Australian Conservation Foundation Incorporated v Minister for the Environment

COURT OR TRIBUNAL

Federal Court of Australia

DATE FILED (OR FIRST HEARING DATE)

09/11/2015

LITIGATION TYPE

Project Approval - Mitigation

SUBJECT MATTER

Coal mine

REVIEW TYPE

Judicial review

SUMMARY

The Federal Court of Australia (Griffiths J) dismissed an application for judicial review of a decision taken by the Minister for the Environment to approve Adani Mining Pty Ltd undertaking construction of the Carmichael Coal Mine. The applicant, the Australian Conservation Foundation, contended that the Minister failed to comply with the requirements of the Environment Protection and Biodiversity Conservation Act 1999 (Cth) by failing to consider the impact of scope three greenhouse gas emissions (emissions caused by the burning rather than extracting the coal) on the climate, and the Great Barrier Reef. Specifically, it was argued that the Minister had: (a) failed to consider the precautionary principle; and (b) failed to comply with the obligation not act inconsistently with Australia’s obligations under the World Heritage Convention; and (c) erred in characterising scope three emissions as “not a direct consequence” of the proposed action. The Court rejected the applicant’s contentions. First, there was no failure to apply the precautionary principle: the evidence did not establish a sufficiently clear nexus between approval and harm to the Great Barrier Reef to engage it. Secondly, there was no failure to not act inconsistently with World Heritage Convention obligations given the latitude given States Parties to implement those obligations. Thirdly, the decision-maker was not incorrect in characterizing scope three emissions as an “indirect consequence”.

The Australian Conservation Foundation (ACF) appealed the decision of the primary judge, which dismissed a judicial review challenge. ACF’s main claim on appeal was that the primary judge mistakingly found that the Minister had considered the physical effects of climate change on the Great Barrier Reef as an "impact" of the action within the meaning of s 527E of the Environmental Protection and Biodiversity Conservation Act 1999 (Cth). ACF contended that the Minister had not considered the physical effects as an impact under s 527E and therefore did not follow the correct assessment procedure under the Act. ACF argued that the Minister did not have regard to the definition of the term “impact” in s 527E, and so did not identify the effects of the overseas emissions as being impacts. The Full Court dismissed this argument and found that the Minister had correctly discharged his statutory duty under the Act and considered the possible physical impacts of the relevant emissions. The information available to Minister on overseas emissions was evaluated and the likely impact of such emissions upon the protected matters was considered. The appeal was dismissed with costs to be determined at a later time.

On costs, the Court noted: ‘we accept that issues concerning the Reef and climate change are matters of great importance to the Australian community generally. However it does not follow that misconceived litigation should be conducted at the expense of parties who have correctly understood the law’ at [6]. Order: Appellant pays each Respondent’s costs of the appeal.

CASE DOCUMENTS

Australian Conservation Foundation Incorporated v Minister for the Environment [2016] FCA 1042; 251 FCR 308; 156 ALD 1
Australian Conservation Foundation Incorporated v Minister for the Environment and Energy [2017] FCAFC 134; 251 FCR 359; 10 ARLR 376; 227 LGERA 347
Australian Conservation Foundation Incorporated v Minister for the Environment and Energy (No 2) [2017] FCAFC 216