Back in 1999, the Environment Protection and Biodiversity Conservation Act (EPBC Act) was enacted (in brief) to protect the flora, fauna, ecological communities and heritage places of Australia. A significant sub-goal of the Act is to promote ecologically sustainable development (ESD) through the conservation and ecologically sustainable use of natural resources. Under this Act, a person must not take an action that has, will have or is likely to have a significant impact on any of the matters of environmental significance without approval from the Australian Government Minister for the Environment, Heritage and the Arts. An action can be a project, a development, an undertaking, an activity or a series of activities, or an alteration of any of these things.

Several court cases have been filed under this Act. I recently learnt of two such cases:

1. The Anvil Hill case: Gray v Minister for Planning and Others (New South Wales Land and Environment Court, 2006)
   
2. The Whitsunday case: Wildlife Preservation Society of Queensland Proserpine/Whitsunday Branch Inc v Minister for the Environment and Heritage and Others (Federal Court, 2005-2006)

The Anvil Hill case

In this case, the Applicant Peter Gray, a 26 year-old member of the community organisation Rising Tide, challenged the validity of the decision made by the New South Wales Director General of Planning ('DG') to accept for public display the environmental assessment (EA) prepared by Centennial Coal Company Limited (‘Centennial’) regarding the Anvil Hill mine (‘the Project’). Peter Gray presented two arguments:

1. Centennial did not include an assessment of the impacts of burning the coal on the environment, so the EA failed to comply with the direction from the DG in the EA requirements to include a ‘detailed greenhouse gas assessment’.
2. In deciding that the assessment complied with the EA requirements, the DG failed to take into account the ESD principles, and that this was not allowed under the Act because ESD principles were included in the objects of the Act.

The First Respondent, the DG, defended that Part 3A projects do not require an EA because the word ‘may’ implies that the preparation of such an assessment by the proponent is at the DG’s discretion.

On 27 November 2006, Justice Nicola Pain handed down her decision in favour of the applicant, on the ground that the DG had failed to take ESD principles into account in his decision to accept the EA. Pain J agreed with the DG that the content of an environmental assessment is subject to his discretion in establishing the EA requirements.However, she disagreed that the DG could accept an environmental assessment for public exhibition without it adequately addressing the EA requirements.She also decided that the DG’s discretion must be exercised ‘in accordance with the objects of the Act which includes the encouragement of ESD principles’.

The Anvil Hill decision sets a precedent for the Australian judiciary to become more willing to impose rigorous environmental assessment standards on projects with significant climate change impacts.

The Whitsunday case

Wildlife Whitsunday is a conservation group in North Queensland. In this case, the Applicant Wildlife Whitsunday, sought review under the Administrative Decisions (Judicial Review) Act 1977 of two decisions of a delegate of the minister pursuant to s 75 of the Environment Protection and Biodiversity Conservation Act 1999. The Applicant expressed concerns regarding impact on particular threatened species and greenhouse gas emissions arising both from the extraction process and the eventual burning of the extracted coal from the Isaac Plains Coal Project and the Sonoma Coal Project. Note the two mines account for roughly 25% of Australia’s national greenhouse emissions in a single year.

Other concerns include the World Heritage Areas, specifically the Great Barrier Reef World Heritage Area and the Wet Tropics Heritage Area. The Applicant urged consideration of the fact that over the proposed 9-year life of the mine, 18 million tonnes of coal would be won and exported. The Applicant asserted that the ultimate purpose was to burn such coal in power generation and that will have a detrimental effect on the World Heritage Areas.

Among the counter-arguments provided by the Delegate Mr Flanigan, one goes as follows. Given the nature and location of the mine, significant impacts on the heritage values of the Great Barrier Reef World Heritage Area or on the ecological character of the Shoalwater and Corio Bays Ramsar site are not likely. The mine area is within the catchment of the Isaac River, which flows south into the sea at Rockhampton (a distance of about 300 kms). The nature of any indirect impacts on world heritage values or the ecological character of a Ramsar site associated with the mine are speculative.

In the end, Justice Dowsett dismissed the case. While the outcome indicates that there is no effective mechanism in the EPBC Act for regulating even large emissions of greenhouse gases at the present time, this is an issue that is likely to see further litigation and legislative action in the future.

For references, see attachments.