Miners could run afoul of Queensland’s environmental protection laws if the burning of their export coal overseas were shown to negatively impact global carbon pollution, the state’s highest court has ruled.
But the court of appeal has dismissed a challenge to Gina Rinehart’s Alpha mine because of an earlier land court finding that it would “not detrimentally affect global greenhouse gas emissions” because Asian power stations would simply buy coal elsewhere if the mine were blocked.
The decision on Tuesday lumped conservation group Coast and Country with legal costs after escalating their fight against the proposed 30m tonne-a-year mine in the Galilee basin in the wake of unsuccessful challenges in the land court and the supreme court.
Coast and Country had applied for statutory review of the land court ruling upholding approval of an environmental authority for GVK Hancock.
The appeal court president, Margaret McMurdo, in a published judgment found that the land court “must consider” so-called scope 3 emissions from transporting and burning coal overseas when weighing up a mine’s environmental authority.
However the land court “made findings of fact that the proposed mining would not detrimentally affect global greenhouse gas emissions” and these were “not amenable to statutory review”, McMurdo said.
Jo-Anne Bragg, chief executive of the Queensland Environmental Defenders Office, which ran the case for Coast and Country, said their clients were disappointed.
“We all know that burning fossil fuels is contributing to global warming, extreme weather events and severe damage to our Great Barrier Reef. Every further approval locks in those impacts,” Bragg said.
A GVK Hancock spokesman said the ruling brought “an end to four years of legal challenges from anti-mining protesters and allows us to continue developing a project that will create thousands of jobs for our state”.
The miner in the land court had argued its contribution of 0.16% to global emissions through the burning of 30MT of coal a year was “negligible” but this was dismissed by the court.
Alpha is one of six Galilee basin mining proposals singled out last week in a climate advocacy report arguing they must be stopped if global warming is to be kept to 1.5C, the aspirational target of the Paris Agreement.
McMurdo said that under the “very broadly defined object of the Environmental Protection Act … environmental value and environmental harm are consistent with a desire to protect Queensland’s environment from development, including mining development, which would cause harmful global greenhouse gas emissions”.
The land court was obliged to consider criteria “consistent with a concern about harmful global greenhouse gas emissions which would not ‘enhance individual and community wellbeing and welfare by following a path of economic development that safeguards the welfare of future generations’; would not ‘provide for equity within and between generations’; could damage ‘biological diversity’ and ‘essential ecological processes and life support systems’; or could raise ‘threats of serious or irreversible environmental damage’”, she said.
Fellow appeal court justice Hugh Fraser noted “expert evidence” before the land court that power stations primarily in India and China would “burn the same amount of thermal coal and produce the same amount of greenhouse gases whether or not the proposed Alpha mine proceeded”.
“That was so because thermal coal was plentiful and cheaply available to the power stations from many sources,” Fraser said.
“It was the designed power generating capacity of the power stations, rather than the availability of coal, which determined the amount of coal which would be burned in the power stations.
“Accordingly, global scope 3 emissions would not fall if the mine did not proceed.”
That followed a supreme court ruling last September that the land court’s consideration that “environmental harm that might be caused by another coal mine somewhere else in the world” was relevant under state environmental laws.