Is it possible? Is it likely? Appealing a coal mine using the HR Act
By Peter Burnett
A group of young people in Queensland are challenging the approval of Clive Palmer’s giant Waratah coal mine. The challenge is based on human rights – a legal first in Australia – and it just might rewrite the law books.
The Waratah mine, which is near Adani’s Carmichael mine but a separate project, is huge. If my back of the envelope calculations are correct, coal from the Waratah mine represents about 3% of the world’s remaining carbon budget if warming is to be limited to 2 degrees.
Challenging the mine’s approval on the basis of human rights is a novel approach. It’s based on Queensland’s new Human Rights Act (‘HR Act’), passed in 2019. Only the ACT has a comparable Act, though Victoria has a Charter of Rights and there’s a federal Human Rights Commission.
Where does a human rights approach take us?
The HR Act protects a series of rights, including the right to life, right to own property and right of children to protection. It makes no mention of the environment. Rather, the argument will be that the mine breaches human rights by contributing to climate change, which in turn will impair these rights.
The HR Act directs Queensland decision-makers, including those responsible for environmental approvals, to consider human rights and makes it unlawful for them to take decisions that are not compatible with human rights.
No doubt the case against the Waratah mine will involve arguments about the meaning of rights such as the right to life. However, that’s not the interesting part from our environmental perspective.
To prove that the mine would breach their human rights, the applicants will have to establish that it would contribute significantly to climate change. This will involve showing that emissions resulting from the mine would make a significant contribution to global emissions.
So, despite the novel human rights basis for the challenge, we find ourselves back on the familiar but troublesome environmental terrain, traversed in earlier challenges based on environmental laws, of demonstrating the contribution of individual developments to climate change.
The substitution argument
The mine is probably big enough to rate as a significant potential contributor to emissions. The problem is causation: if the coal is mined and exported, will this actually increase emissions by the amount of carbon in the coal? Is there additionality of impact?
Additionality is not a simple physical cause and effect issue. Before it is burnt, the coal is sold into a market, in which human actors take independent and unpredictable transactional decisions.
This then raises the ‘substitution argument’, an economic argument that the coal from this mine may substitute for another energy source, such as lower quality coal, in which case the Waratah coal might even reduce emissions if the low quality coal is thereby pushed out of the market and left in the ground.
But there are variations and elaborations on the substitution argument. In one case the federal environment minister, considering whether to approve the Adani coal mine in 2016, argued in effect that it was not possible to tell who would buy the coal, what it would replace, or how other suppliers might respond, which meant that it was not possible to tell whether there would be any additional impact.
The minister instead declared himself satisfied that emissions associated with the project would be managed through the Paris Agreement. The Federal Court accepted this as a legally valid approach.
In the more-recent Rocky Hill case, Chief Judge Preston of the NSW Land and Environment Court rejected another version of the argument, which amounted to ‘if we don’t mine this coal, someone else will supply something worse’. Justice Preston rejected this ‘lesser of two evils’ framing in favour of what amounted to a presumption of additionality, which could only be displaced by evidence of substitution.
Will the courts reject the substitution argument?
On the face of it, this latest challenge might lead to an appeal court ruling, possibly from the High Court, on the substitution argument. If favourable to the young appellants, this might lead to an outcome where, subject to the specifics of the laws concerned, environmental assessments must consider downstream (Scope 3) carbon emissions on the basis that their potential emissions were their actual emissions.
However, the courts will not necessarily accept or reject the substitution argument. When reviewing the use of such arguments by decision makers, most courts, and certainly appeal courts, are not deciding which substitution argument is the best approach to analysing downstream impacts, but whether the approach chosen is legitimate.
The problem is that most versions of the substitution argument have some legitimacy – they just vary in their assumptions or predictions about whether and how markets might respond to the sale of the coal.
The underlying problem
The challenge brought by this group of young people is innovative and bold, but I think the new path they have taken will lead eventually to the same swamp of substitution that has caused problems before.
The underlying problem is that we don’t have a comprehensive climate policy including a carbon budget. If we did, the question might be whether we should allocate a significant share of our budget to a coal mine (and, if the system allocates Scope 3 budgets to importing countries: do they want to allocate their carbon budget to importing more coal)?
At the end of the day, this challenge is another attempt to force our bottom-up project approval system to address what is really a top-down issue: what is our carbon budget and how should we allocate it?
You never know, this challenge just might rewrite the law books, and you can certainly understand why people keep trying, against the odds.
But it would be so much simpler if we just adopted a comprehensive climate policy.