NSW judge cites greenhouse emissions when banning Hunter Valley coal mine

Foes of the Gloucester project are all smiles as they leave court after learning the mine will not be allowed to go ahead.

Foes of the Gloucester project are all smiles as they leave court after learning the mine will not be allowed to go ahead. Photo: AAP/Peter rae

Environmentalists and activists are celebrating a landmark court ruling that has stopped all work on a controversial Hunter Valley coal mine, with the judge ruling that greenhouse emissions made the project untenable.

In a ruling that will almost certainly have far-reaching implications for future fossil fuel projects, Justice Brian Preston said the world “urgently” needed “a rapid and deep decrease in GHG emission”, not another coal mine.

His decision caps a long-running legal saga that saw the project fought every step of the way by activist groups and local residents.

The mine was denied permission to operate in 2017 by the NSW Department of Planning and Environment, prompting the company behind it, Gloucester Resources (GRL), to lodge an appeal with the Land and Environment Court of New South Wales.

“An open cut coal mine in this part of the Gloucester Valley would be in the wrong place at the wrong time,” Justice Preston said in his judgment on that appeal.

“All of the direct and indirect GHG emissions of the Rocky Hill Coal Project will impact on the environment.”

Posters like this opposing the mine became a routine sight in the Gloucester area. Photo: Flickr

Spectators in the packed courtroom hugged and exchanged high-fives as Justice Preston delivered his judgment, with one opponent to the mine sobbing with joy.

The chief executive of community legal centre Environmental Defenders Office, David Morris, hailed the veto as “profoundly influential”.

“The judgment is, I think, the first big piece of climate change litigation that this country has seen,” he told reporters.

“Any decision-maker on fossil fuel projects would bear [Justice Preston’s] reasoning closely in mind in determining whether or not a new fossil fuel project should be approved in this country.”

GRL had argued the increase in gas emissions associated with the project would be minimal and did not bear considering.

Justice Preston, who was once the principal solicitor at the activist NSW Environmental Defender’s Office, dismissed  that claim as “speculative and hypothetical”.

“A consent authority cannot rationally approve a development that is likely to have some identified environmental impact on the theoretical possibility that the environmental impact will be mitigated or offset by some unspecified and uncertain action at some unspecified and uncertain time in the future,” he said.

The very picture of rural tranquility, this Gloucester paddock will remain safe for cows – not home to earth-gouging machines. Photo: ABC

The company also suggested greenhouse gas emissions would occur regardless of whether the Rocky Hill project went ahead, arguing that “investment will flow to other large coal producers and mines” – in effect sending Australian jobs and profits overseas

Justice Preston also rejected that “flawed” argument by noting that renewable energy sources were replacing fossil fuels and BRG had no way of knowing technology would not provide viable substitutes for coal.

“Countries around the world are increasingly taking action to reduce greenhouse gas emissions … not only to meet their nationally determined contributions but also to reduce air pollution,” he said.

Justice Preston also pointed to the visual impacts the mine would have on the local community, plus the noise and dust it would create.

He said these issues outweighed the economic and other public benefits of the coal mine.

“I find that the negative impacts of the project, including the planning impacts on the existing, approved and likely preferred land uses, the visual impacts, the amenity impacts of noise and dust that cause social impacts, other social impacts, and climate change impacts, outweigh the economic and other public benefits,” he wrote.

“Balancing all relevant matters, I find that the project is contrary to the public interest and that the development application for the Project should be determined by refusal of consent to the application.”

Pro-business group Advance Gloucester official Rod Williams had argued that the mine’s estimated 140 jobs would be a boon to the local economy and that any rejection of the mine would amount to a repudiation of one of the the Hunter Valley’s traditional industries and economic mainstays.

“We feel it ticks the boxes with all those constraints and complaints that they’ve got to meet,” Mr Williams told the ABC in 2017. “We see on balance there’s far more benefit to the mine going ahead than it not.”

Climate Council chief executive Amanda McKenzie wasn’t buying a word of that argument as she celebrated the decision..

“The NSW Land and Environment court has effectively ruled that coal – just like tobacco and asbestos – is bad for us,” Ms McKenzie said in a statement.

“I’m thrilled to see the law catching up with the science.

-with wires

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