The recent Anvil Hill case addressed the question of assessing greenhouse gas (hereafter GHG) emissions when mining applications are considered in Australia.
20 September 2007, the Federal Court of Australian, by Justice Margaret Stone, dismissed an application by environmental group Anvil Hill Project Watch Association. Concern was raised with respect to the mine’s possible contribution to climate change (Anvil Hill Project Watch Inc v Minister for the Environment and Water Resources [2007] FCA 1480).
Environmental Group Claimed Mine Was Not a “Controlled Action”
The proceedings arose from an application by Centennial Hunter Pty. Limited to construct an open-cut coal mine in NSW’s upper Hunter Valley. The proposed project became known as the “Anvil Hill Project”.
A delegate of Federal Minister for Environment and Water Resources Malcolm Turnbull decided, in February 2007, that the project was not a “controlled action” within the meaning of section 67 of the Environment Protection and Biodiversity Act 1999 (Cth) (EPBA). This decision meant that the project could proceed without any further approval being required.
The environmental watch group challenged the way the delegate dealt with issues regarding the adverse impact of greenhouse gas emissions arising from the mine in an application filed in May 2007 under section 5 of the Administrative Decisions (Judicial Review) Act 1977 (Cth) for an order to review the decision. In particular, they argued that the delegate erred in looking for a “measurable or identifiable increase in the global atmospheric temperature or other greenhouse gas impacts” emanating from mine emissions.
Federal Court Dismisses application
Justice Stone, in dismissing the application, said the delegate did not err in his determination that the mine was a “controlled action”
“Without going into detail it is sufficient to say that these assessments involve closer scrutiny of the proposal than is required to that point,” Justice Stone said. “The Minister must also balance the negative effect of the proposed action against any positive benefits the proposal may have.”
He added that the Environment Protection and Biodiversity Act not prescribe clear criteria by which the Minister can evaluate the substantiality or significance of an impact, such as greenhouse gasses, on matters protected by the EPBA.
Environmental Group Calls for Review of Legislation
In a statement on 21 September 2007, AHPWA president, Christine Phelps expressed the groups disappointment. “It is outrageous in today’s world and scientific knowledge that a coalmine does not automatically trigger the EPBC Act. It is an environmental protection Act and already recognises anthropogenic climate change as a key threatening process and a major cause of habitat loss.”
Ms Phelps went on to say that the decision demonstrated the inadequacy of current legislation and said the case highlighted an “urgent” need for changes. She said that the AHPWA is yet to decide on appealing the decision.
“At a time of looming federal elections it will be interesting to see how the major parties respond to this decision,” she said.