The decision by the High Court that NSW coal mines must account for the emissions caused by the product when burnt overseas is “a game changer” for coal production across the country, says Professor Jacqueline Peel, an international climate law expert with the University of Melbourne.
asserted
Peel → account → Melbourne
The court found that under NSW planning law, miners have to account for the climate damage done by their pollution.
asserted
miners → find → pollution
In the past, this has been interpreted to focus on what are known as “scope one” emissions – that is, pollution created in NSW in the process of digging the stuff up.
asserted
that → interpret → stuff
Now the High Court has found that under NSW planning law, miners must also account for “scope three” emissions – the pollution created when the coal is burnt by their overseas customers – and decision-makers have to consider whether measures are needed to mitigate these emissions.
asserted
measures → find → emissions
If this is the case, then mines in other states should not be affected.
asserted
mines → affect → states
But as Sue Higginson, a NSW Greens MP and veteran environment lawyer, says you can bet that there are climate activists closely reading planning rules in other states to see if they can take down polluting mines around the country.
asserted
they → say → country
Of course, governments can legislate to change their planning laws and regulations to protect the industry, but over time this will come at increasing political cost.
asserted
this → legislate → cost
“The High Court is the High Court,” says Higginson.
asserted
Higginson → say → ?
“It surpasses any environment courts, any tribunals and, of course, any of the states’ supreme courts.
asserted
It → surpass → courts
“When governments do things like that, and act outside and above the environmental rule of law when it’s been dictated and determined by the High Court, that is significant risk to democracy.”
asserted
that → do → democracy
Nonetheless, governments have done this in the past, and it is hard to imagine an Australian government would allow a court decision to kill off a major industry.
asserted
decision → do → industry
The federal opposition and mining groups are already calling for the NSW and federal governments to introduce legislation to protect it from what the industry calls “lawfare”.
asserted
industry → call → what
But this case does not come in isolation.
asserted
case → come → isolation
Last year the International Court of Justice issued a landmark advisory opinion establishing that governments have a legal duty under international and human rights law to protect the climate system.
asserted
governments → issue → system
Many of them, including the case just decided by the High Court, make reference to the ICJ opinion.
asserted
Many → include → opinion
The US Supreme Court is now hearing arguments in another blockbuster climate case.
asserted
Court → hear → case
There, Suncor Energy and ExxonMobil are arguing that federal law prevents state courts from hearing a case brought by local officials demanding that they be forced to help pay for climate damage.
asserted
they → argue → damage
Higginson believes the High Court decision could have an immediate impact on the NSW Independent Planning Commission’s approval last month of the Hunter Valley Operations Continuation Project to extend the life of the HVO North and HVO South coal mines, which could create 793.8 million tonnes of scope three emissions.
uncertain
which → believe → emissions
This surge of litigation is no coincidence, but a reflection of a set of facts that is becoming harder to ignore.
asserted
that → become → facts
The cost and human toll of climate change is no longer a future fear but an immediate fact confronting communities and nations around the world.
asserted
cost → confront → world
At the same time attribution science – experts’ ability to attribute climate disasters to carbon pollution from specific fossil fuel projects – is rapidly improving.
asserted
science → attribute → projects
Just last month the University of NSW launched a new open-source climate tool – the Carbon Impacts Tracer – to do just that.
asserted
University → launch → that
It harnessed research published by experts from six universities in Australia and the United Kingdom on the damage that corresponds with emissions from the newly approved Scarborough gas project in Western Australia.
asserted
that → harness → Australia
It found that 876 million tonnes of CO₂ emissions from the Scarborough project would expose an extra 516,000 people worldwide to unprecedented heat, resulting in 484 heat-related deaths in Europe by 2100 and destroying millions more coral colonies during every future mass bleaching on the Great Barrier Reef.
asserted
tonnes → find → Reef
The Mount Pleasant coal mine expansion case decided by the High Court of Australia involved an estimated 859 million tonnes of scope three emissions.
asserted
case → decide → emissions
Even if the NSW or federal government steps in to change laws to protect the Mount Pleasant mine, or mining in Australia more broadly, the cases are going to keep coming as climate damage becomes more lethal and costly, and the science proving the impacts steadily improves.
asserted
science → step → impacts
Given that our legal system is based on the notion that those injured should be able to seek remedy from those who injure, industries and governments causing climate damage cannot expect that they will be allowed to endlessly duck responsibility.
asserted
they → give → responsibility
“Eventually, if there’s lots of these cases coming at different angles, then they may overwhelm the efforts trying to shut them down through legislation,” says Peel.
uncertain
Peel → ’ → legislation
Higginson believes we are at a crossroads.
asserted
we → believe → crossroads
“We are literally at the confluence of law, science, community expectation, morality, and survival – we’re here.”
asserted
we → ’re → law
Get to the heart of what’s happening with climate change and the environment.
asserted
what → get → change
The Aporia
