Government vows to fight historic coal mine ruling

Federal Court case triggered by a group of eight high school students may have major implications for large-scale fossil fuel projects.

Environment Minister Sussan Ley has instructed the department to lodge a notice of appeal. Picture: Getty

The federal government has vowed to fight a historic Federal Court judgment which ruled that harm towards children from carbon emissions must be taken into account when the Environment Minister considers coal mine expansions.

The ruling – which could pose legal roadblocks for future fossil fuel projects- centred on Whitehaven Coal’s plans to expand its Vickery mine in northwestern New South Wales. On Thursday, Justice Mordecai Bromberg declared Environment Minister Sussan Ley had a “duty to take reasonable care” to ensure children were not harmed or killed by carbon emissions in her decision to approve the coal mine expansion.

The Vickery coal mine extension project has been approved by the NSW Independent Planning Commission but is yet to be given the green light by Ms Ley.

On Friday Ms Ley, who had been ordered to pay all legal costs, confirmed she had ordered the Environment Department to lodge a notice of appeal.

“After carefully considering the Judgement, the minister has formed the view there are grounds on which to appeal,” a statement said.

Lawyer David Barnden, who represented the teenagers, said his team would “vigorously defend” the rights of children to not suffer harm from climate change at the hands of the federal government.

“The ruling gives children hope for the future and it essentially has brought the science into the courtroom and gives the minister a road map to do her job in accordance with society’s expectations. It’s a really important decision to uphold,” he told The Weekend Australian.

“It is a duty about life and death and in Justice Bromberg’s reasons he refers to the likely intention of parliament to enable decision makers to take into account matters of life and death when making decisions under legislation. It’s a bold move on the minister’s part to push back against such a sensible duty.”

Mr Barnden said on Friday afternoon he had not yet seen a notice of appeal or the arguments that Ms Ley would be put forward.

Environmental group Lock the Gate Alliance, which campaigned against the coal mine expansion, said the government should reset its “clear policy failures” on climate change rather than use taxpayer dollars to fight the decision.

The group’s NSW co-ordinator Georgina Woods said the government would be “defending the indefensible” by appealing the decision.

“It would be extraordinary if Environment Minister Sussan Ley intends to argue that the government doesn’t have a duty of care to protect children from harm inflicted by decisions she makes,” she said.

In May Justice Bromberg handed down an initial judgment and refused to grant an injunction to block Ms Ley from approving the expansion. But his judgment found that Ms Ley had a common law duty to take “reasonable care” to protect children from climate change when making decisions under the Environment Protection and Biodiversity Conservation (EPBC) Act. Justice Bromberg said the potential harm to children from climate change could be “catastrophic” if global average surface temperature rose three degrees Celsius beyond the pre-industrial level.

Thursday’s judgment, made following further submissions, specifically stated the duty of care related to harm from “emissions of carbon dioxide into the Earth’s atmosphere”.

Following Justice Bromberg’s May decision, Whitehaven said it looked forward to the project being granted approval under the Environment Protection and Biodiversity Conservation Act.

The Morrison government is currently trying to win over crossbench Senate support for its proposed overhaul of the EPBC ACT, which involves gives greater powers to the states in approving developments.