Tanya Plibersek doesn’t have to consider climate change when approving coal mines

The Federal Court has rejected a legal challenge against federal Environment Minister Tanya Plibersek’s assessment of two coal projects, after the community group that launched the court action argued the minister’s refusal to assess their climate harm was unlawful.

Plibersek and two coal mining companies were taken to court by the Environment Council of Central Queensland, which claimed they had failed to protect “living wonders” such as the Great Barrier Reef from climate change.

Environment Minister Tanya Plibersek holds a wombat during a Threatened Species Day in September.Credit: Alex Ellinghausen

It was the first court challenge to Plibersek over the assessment of a fossil-fuel project. It centred 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. Plibersek has not yet made a decision on either project.

The council, which was represented in court by Environment Justice Australia, argued that when Plibersek rejected its request to consider the climate harm from the coal projects, she failed to factor in scientific evidence that human-induced climate change was causing profound harm to matters of national environmental significance.

But Federal Court Justice Shaun McElwaine rejected this argument on Wednesday.

“I have concluded none of the review grounds are made out, and each proceeding must be dismissed,” McElwaine said.

However, he said the case posed a question for federal parliament over whether the environment minister should be compelled to consider the harm from polluting projects.

“Ultimately, the applicants’ arguments, anchored by the extensive scientific material relied on, raise matters for parliament to consider whether the minister’s powers must be exercised to explicitly consider the anthropogenic effects of climate change in the manner the applicant submits they must,” he said.

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

She rejected the council’s request to assess the climate harm from coal projects in three instances: Mach Energy’s application to expand its Mount Pleasant open-cut mine, Whitehaven’s application to expand its Narrabri underground mine, both in NSW, and the Ensham coal mine extension in Queensland.

McElwaine said the applicant provided detailed documents to the minister about the effects of greenhouse gas emissions. The minister did not dispute that many matters of national significance would be affected by climate change, or that cuts to anthropogenic emissions were needed, he said.

A spokesperson for Plibersek said the minister was considering the implications of the judgment, adding that she had not made a determination on the projects in question.

“Our strong new climate safeguard laws, developed with the Greens party and independents, mean that coal and gas projects must comply with Australia’s commitment to net zero,” the spokesperson said.

Environment Council president Christine Carlisle said her organisation was “bitterly disappointed” but respected the court’s decision. She said it strengthened their resolve to continue fighting fossil-fuel development.

“I’m alarmed that under our law as it currently stands, it is somehow not the job of the environment minister to protect the environment from the biggest threat of all, which is climate change from coal and gas,” Carlisle said.

Four coal projects have been approved under the Labor government since May 2022. The Environment Council’s legal challenge is a sign of the political pressure mounting against Plibersek and the Albanese government, which campaigned heavily on its promise of more ambitious climate action in last year’s election.

Influential grassroots organisation Labor Environment Action Network is also calling for the federal government’s promised reforms of environment laws to include assessment of the climate impacts of major projects, including coal mines.

Thermal coal, a major export commodity that is burned for domestic electricity generation, is a significant source of the nation’s greenhouse emissions.

The Greens are demanding Labor insert a so-called “climate trigger” in the Environment Protection and Biodiversity Conservation Act, which would force the government to assess the contribution of all fossil-fuel projects to global warming.

Greens environment spokesperson Sarah Hanson-Young said Plibersek should have sided with the Environment Council and accused her of “teaming up” with fossil-fuel industries.

“Australians voted for climate action at the last election, but every time the government fights to approve a coal or gas project they are putting Australia at risk of more frequent and extreme bushfires this summer,” Hanson-Young said.

A shock decision from the Federal Court last month highlights the increasing challenges to fossil-fuels projects by activists. Australia’s most prospective new gas export project was halted after the Federal Court ruling in September that proponent Woodside had not properly consulted traditional owners over its plans to conduct seismic testing at its offshore Scarborough gas field.

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