FEDERAL COURT OF AUSTRALIA
Australian Conservation Foundation Incorporated v Minister for the Environment [2016] FCA 1042
File number: QUD 1017 of 2015 Judge: GRIFFITHS J Date of judgment: 29 August 2016 Catchwords: ADMINISTRATIVE LAW - judicial review challenge to Minister’s decision to approve coal mine project – failure to apply ss 82 and 527E of the Environmental Protection and Biodiversity Conservation Act 1999 (Cth) (the EPBC Act) in assessing impact of combustion emissions – failure to apply the precautionary principle as required by ss 136(2)(a) and 391 of the EPBC Act – failure to comply with s 137 of the EPBC Act regarding inconsistency with the World Heritage Convention – judicial review application dismissed.
ENVIRONMENTAL LAW – construction and application of ss 82, 133, 136, 137, 391 and 527E of the EPBC Act in assessing effects of climate change on the Great Barrier Reef.
Legislation: Administrative Decisions (Judicial Review) Act 1977 (Cth)
Environment and Heritage Legislation Amendment Act (No 1) 2006 (No 165 of 2006) (Cth)
Environmental Planning and Assessment Act 1979 (NSW)
Environment Protection and Biodiversity Conservation Act 1999 (Cth), Div 1, Ch 4, Pts 3, 8, 9, 16, 23, ss 3, 3(1)(a), 3(1)(b), 3(1)(e), 3(2)(a), 3(2)(c), 3(2)(d), 3A, 12, 15A, 15B, 15C, 16, 17B, 18, 18A, 20, 20A, 24B, 24C, 24D, 24E, 45, 47, 67, 68(1), 75, 75(1), 75(2), 75(3), 75(4), 81, 82, 82(1), 83, 130, 130(1), 131, 131A, 131AB, 132, 133, 134, 136, 136(2)(a), 136(2)(b), 136(2)(c), 136(2)(e), 137, 137(1), 140A, 391, 391(1), 391(2), 391(3), 523, 527E, 527E(1), 527E(1)(b), 527E(2), 527E(2)(e), 527E(2)(f), 527E(2)(g), 528
Environment Protection and Biodiversity Conservation Amendment Act 2013 (Cth)
Judiciary Act 1903 (Cth), s 39B
Motor Accidents Compensation Act 1999 (NSW)
National Greenhouse and Energy Reporting Act 2007 (Cth)
Protection of the Environment Administration Act 1991 (NSW), s 6(2)
State Development and Public Works Organisation Act 1971 (Qld), Pt 4, s 26(1)(a)
Trade Practices Act 1974 (Cth), s 45D
Vienna Convention on the Law of Treaties 1969, Art 31
Convention for the Protection of the World Cultural and Natural Heritage (World Heritage Convention), Arts 4, 5, 5(d), 6
World Heritage Properties Conservation Act 1983 (Cth)
Workplace Relations Act 1996 (Cth)
Cases cited: Adani Mining Pty Ltd v Land Services of Coast and Country Inc [2015] QLC 48
Buzzacott v Minister for Sustainability, Environment, Water, Population and Communities [2013] FCAFC 111; 215 FCR 301
Chan v Minister for Immigration and Ethnic Affairs [1989] HCA 62; 169 CLR 379
Coast and Country Association of Queensland Inc v Smith [2015] QSC 260
Collector of Customs v Pozzolanic [1993] FCA 456; 43 FCR 280
Commonwealth v Tasmania [1983] HCA 21; 158 CLR 1
Daubert v Merrill Dow Pharmaceuticals Inc 509 US 579 (1993)
Esposito v Commonwealth of Australia [2015] FCAFC 160; 235 FCR 1
Lansen v Minister for Environment and Heritage [2008] FCAFC 189; 174 FCR 14
Lawyers for Forests Inc v Minister for the Environment, Heritage and the Arts [2009] FCA 330; 165 LGERA 203
Continue reading Australian Conservation Foundation Inc v Minister for the En...
Sign in free to access the full text
- AGLC
- Australian Conservation Foundation Inc v Minister for the Environment [2016] FCA 1042
- Case
- [2016] FCA 1042
- Decision Date
CaseChat Overview and Summary
The court examined the statutory framework of the Environmental Protection and Biodiversity Conservation Act 1999 (Cth) and the World Heritage Convention to assess the Minister's decision. The Minister's statement of reasons included findings on the potential impact of greenhouse gas emissions on the Great Barrier Reef World Heritage Area and the Great Barrier Reef National Heritage Place. The court considered whether the Minister appropriately applied sections 82, 136, 137, 391, and 527E of the EPBC Act and whether the precautionary principle was properly considered. The court also examined whether the Minister's decision was inconsistent with Australia's obligations under the World Heritage Convention.
The court concluded that the Minister's decision-making process was legally sound. The Minister considered the proponent's environmental impact statement, the Queensland Coordinator-General’s Report, and additional information from various parties. The Minister found that the proposed action would not have an unacceptable impact on the world heritage values of the Great Barrier Reef World Heritage Area and the national heritage values of the Great Barrier Reef National Heritage Place. The court held that the Minister properly applied the relevant sections of the EPBC Act, considered the potential impact of greenhouse gas emissions, and appropriately balanced the environmental concerns with the project's economic benefits. The court dismissed the application for judicial review.
The final orders of the court were that the amended originating application for judicial review was dismissed, and the parties were to seek agreement on proposed orders for costs. If agreement could not be reached, each party was to file and serve submissions not exceeding three pages in support of their proposed orders within seven days.
Orders
Orders of the court
1. The amended originating application for judicial review dated 28 January 2016 is dismissed.
2. The parties should seek to agree proposed orders as to costs and, if they are unable to do so, within seven days hereof they should each file and serve submissions not exceeding three pages in support of their individual proposed orders as to costs.
Note: Entry of orders is dealt with in Rule 39.32 of the Federal Court Rules 2011.
Background
Background to the litigation
Full text does not contain this section.
Evidence
Evidence Before The Court
Full text does not contain this section.
Decision
Reasons for decision
Ratio Decidendi
Legal Principle Established
The statement contains the Minister’s findings on material questions of fact relating to such topics as the Great Barrier Reef World Heritage Area, the Great Barrier Reef National Heritage Place and climate change and greenhouse gas emissions. It is sufficient to focus on the latter topics, given their prominence in the proceeding. The following paragraphs in the Minister’s statement of reasons relate to those topics (without alteration and emphasis added in text):40.A number of submissions raised concerns about the proponent's assessment of greenhouse gas emissions in relation to possible impacts on the Great Barrier Reef. My consideration of greenhouse gas emissions is at paragraphs 131 to 141.…Conclusion47.In making my decision I considered the proponent’s EIS, the Coordinator-General’s Report, additional information provided by the proponent and other parties and the Department’s briefing material. 48.Based on this information, and with consideration of the distance of the GBRWHA from the project and the mitigation measures and conditions imposed by the CoordinatorGeneral, and after giving consideration to the greenhouse gas emissions from mining operations and from the burning of the mined coal, I found that the proposed action would not have an unacceptable impact on the world heritage values of the Great Barrier Reef World Heritage Area. National Heritage placesGreat Barrier Reef National Heritage Place49.In May 2007, the Great Barrier Reef was placed on the National Heritage List. This list comprises natural and cultural places that contribute to our national identity, providing a tangible link to past events, processes and people. 50.The Great Barrier Reef was one of 15 World Heritage properties including in the National Heritage List in 2007. The Great Barrier Reef National Heritage place has national heritage values in respect of the following national heritage criteria, which are prescribed in regulation 10.01A of the Environment Protection and Biodiversity Conservation Regulations 2000 (Cth) for the purposes of section 324D of the EPBC Act.i.the place has outstanding heritage value to the nation because of the place’s importance in the course, or pattern, of Australia’s natural or cultural history;ii.the place has outstanding heritage value to the nation because of the place’s possession of uncommon, rare or endangered aspects of Australia’s natural or cultural history;iii.the place has outstanding heritage value to the nation because of the place’s potential to yield information that will contribute to an understanding of Australia’s natural or cultural history;iv.the place has outstanding heritage value to the nation because of the place’s importance in demonstrating the principal characteristics of:i.a class of Australia’s natural or cultural places; orii.a class of Australia’s natural or cultural environments; andv.the place has outstanding heritage value to the nation because of the place’s importance in exhibiting particular aesthetic characteristics valued by a community or cultural group.51.The heritage values that cause the Great Barrier Reef National Heritage place to meet the above criteria (its national heritage values), are the same heritage values that cause it to meet the world heritage criteria set out above.52.Therefore, I found that the potential impacts to the Great Barrier Reef National Heritage place are commensurate to the potential impacts from the proposed action on the Great Barrier Reef World Heritage property. Mitigation and management measures equally apply to the Great Barrier Reef National Heritage place. 53.In making my decision I considered the proponent’s EIS, the Coordinator-General’s Report, additional information provided by the proponent and other parties and the Department’s briefing material. Based on this information, and after giving consideration to the greenhouse gas emissions from mining operations and from the burning of the mined coal, I found that the proposed action would not have an unacceptable impact on the national heritage values of the Great Barrier Reef National Heritage place. …Climate change and greenhouse gas emissions131.The 2014 Great Barrier Reef Outlook Report identifies climate change as the most serious threat to the Great Barrier Reef. The report states that climate change is already affecting the Reef and is likely to have far-reaching consequences in the decades to come. Sea temperatures are on the rise and this trend is expected to continue, leading to an increased risk of mass coral bleaching; gradual ocean acidification will increasingly restrict coral growth and survival; and there are likely to be more intense weather events. The extent and persistence of these impacts depends to a large degree on how effectively the issue of rising levels of greenhouse gases is addressed worldwide. The impacts of increasing ocean temperatures and ocean acidification will be amplified by the accumulation of other impacts such as those caused by excess nutrient run-off.132.The proponent has identified the direct emissions of the proposed action (Scope 1 emissions) and the direct emissions resulting from energy required to undertake the proposed action (Scope 2 emissions). This approach is consistent with the provisions of the National Greenhouse and Energy Reporting Act 2007 (Cth) (NGER Act).133.The NGER Act prescribes a single, national framework for corporations to report on greenhouse gas emissions, energy consumption and energy production data. The NGER Measurement Determination 2008 made under subsection 10(3) of the NGER Act sets out the principles, methods and criteria for the estimation of greenhouse gas emissions reported by corporations that meet specific legislative emissions and/or energy thresholds. 134.For each facility under its operational control, the NGER Act requires a corporation to identify whether its emissions are:•Scope 1 (direct) emissions – includes the release of greenhouse gas emissions as a direct result of activities undertaken at a facility. They are emissions over which the entity has a high level of control; or•Scope 2 (energy direct) emissions – includes the release of greenhouse gas emissions from the generation of purchased electricity, steam, heating or cooling consumed by a facility, but do not form part of the facility. Scope 2 emissions are indirect emissions that entitles can easily measure and significantly influence through energy efficiency measures.135.The NGER Act does not require reporting of Scope 3 (indirect) emissions. The proponent has characterised Scope 3 emissions as including emissions from the transport of the product coal from the mine to overseas destinations and the combustion of the product coal at those destinations. Such emissions would not be covered by the characterization of Scope 3 contained in the National Greenhouse Accounts Factors Workbook published by the Department. 136.The proponent has provided the following information on scope 1, 2 and overseas emissions associated with the proposed action. Greenhouse gas emissions (tonnes CO2 – equivalent)