Major court blow for environmentalists after federal court rules against climate change

New coal and gas projects can be approved without the Environment Minister needing to consider climate harm, a court has ruled.

Federal Environment Minister Tanya Plibersek. Picture: Keryn Stevens

New coal and gas projects in Australia can be approved without taking into account the environmental impact of emissions, a court has found, igniting tensions with climate change groups.

The full bench of the Federal Court has ruled it is not the Environment Minister’s job to protect the environment from climate harm after a landmark case was dismissed on Thursday.

The Environment Council of Central Queensland took Tanya Plibersek and two big coal companies to court in 2023 for “failing to protect our environment from climate harm from new coal and gas projects”.

That case, nicknamed ‘living wonders’, was dismissed last October, but the Environment Council appealed the decision to the full bench of the Federal Court. The court on Wednesday unanimously rejected the appeal.

The original case was the first legal action against coal or gas projects that Ms Plibersek faced as environment minister, and related to MACH Energy’s application to extend its Mount Pleasant mine in NSW until 2048 and Whitehaven Coal’s application to extend its Narrabri underground mine, also in NSW, until 2044.

The decision lands at a critical time for the Albanese government after a deal with the Greens on Thursday saw it back pedal on fast-tracking approvals for offshore gas projects. That followed the launch of its future gas strategy a week ago which backed development of the fossil fuel for Australia to hit its net zero emission goals.

Federal Environment Minister Tanya Plibersek in parliament. Picture: Tracey Nearmy/Getty Images

In dismissing the appeal, the court found under current environment laws the minister was not legally required to assess risk to the environment or climate harm of coal mine expansions.

However, the court noted the case highlighted how the current Environment Protection and Biodiversity Conservation Act was “ill-suited”.

“The arguments on this appeal do underscore the ill-suitedness of the present legislative scheme of the EPBC Act to the assessment of environmental threats such as climate change and global warming and their impacts on matters of national environmental significance in Australia,” the court said in its 59-page judgment.

The mining projects are not approved yet, but the court’s decision paves the way for development.

Environmental activists hold a protest rally in front of Kirribilli House, the official residence of the Australian Prime Minister, in Sydney on May 8. Picture: Saeed Khan/AFP

Whitehaven Coal said the judgment now meant the minister could make a final determination about the Narrabri Stage 3 expansion.

“Today’s judgement clears the way for a project that is expected to extend the life of the mine from 2031 to 2044, support around 500 continuing jobs in regional NSW and entail a significant economic benefit to the State,” the company said.

A spokesperson for the Department of Climate Change, Energy, the Environment and Water said it was considering the court judgement in detail.

“As the matter remains before the Full Court of the Federal Court of Australia, the department will not comment further,” the spokesperson said.

Responding to the case outside of court, Environment Council volunteer Ashleigh Wyles said it was “devastated and heartbroken” by the decision.

“We fear this will open the floodgate for the minister to now approve dozens of new coal and gas projects on her desk,” Ms Wyles said.

“The Environment Minister’s one job is to protect our environment, but instead of standing up to fossil fuel companies, we saw her stand alongside them in court and defend her refusal to act on the harm of coal and gas.”

The Environment Council said Ms Plibersek’s refusal to act on the climate risks was “irrational, illogical and unlawful”.

Environmental Justice Australia CEO Elizabeth McKinnon said the country’s environmental laws were broken.

“Our laws are failing to keep up with the climate crisis – they are failing to protect the iconic places, plants and animals of this country from the devastation of climate change,” Ms McKinnon said.

A previous legal challenge to the Narrabri expansion, lodged by community group Bushfire survivors for Climate Action, was thrown out by the NSW Supreme Court in July 2023.

Originally published as Major court blow for environmentalists after federal court rules against climate change