A copy of the judgment in this case is available from http://www.austlii.edu.au/au/cases/cth/FCA/2006/736.html.
The following case summary is drawn from my article on climate change litigation published in vol. 24 of the EPLJ.
In the Wildlife Whitsunday case the proposals at issue involved two new Queensland coal mines where it was alleged by the environmental groups bringing the case that the result of burning of the harvested coal would be the production of significant quantities of greenhouse gas (GHG) emissions, thereby contributing to the problem of global warming.
The applicants in the case sought to challenge the decision by the federal Environment Minister regarding the necessity for an environmental impact assessment to be undertaken pursuant to the Environment Protection and Biodiversity Conservation Act. The EPBC Act’s EIA and approval requirements are only triggered where a project is likely to have significant impacts on designated “matters of national environmental significance” (MNES). While the MNES specified under the EPBC Act include many matters in respect of which the Commonwealth bears international treaty obligations, preventing climate change or limiting the emission of GHG is not among them. In order to trigger the EIA requirement under the EPBC Act for a project with potential GHG impacts, it is necessary to link the global warming issue in some way to MNES that are protected under the Act, such as world heritage areas. This was essentially the way the applicants’ case proceeded in the Wildlife Whitsunday case, with an argument being put forward that the burning of coal harvested from the mines would contribute to global warming, which could have substantial adverse impacts on the ecosystems of world heritage areas like the Great Barrier Reef. Hence it was argued that the climate change impacts of the proposed mines should have been taken into account by the Minister in determining whether the EPBC Act was applicable.
In the course of the case it emerged that a departmental delegate, Mr Flanigan, had in fact taken the greenhouse issue into account in his decision-making process as being amongst the possible “indirect” impacts of proposal, although he had determined that such impacts, as far they as related to the Great Barrier Reef, were speculative. Dowsett J of the Federal Court thus accepted that the matter of GHG emissions from the mining and burning of coal had been considered in the relevant decision not to require an EPBC Act-EIA for the mines, despite the paucity of reasons provided by the delegate in this regard.
The judge was dismissive of the other grounds of review raised by the applicants and critical of the lack of specific information provided as to how the project would have an impact on protected areas. In this regard, Dowsett J was sceptical of arguments concerning a causal link between coal mining activities and damage to ecosystems through climate change. This scepticism is evident in a pivotal paragraph of his judgment, where his Honour stated:
“I have proceeded upon the basis that greenhouse gas emissions consequent upon the burning of coal mined in one of these projects might arguably cause an impact upon a protected matter, which impact could be said to be an impact of the proposed action. I have adopted this approach because it appears to have been the approach adopted by Mr Flanigan. However I am far from satisfied that the burning of coal at some unidentified place in the world, the production of greenhouse gases from such combustion, its contribution towards global warming and the impact of global warming upon a protected matter, can be so described. The applicant’s concern is the possibility that at some unspecified future time, protected matters in Australia will be adversely and significantly affected by climate change of unidentified magnitude, such climate change having been caused by levels of greenhouse gases (derived from all sources) in the atmosphere. There has been no suggestion that the mining, transportation or burning of coal from either proposed mine would directly affect any such protected matter, nor was there any attempt to identify the extent (if any) to which emissions from such mining, transportation and burning might aggravate the greenhouse gas problem. The applicant’s case is really based upon the assertion that greenhouse gas emission is bad, and that the Australian government should do whatever it can to stop it including, one assumes, banning new coal mines in Australia.”