Climate Change Law

This judgment is available at:http://www.austlii.edu.au/au/cases/nsw/NSWLEC/2007/741.html.The following case summary is drawn from my forthcoming article on climate change law to be published in MULR.  

The case of Walker v Minister for Planning & Ors concerned a concept plan for residential subdivision and a retirement development on coastal plain land north of Wollongong. The Planning Minister’s approval of the plan was challenged by the applicant on various grounds, including that the Minister failed to take account of mandatory considerations, namely ecologically sustainable development (ESD) and the impacts of the proposal on the environment, including whether the flooding impacts of the proposal would be compounded by climate change. In the voluminous documentation presented to the Minister as part of the approval process there was no mention made of increased flood risk consequent upon climate change, suggesting that the relevance of this consideration was not assessed by decision-makers.

Following an extensive review of the scientific evidence supporting the occurrence of global warming and the need to adapt to climate change, Justice Biscoe turned to the question of whether the Minister had failed to take account of ESD through the absence of any consideration of climate change-related flood risks. His Honour remarked that climate change was “a deadly serious issue” and that “climate change flood risk is, prima facie, a risk that is potentially relevant to a flood constrained, coastal plain development”. Whether climate change flood risk was a relevant consideration in the case at hand turned on construction of the subject matter, scope and purpose of the relevant New South Wales planning legislation. Justice Biscoe held that:

“There may be found in the subject matter, scope and purpose of this legislative scheme, as with nearly every statute conferring power to make an administrative decision, an implication that the decision is to be made on the basis of the most current material available to the decision-maker which has a direct bearing on the justice of the decision … So too, in my opinion, with the deadly serious issue of climate change, which has loomed ever larger in the public and political eye for years.”

In the context of the project at issue, the Court found that climate change flood risk could be described as “an aspect of the public interest that potentially has a direct bearing on the justice of the decision”, making it a relevant consideration in decision-making. Consequently, the Minister’s failure to assess the potential relevance of climate change flood risk, and if relevant, to take this risk into account when deciding whether to approve the development concept plan, rendered the original approval void. 

The case at first instance was heard by the Queensland Land and Resources Tribunal. This judgment is available at http://www.austlii.edu.au/au/cases/qld/QLRT/2007/33.html. The Tribunal’s judgment was appealed to the Queensland Supreme Court. The latter judgment is available at http://www.austlii.edu.au/au/cases/qld/QCA/2007/338.html. The following case summary is drawn from my forthcoming article on climate change law to be published by MULR.

The Xstrata case involved an environmental group objecting to the grant of governmental authorisations for new coal mines. President Koppenol of the Land and Resources Tribunal rejected the group’s claims and proposed greenhouse offset conditions, ruling that he was not satisfied:

“that that assumption (relevantly, a demonstrated causal link between this mine’s GHG emissions and any discernable harm – let alone any “serious environmental degradation” – caused by global warming and climate change) has been shown by QCC to be valid.”

In his reasoning, Koppenhol P strongly criticised the findings of the Stern Review and the Fourth Assessment Report of the Inter-governmental Panel on Climate Change, even going so far as to undertake a re-analysis of scientific conclusions on temperature increases over the last half-century. This was extraordinary given that the coal mining company concerned had not disputed the scientific evidence that anthropogenic GHG emissions contribute to global warming and climate change.

The Tribunal’s decision was subsequently appealed to the Queensland Court of Appeal largely on grounds of a failure to ensure procedural fairness. The Court of Appeal agreed that the Tribunal’s processes had denied natural justice to the applicant and ordered a re-hearing. However, that re-hearing never took place as the Queensland government intervened to pass special legislation authorising the mines, thereby by-passing the normal approval processes. 

The judgment in this case is available at:http://www.austlii.edu.au/au/cases/nsw/NSWLEC/2007/59.html.The following case summary is drawn from my forthcoming article on climate change law to be published in MULR.

At issue in the Taralga case was a proposed wind farm comprising 62 turbines. The proposal was opposed by local residents and landowners who objected to its potential amenity and environmental impacts, such as blighting of the landscape, aesthetic impacts, noise emissions, and flora and fauna impacts. The objectors brought a merits appeal against approval of the wind farm before the New South Wales Land and Environment Court, which reconsidered the original decision, including the relevance of principles of ecologically sustainable development (ESD) to the decision-making process.

Chief Justice Preston conceived of the dispute as requiring a weighing of the geographically narrower concerns raised by the objectors, versus the global effects of climate change, which the establishment of renewable energy facilities would help to ameliorate. In this respect, his Honour came down on the side of the “broader public good” represented by attempts to address the global problem, citing the principle of inter-generational equity as a key consideration. In particular, the attainment of inter-generational equity in the production of energy was said to involve a requirement:

“as far as is practicable, to increasingly substitute energy sources that result in less greenhouse gas emissions for energy sources that result in more greenhouse gas emissions, thereby reducing the cumulative and long-term effects caused by anthropogenic climate change. In this way, the present generation reduces the adverse consequences for future generations.”

The result was that the full project as originally planned was permitted to proceed. Nonetheless, the court noted that opposition to the proposal by those representing local interests had resulted in a better development with greater environmental protection. This included a condition providing a public ‘right to know’ as the development unfolded, together with a range of measures founded on the precautionary principle. The latter extended to adaptive strategies designed to respond to any occurrences of threats to flora or grasslands if subsequently discovered during construction of the wind farm.