Exporting coal, owning the damage: A legal reckoning arrives for Australian mining

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.

At first blush, the ruling is far more narrow than that. The court found that under NSW planning law, miners have to account for the climate damage done by their 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.

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.

If this is the case, then mines in other states should not be affected. So far. 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.

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.

“The High Court is the High Court,” says Higginson. “It surpasses any environment courts, any tribunals and, of course, any of the states’ supreme 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.”

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. 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”.

But this case does not come in 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. According to Peel, there are more than 3600 climate cases either already adjudicated or pending in various jurisdictions around the world. Many of them, including the case just decided by the High Court, make reference to the ICJ opinion.

The US Supreme Court is now hearing arguments in another blockbuster climate 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.

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.

This surge of litigation is no coincidence, but a reflection of a set of facts that is becoming harder to ignore. 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.

At the same time attribution science – experts’ ability to attribute climate disasters to carbon pollution from specific fossil fuel projects – is rapidly improving.

Just last month the University of NSW launched a new open-source climate tool – the Carbon Impacts Tracer – to do just 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.

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.

The Mount Pleasant coal mine expansion case decided by the High Court of Australia involved an estimated 859 million tonnes of scope three 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.

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.

“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.

Higginson believes we are at a crossroads. “We are literally at the confluence of law, science, community expectation, morality, and survival – we’re here.”

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Nick O'Malley is National Environment and Climate Editor for The Sydney Morning Herald and The Age. He is also a senior writer and a former US correspondent.Connect via email.