Judge denies climate change challenge to NSW mine expansion
Energy & Natural Resources June 21, 2018 9:55 pm By Miklos Bolza | Sydney

An environmental group has lost a bid to halt the expansion of an open cut mine owned by a subsidiary of Peabody Energy on the grounds that the regulatory approval for the project failed to assess its greenhouse gas emissions.

The Wollar Progress Association claimed the NSW Planning Assessment Commission (PAC) failed to measure greenhouse gas emissions or consider impacts on biodiversity when in April 2014, it approved the expansion of Wilpinjong Coal’s NSW mine and extended its final date of operations from 2026 to 2033.

The Association claimed PAC’s approval of the mine, located close to the village of Wollar near Mudgee, was invalid.

It filed a case in August 2017 against Wilpinjong to restrain it from conducting the mine expansion. NSW Minister of Planning Anthony Roberts who granted approval for the project was listed as second respondent.

“There is no note or record of the PAC’s consideration of an assessment of the greenhouse gas emissions (including downstream emissions) of the development, including by reference to any applicable state and national policies, programs or guidelines, in its Review Report or in its Determination Report,” the Association wrote in its submissions.

The group claimed the PAC “misunderstood” its role by failing to consider downstream emissions from the expansion, particularly in light of the Paris Agreement and the NSW Climate Change Policy Framework.

Wilpinjong said that there was no need for the PAC to give reasons or a detailed assessment considering “broad and aspirational policy targets for overall greenhouse gas emissions over the coming decades”.

Despite this, the Peabody unit argued the PAC would have examined greenhouse emissions in the lead up to approving the mine’s expansion.

“[The] commission must have before it an assessment fundamentally quantitative of greenhouse gas emissions including downstream emissions. There plainly was such an assessment. That assessment is not required to discuss policies as the respondent suggests.”

In his judgment released Tuesday, Justice Terance Sheahan AO of the NSW Land and Environment Court, dismissed all allegations against Wilpinjong, saying the Association had failed to prove the PAC had not properly fulfilled its responsibilities.

“I have concluded that the PAC gave exactly that type of ‘close consideration’ to the issues and the material in this case … and that the compelling submissions made on the company’s behalf are to be clearly preferred,” he said.

Speaking on the judgment, Environmental Defenders Office NSW CEO David Morris said that real reform was still needed, calling the government’s policies on climate change “merely words that do not translate to action”.

“This decision adds weight to the need for law reform to make climate change a critical factor in determinations about projects which will contribute to it. This case highlights the missing link between our aspirations to cut emissions and the actions we must take to get there.”

Wilpinjong Coal was represented by Ashurst. The Wollar Progress Assocation was represented by Environmental Defenders Office NSW.

The case is Wollar Progress Association Incorporated v Wilpinjong Coal Pty Ltd.

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Miklos Bolza

Miklos Bolza has been a journalist for three years. He has written for a variety of publications, including NZ Lawyer, HRD Australia, and Australian Broker. He is currently the Sydney court reporter for Lawyerly.