Court win for Whitehaven’s Vickery mine but Sussan Ley ‘has duty of care’ on climate change
A Federal Court judge found Environment Minister Sussan Ley has a ‘duty of care’ to protect the environment from the impacts of climate change.
Environmental campaigners have failed to convince the Federal Court to stop the approval of Whitehaven Coal’s Vickery mine on the basis it would harm future generations, but a Federal Court judge found Environment Minister Sussan Ley does have a “duty of care” to protect the environment from the impacts of climate change.
The action, brought by Catholic nun Sister Brigid Arthur on behalf of a group of eight schoolchildren, argued the Federal Court should intervene to prevent the development of Whitehaven’s Vickery mine in NSW because coal produced at the mine would exacerbate climate change and cause them serious harm if it were approved.
Judge Mordy Bromberg found the group had not established “that the extent of the restraint they seek is justified” and refused to issue an injunction preventing the approval of the mine.
But in a decision hailed as a landmark by environment groups, Justice Bromberg found Ms Ley “has a duty of care to take reasonable care not to cause the children personal injury when exercising her power” under the Environment Protection and Biodiversity Conservation Act.
“The directly relevant risks of harm are confined to personal injury as they must be because, as stated earlier, the scope of the recognisable duty of care cannot, in this case, extend beyond personal injury,” Justice Bromberg’s decision said.
The decision allows Ms Ley to consider whether to approve the 10 million-tonne-a-year mine, put on the backburner by Whitehaven this year until at least 2022 amid low coal prices as it looks to pay down debt and get on top of operational issues elsewhere in its portfolio.
Whitehaven welcomed the decision on Thursday, saying it looked forward to receiving the final approvals for the project.
“Our consistent position has been that this legal claim was without merit. The company sees a continuing role for high-quality coal in contributing to global CO2 emissions reduction efforts while simultaneously supporting economic development in our near region,” the company said.
“There is strong market demand for the high-quality product of the type Vickery will produce.
“Major employment-generating investments in the economy will be essential as the Australian economy continues to recover from the impacts of COVID-19. It is critical there is confidence in the integrity of Australia’s robust environmental approvals framework.”
Whitehaven has approval to mine 4.5 million tonnes a year from Vickery, which is yet to be built, but is seeking permission for output of up to 10 million tonnes a year.
Justice Bromberg said it was clear that burning coal from Vickery was likely to cause a “tiny but measurable” increase in global warming. “In my assessment, that risk is ‘real’, meaning that it may be remote but it is not far-fetched or fanciful,” he said.
“Those potential harms may fairly be described as catastrophic, particularly should global average surface temperatures rise to and exceed three degrees Celsius beyond the pre-industrial level.
“The evidence therefore establishes an essential precondition for the law of negligence to recognise a duty of care owed by the minister to each of the children.”
Whitehaven shares closed up 3c, or 2 per cent, at $1.53.
More Coverage
