
References
- IPC media release regarding the determination: Extension to Narrabri mine receives conditional
development consent, Media Release, NSW Independent Planning Commission, April 1, 2022. - IPC determination: Statement of Reasons, Narrabri Underground Mine Stage 3 Extension Project, NSW IPC, April 1, 2022
- IPC project page: Narrabri Underground Mine Stage 3 Extension Project, NSW Independent
Planning Commission website. - EDO media release at case launch: Bushfire survivors’ legal challenge to massive Narrabri coal
mine extension, EDO media release, July 5, 2022. - Australia’s greenhouse gas emissions: March 2022 quarterly update, Department of Climate
Change, Energy, the Environment and Water. “The report estimates Australia’s total greenhouse
gas emissions for the year to March 2022 to be 487.1 Mt CO2-e, up 1.5% or 7.4 Mt CO2-e) on the
previous year.”
