This is climate litigation writ large -- Gloucester Victory

The nascent field of climate litigation in Australia came of age on Friday. The Chief Judge of the NSW Land and Environment Court, Brian Preston, delivered a landmark judgment refusing to approve a new coal mine because of its impacts on climate change. In the Chief Judge’s words, the mine proposal was in the wrong place at the wrong time.

When we first argued that our client, the Groundswell Gloucester, should be a party to this case and put a climate-change ground before the court, the mining companies thought it a laughable proposition, and said it would be “a sideshow”. As it happens, climate change became the main event in this court, as it is elsewhere.

The ramifications are likely to ripple out across Australia and possibly the world. This is climate litigation writ large.

The Chief Judge refused the Rocky Hill Coal Project,  near the mid-north coast town of Gloucester, on a range of grounds, all of which are important, but what his judgment says about climate change is of greatest significance. The court accepted the evidence put by Professor Will Steffen about the global carbon budget – that is, there is a limit on the amount of fossil fuels that can be burnt if we are to meet the Paris Agreement targets and avoid dangerous climate change.

The challenge of remaining within the global carbon budget presents a major barrier for new fossil fuel developments. They must overcome what we characterise as the Chief Judge’s “wrong time test”. To pass that test, a fossil fuel proponent must now establish why their project should be allowed to proceed at this time in history, when it is clearly recognised that there is an urgent need for rapid and deep decreases in greenhouse gas emissions. To achieve this, most fossil fuel reserves need to remain in the ground unburned.

The Rocky Hill project failed this test. It failed because its impacts on climate change were adjudged to be unsuitable at this time. It failed notwithstanding it was a relatively small project, with comparatively fewer emissions, and one proposing to mine coking coal for steel making rather than the more frequently discussed thermal coal for energy. That would indicate that future fossil-fuel projects, which are either larger, produce more emissions, or seek to generate fuel for energy rather than steel making, face an even steeper challenge in passing the “wrong time test”.

In the Rocky Hill case, the mining company put forward four arguments as to why its project should be allowed to pass the “wrong time test”. First, the emissions could theoretically be offset by alternate mitigation measures at some point in the future. The court rejected this as speculative and hypothetical.

Second, it argued refusal of the project was not the most cost-efficient way to meet the global carbon budget. This was rejected, as it is not the court’s role to determine the least-cost way of achieving global emissions reduction (as an aside, that is the role of leadership and policy – in which we are sadly lacking).

Third, the company mounted, effectively, the drug dealer’s defence: if we don’t mine it here, they’ll mine it somewhere else. This was rejected because there is “no inevitability that developing countries … will instead approve a new coking coal mine … rather than following Australia’s lead to refuse a new coal mine”.

Fourth, the company argued the mine was necessary for the steel production industry. This was rejected on the basis that the mine is not in fact necessary to maintain worldwide steel production and therefore its impacts on climate change could not be justified.

These arguments are standard fare for fossil fuel companies. Until Friday, they had proven incredibly successful in frustrating attempts to address the cumulative impacts of multiple smaller projects on global climate change. The companies’ success had been enabled by policy settings that create no meaningful nexus between our international commitments to emissions reductions, and the approval of fossil fuel projects at a local level, where those emissions are actually produced.

Now the Land and Environment Court’s most senior judge has accepted the causal link between a project’s contribution to cumulative greenhouse gas emissions and global climate change. That, in and of itself, is a matter of great importance.

In one sense this case says the starting point for a new fossil fuel project is “no” because of climate change. A fossil fuel development may argue its unique circumstances justify approval, but it must do so in light of climate change science telling us that there are already sufficient fossil fuel projects approved to exceed the target limit agreed in Paris of a 1.5C rise on the pre-industrial global average  temperature.

We suspect we are only beginning to understand how profoundly influential this judgment will be on the legal landscape in Australia. This won’t be the last project consigned to the dust-bin of history on the grounds of climate change. It is just the first.

David Morris is  CEO of the NSW Environmental Defenders Office and Brendan Dobbie is its acting principal lawyer.