Plibersek accused of failing to protect environment as case against her coal decisions begins

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Environment Minister Tanya Plibersek and two coal mining companies have been taken to court by a non-profit environment group that argues they have failed to protect “living wonders” such as the Great Barrier Reef from climate change.

The Environment Council of Central Queensland began outlining its case in the Federal Court in Melbourne on Monday, asking Justice Shaun McElwaine to consider whether Plibersek’s refusal to assess the climate harm of two proposed coal mines in NSW was lawful.

Minister for the Environment and Water Tanya Plibersek.Credit: Alex Ellinghausen

It is the first court challenge to a coal or gas decision made by the current environment minister and the outcome could affect all pending coal and gas projects. The two coal-mining companies, Narrabri Coal, a subsidiary of Whitehaven, and MACH Energy, have joined the litigation.

The case centres on Whitehaven’s plan to extend underground mining at the Narrabri thermal coal mine until 2044 and MACH Energy’s plan to expand open-cut thermal coal mining at Mount Pleasant in the Hunter Valley until almost 2050. Thermal coal is used for electricity production.

“The material before the minister and the court includes the products of the IPCC [Intergovernmental Panel on Climate Change], which summarises the work of the global scientific community,” said the lawyer for the environment council, Emrys Nekvapil SC.

“It also includes the IEA [International Energy Agency] scenario that models a possible pathway for net-zero by 2050 – that pathway has no new coal approvals.”

Environment Council of Central Queensland president Christine Carlisle, left, and Environmental Justice Australia lawyer Retta Berryman have launched legal action against Tanya Plibersek.Credit: Eddie Jim

Under national environment laws, the environment minister has veto powers over major projects that will affect matters of national environmental significance, such as water resources or threatened species.

The legal challenge is a sign of the political pressure mounting on Plibersek and the Albanese government, which promised more ambitious climate action during last year’s election campaign.

There has been a national and global increase in climate matters being taken to court, with a 2022 global snapshot finding the cumulative number of climate-related cases has more than doubled since 2015. Australia is a climate-litigation hotspot – a recent report from the UN Environment Programme found 127 climate lawsuits in Australia, second only to the US in the number of cases.

Last week, the most comprehensive stocktake of climate action made by the UN to date found global emissions were not in line with the 1.5-degree temperature goals of the 2015 Paris Agreement and meeting these targets will require phasing out all unabated fossil fuels.

The most recent UN report on global climate progress said the only way to stay with 1.5 degrees was phased out unabated fossil fuels.Credit: Peter Braig

Nakvapil told the court that Plibersek, who was not in attendance, had failed to consider the “precautionary principle” in her decision-making. This principle is a cornerstone of environmental law and means decisions must be guided by careful evaluation to avoid, wherever practicable, serious or irreversible damage to the environment.

In her reasons for not refusing to extend the Narrabri mine, Plibersek said she was not satisfied it was likely to result in a net increase to green house gas emissions or affect the extent to which the values of World Heritage properties will be impacted by the physical effects of climate change.

The environment department’s 2022 State of the Environment report found human-induced climate change is causing profound harm to matters of national environmental significance.

Last November, environment officials agreed to re-examine 18 proposed new coal and gas projects after the council submitted requests to have the effects of climate change considered. This week’s case is related to two of these projects. Five coal and gas proposals have since been either withdrawn by proponents or effectively shelved, and 11 remain before the minister.

Plibersek has approved four coal projects this year: the Gregory Crinum Coal Mine in the Bowen Basin, the Isaac River Coal Mine, the Star Coal Mine, and the Ensham Coal Mine.

Plibersek’s office declined to comment on the case for legal reasons.

The court case continues.

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