Landmark climate change ruling puts heat on industry

Over 800 people gathered on Newcastle's Nobby's Beach on Saturday the 4th November, despite positively miserable weather, to spell out the words "Beyond Coal" with their bodies. The mass public action occured at the mouth of the world's biggest coal port, to protest the role of Newcastle coal exports in fuelling global climate change.

Landmark climate change ruling puts heat on industry
Anne Davies, Sydney Morning Herald, 28-Nov-2006

DECISION: Gray vs the Minister for Planning
Land and Environment Court of New South Wales, 27-Nov-2006

Appeal on green ruling likely
Anne Davies, Sydney Morning Herald, 29-Nov-2006

Approval for Anvil Hill Project remains on track
Media Statement, Centennial Coal, 28-Nov-2006

Environmental Victory in Anvil Hill Court Case
Website statement, Anvil Hill Alliance, 27-Nov-2006

Greenhouse gas mine ruling 'disastrous'
NEWS.com.au, 27-Nov-2006

Classics student's herculean battle a triumph
Wendy Frew, Sydney Morning Herald, 29-Nov-2006

THE climate-change impacts of new industries, including burning coal extracted from NSW mines, will have to be considered by the State Government following a landmark judgement yesterday.

The court victory for a 26-year-old environmental activist, Peter Gray, has put another hurdle in the way of Centennial Coal's giant Anvil Hill coalmine, planned for the Upper Hunter. While the decision, delivered in the Land and Environment court, does not block the mine's development entirely, Justice Nicola Pain ruled that a crucial step - the director-general of planning's acceptance of the environmental assessment - was flawed and invalid.

The Government will now have to take account of the greenhouse gas emissions from burning the mine's output - even though 80 per cent will be exported.

And the case is likely to have ramifications far beyond Anvil Hill. All greenhouse gas producing developments will now be required to include an assessment of their contribution to global warming. This could include coal mines, steel mills, electricity plants, and even new tollways.

The environmental impact statement for the mine may have to be re-exhibited, although government sources said last night they believed this could be avoided. Alternatively, the Government could appeal, although the Premier declared this week that he intended to make climate change a big issue in the coming election campaign.

"I consider there is a sufficiently proximate link between the mining of a very substantial reserve of thermal coal in NSW, the only purpose of which is for use as fuel in power stations, and the emissions of GHG [greenhouse gas] which contribute to climate change/global warming."

It was clear that climate change was affecting the Australian and NSW environments and this meant the burning of coal had to be considered in the environmental assessment process. The judge pointed to legislation requiring the Planning Department to encourage ecologically sustainable development.

According to the Government's own secret assessment, which came to light during the case, the 10.5 million tonnes of coal from Anvil Hill, when burnt, would produce 12.5 million tonnes of carbon dioxide a year - equivalent to doubling the number of cars on NSW roads to 8 million.

Mr Gray, the activist from Newcastle, said after the ruling: "I'm over the moon. It's a huge win for the people of NSW and the people of the globe. We've seen the NSW Government try, quite literally, to defend their right to ignore climate change, but the court has ruled that this is not an acceptable approach."

There was an extra sting for the Minister for Planning, Frank Sartor. Justice Pain rejected the argument that the fast-track approvals process for major projects, introduced two years ago, meant that environmental impact statements were either optional or could be less thorough. Mr Sartor said the Government would carefully consider the implications.

"It could have significant implications, not just for the mining industry but for a range of other industries in this state."

Copyright 2006 Sydney Morning Herald

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AdvertisementTHE NSW Government is likely to appeal against the landmark ruling that it must consider the greenhouse impacts of burning coal mined from Anvil Hill.

Warnings have come from state and federal ranks that Monday's decision could lead to similar assessments for all mines, roads and other energy-intensive industries.

Justice Nicola Pain, of the Land and Environment Court, ruled that a decision by the Department of Planning's director-general to accept the environmental impact statement was flawed and invalid.

She said there was "a sufficiently proximate link" between mining of coal and the emission of greenhouse gases, and that it should have been considered in evaluating the project.

But Justice Pain stopped short of ordering the impact statement for the giant mine in the upper Hunter be redone and put back on public exhibition, saying only that the Government needed to consider the impacts.

The NSW Minister for Planning, Frank Sartor, said that the impact of Justice Pain's ruling appeared to be "more theoretical than practical".

But the Government is worried about the precedent it sets. A source said if the Government accepted that a coalmine could not proceed because of coal-burning emissions, then all coalmines would necessarily be blocked.

There are also concerns that the ruling would flow through to developments such as aluminium smelters, which are large users of electricity, and even toll roads.

"Assessments under the Environmental Planning Assessments Act are based on the local effect of a development. Never before have we had to take into account the global impact," Mr Sartor said.

"As a tool for addressing greenhouse issues, this court decision is very ineffective. Climate change needs to be addressed by broader measures such as CO 2 trading schemes and renewable energy targets."

The Federal Government has condemned the decision. The Minister for the Environment, Ian Campbell, said: "It's a disastrous decision for climate change. If we think we're going to solve the problem by closing down fossil fuel industries we are actually going to destroy any chance of a solution."

The federal Labor MP for the Hunter, Joel Fitzgibbon, said local planning laws were the wrong mechanism for reducing emissions. But the NSW Greens MP Lee Rhiannon said that if the Premier, Morris Iemma, wanted to convince the electorate he was committed to averting climate change he needed to reject the proposed mine.

"Whether Anvil Hill goes ahead or not is now symbolic of the Government's sincerity on climate change," she said.

The Greens have been targeting the Hunter electorates as part of their campaign on climate change. Anvil Hill, which alone will increase NSW's coal output by 20 per cent, is the focal point.

The company developing the mine, Centennial Coal, issued a statement to the stock exchange saying: "The decision … means that the current approval process for the Anvil Hill mine … remains on track."

The NSW Minerals Council warned that if left unchallenged, the decision could "not only close down mining, but the entire manufacturing sector in NSW".

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The decision of Justice Pain in the NSW Land & Environment Court was handed down yesterday and means that the current approval process for the Anvil Hill mine under Part 3A of the Environmental Protection and Assessment Act 1979 remains on track.

Contrary to erroneous media reports, the judgment is positive for Centennial because Justice Pain has accepted the arguments of the Company and the Director-General that the Court should decline to intervene in the approval process by setting aside the exhibition of the EA.

Mr Peter Gray commenced proceedings in September this year and was seeking:
• a declaration that the view formed by the Director-General of the Department of Planning (the D-G) that Centennial’s environmental assessment (EA) adequately addressed the D-G’s environmental assessment requirements was void and without effect; and
• an order setting aside the decision of the D-G to place the EA on public exhibition.

The basis for Mr Gray’s claim was that Centennial failed to satisfy the D-G’s requirement to prepare a “detailed greenhouse gas emission assessment” because Centennial’s EA did not deal with downstream greenhouse emissions produced as a result of the burning of coal by end-users.

Although Justice Pain determined that the view formed by the D-G was void and without effect, the decision of Justice Pain not to exercise her discretion to set aside the Director-General's decision to place the EA on public exhibition means that the Part 3A approval process for the Anvil Hill mine can continue unimpeded.

Justice Pain recognised that while a document such as an EA is an important part of the decision making process under Part 3A, perfection is not required.

Any “imperfection” that may have existed as a result of not undertaking an assessment of downstream greenhouse gas emissions as part of the EA has since been addressed under the Part 3A process. In particular, this is because Centennial has, in response to public submissions, prepared a document that comprehensively deals with the downstream greenhouse gas impacts of the
Project.

“Centennial has consistently been of the belief we have submitted an Environmental Assessment that would withstand the rigours of the technical and scientific scrutiny of the Independent Hearing and Assessment Panel and the overall planning assessment process”, said Centennial Coal’s Managing Director, Mr Bob Cameron.

Tuesday, 28 November 2006

http://www.centennialcoal.com.au/

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Justice Nicola Pain made the historic decision to set aside the Director-General's acceptance of the Environmental Assessment for the Anvil Hill coal mine, on the grounds that it did not include a comprehensive greenhouse gas assessment.

"This is a turning point in the campaign against greenhouse polluting industries," said Paul Winn of the Hunter Community Environment Centre, "and a victory for common sense and the planet."

Centennial Coal, proponent of the Anvil hill coal mine, may now have to rewrite their environmental assessment to comply with this decision, assessing the impact of greenhouse pollution from coal dug at the mine on the NSW environment.

The groups that made this happen:
Anvil Hill Alliance
Hunter Community Environment Centre
Rising Tide Australia

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A COURT decision not to allow the development of a new coal mine near Newcastle was today labelled dangerous and disastrous by federal Environment Minister Ian Campbell.

The NSW Land and Environment Court yesterday ruled Centennial Coal had failed to adequately consider the impact of greenhouse gas emissions from its proposed Anvil Hill coal mine in the Upper Hunter.

"It's a disastrous decision for climate change," Senator Campbell said.

The decision is seen as a win for environmentalists, with Australian Greens Senator Christine Milne today saying she would look to enshrine the ruling in law this week.

"It is a real precedent in environmental law," Senator Milne said.

"I'm moving a greenhouse trigger in (the Environment Protection and Biodiversity Conservation Act debate) this week and, hopefully, both the Government and the Opposition will support that if they're serious about reducing greenhouse gases."

A "greenhouse trigger" would force the federal minister for the environment to assess projects, like Anvil Hill, on the basis of their potential to pollute the atmosphere, amongst other considerations.

But Senator Campbell said the Government would never support a greenhouse trigger.

"If we think we're going to solve the problem by closing down fossil fuel industries, we are actually going to destroy any chance of a solution," he said.

" ... it would allow the effective closing of every coal mine in the country," he said.

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Down to earth … mining comes at a heavy environmental price, says Peter Gray. Photo: Jon Reid

SIX months ago Peter Gray abandoned his ancient history studies to pursue a much more contemporary issue.

The classics student took court action against Centennial Coal and the State Government for failing to assess the environmental damage of burning coal from Centennial's Anvil Hill mine, proposed for the Upper Hunter.

A member of the climate change action group Rising Tide, the Novocastrian, 26, had written his share of letters to politicians and government submissions about the climate change threat from the massive expansion of NSW's coal industry.

"It didn't get very far and it was very frustrating," said Mr Gray, who is now celebrating a surprise legal victory in the Land and Environment Court.

The court's decision - that the Government has to take account of greenhouse gas emissions from burning the mine's coal, even if the coal is exported - could set a new direction for how NSW deals with an industry that is both the source of jobs and export income, and a big contributor to global warming.

"The thrust of the case was not that you should not approve Anvil Hill but that it should be assessed [for climate change] before it goes ahead," Mr Gray said.

"It's not as simple as closing down the coal industry … but let's look at the damage coal does."

On a national basis that damage includes at least $61.5 billion worth of coal exports that lead to greenhouse emissions; a threat to water supplies because of the huge amount of water used by mine operators and damage done to aquifers and river beds by mining. In the Hunter Valley thoroughbred breeders, farmers, tourism operators and wineries are all worried about the effect that coal mining has on their businesses.

"This is an industry that has an effect on every other industry and sector in NSW, on drought, on bushfires. It is an industry that is extremely water intensive," Mr Gray said. "The coal it mines gets burnt in overseas power stations and comes back to us as climate change and then we get less rain."

The Premier, Morris Iemma, plans to campaign on climate change before next year's election but his commitment to it would be hollow if the Government continued to ignore the climate change associated with coal exports, Mr Gray said.

Born in Maitland and educated in Newcastle, he was conscious of the role the Hunter Valley was playing in a global phenomenon. "It would be great to go back to my studies in five years but … I gave up my studies because this issue is much more important to me."

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