Adani Coalmine Approval Overturned in Federal Court
Monday 10 August 2015 @ 1.40 p.m. | Legal Research
Environmentalists have had a big win in their case against Australia's largest coal mine after the Federal Court overturned Federal environmental approval granted to Adani.
The Indian mining giant's environmental authority for the Carmichael mine in Queensland has been set aside after court action was taken by the Mackay Conservation Group, which alleged Environment Minister Greg Hunt had not considered department advice about two threatened species.
Background to the Case
The Carmichael coal mine, proposed by Indian company Adani, was projected to operate for 60 years and was predicted to emit more than 200 million tonnes of greenhouse gas throughout its lifetime. It received Federal approval in July 2014. The project included an open cut and underground coal mine and a 189 km rail link to transport the coal from the Galilee Basin to Abbot Point, near the Great Barrier Reef.
However, the approval of the mine was challenged by the New South Wales Environmental Defenders Office (EDO), on behalf of the Mackay Conservation Group, in the Federal Court. They argued that Federal environment minister Greg Hunt failed to take into account the climate impact of greenhouse gases emitted by the burning of coal from the Carmichael mine when assessing whether to grant its licence. The EDO also cited the impact of global warming on the Great Barrier reef, an area of world and national heritage, as a relevant consideration which the minister should have taken into account. The case was also based upon the impact on vulnerable species as well as Adani's environmental track record, which was claimed had not been taken into account.
The Law Being Challenged
The court challenge particularly related to a section of the Environment Protection and Biodiversity Conservation (EPBC) Act, the national environmental legislation. Section 136 of the act states that assessments must take into account international principles of ecological sustainability, meaning that for projects that impact areas of national environmental significance, consideration must be given to concepts such as the needs of future generations and the precautionary principle. The NSW EDO has argued that these principles necessarily required the Minister to consider the climate change impact of emissions from the burning of coal when deciding whether to approve a mine licence.
Result of Federal Court Challenge
The Federal Court has restrictively interpreted the EPBC Act by finding that the Adani mine's Federal Government approval was found to have not considered two vulnerable reptile species - the yakka skink and the ornamental snake.
Sue Higginson, the principal solicitor at the EDO NSW, which ran the case for the conservation group, said:
“This kind of error in the decision-making process is legally fatal to the minister’s decision…The conservation advices were approved by the minister in April last year, and describe the threats to the survival of these threatened species, which are found only in Queensland…The law requires that the minister consider these conservation advices so that he understands the impacts of the decision that he is making on matters of national environmental significance, in this case the threatened species.”
Next Steps
The decision by the Federal Court to overrule the licence means that the Federal Court felt that the exercise of power by the Federal Minister in issuing the coal licence to Adani was improper. For Adani to continue with its coal project it will need to re-apply for the coal licence and the Federal Minister must re-approve the licence taking proper account of the mandated relevant considerations set out within the EPBC Act.
In a statement, the Environment Department said the decision to set aside the approval was a "technicality" and had been done with the consent of all parties involved in the case. "Reconsidering the decision does not require revisiting the entire approval process," the statement said. However, it will take six to eight weeks until it is reconsidered.
Adani also issued a statement saying it is:
"committed to ensuring its mine, rail and port projects in Queensland are developed and operated in accordance with Commonwealth and State laws and regulations, including strict environmental conditions...Adani acknowledges the Federal Environment Minister has consented to remake the July 2014 environmental approval decision for the Carmichael Coal Mine and Rail project after a conservation group’s judicial review application...It is regrettable that a technical legal error from the Federal Environment Department has exposed the approval to an adverse decision...It should be noted the approval did include appropriate conditions to manage the species protection of the yakka skink and ornamental snake."
The Federal court’s decision echoes a ruling by the same court in 2013 that Tony Burke, the then environment minister, had erred by failing to properly consult his department’s advice on the impact of the Shree Minerals mine on the Tasmanian devil.
The Australian Conservation Foundation, which has lobbied investors not to back the mine, said Hunt could not make the same approval decision as before.
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