Australia

Hunter Environment Lobby Inc. v. Minister for Planning (New South Wales Court of Appeal, 2011)

Jurisdiction: Australia


Side A: Hunter Community Environment Centre Inc. (Ngo)


Side B: Minister for Planning and Delta Electricity (Government)


Core objectives: Challenge to conditions imposed on approval of a coal mine


Summary
The case relates to the approval of diverse extensions of a coalmine, leading to an increase of annual production of up to 20 million tones of coal. The Hunter Environment Lobby objected to the proposal, notably on the ground that the extensions would have an important impact on climate change. Nevertheless, the project was approved by the Planning Minister in November 2010 and the Hunter Environment Lobby appealed. In its decision, the Court distinguished between direct GHG emissions (Scope 1 GHG emissions) and indirect GHG emissions (Scope 2 GHG emissions), i.e. emissions from the consumption of purchased electricity. With respect to direct emissions, the Court held that it was lawful and reasonably implementable to take them into account in the approval process. The Court further highlighted that it was not discriminatory to do so as upcoming approvals would follow the same rule. However, the Court refused to impose any condition with respect to indirect emissions. The Court thus affirmed the approval, but subject to certain conditions, including a condition which required the offset of any direct GHG emissions from the mine. This condition could be suspended if another law or regulation was introduced which would cover these emissions. Following this initial decision, the Australian Government introduced a carbon price, which was implemented through federal legislation. In light of this new scheme, in a subsequent decision the Court held that it was valid for the Minister to decide that the condition on the mine relating to offsetting of direct emissions was no longer necessary.
Case documents

from the Grantham Research Institute
from the Grantham Research Institute
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