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The Wrong Place and the Wrong Time: The Rocky Hill Case and a Landmark Legal Win for Climate Action

Monday, March 25, 2019

Isabelle Smith

Law Clerk

As the global community faces the reality that a rapid reduction in greenhouse gas (GHG) emissions is urgently required, a new class of climate change litigation is emerging. But what impact are these proceedings having?

A recent case from New South Wales (NSW), Australia, has directly challenged development that is at odds with GHG emission reduction targets. Hailed as a “landmark decision” in climate litigation, the case represents the first time an Australian court has refused a coal mining development consent not only on the basis of unacceptable “planning, visual and social impacts,” but also to prevent a new source of GHG emissions.

How did this landmark decision come to be, and what are its consequences? The mining company, Gloucester Resources Limited (GRL), began its investigative and exploratory work for the proposed Rocky Hill Coal Project in March 2010. The proposed site would cover approximately 830 hectares in a valley near the small country town of Gloucester, NSW. GRL sought to mine 21 million tons of coal from an open-cut mine on the proposed Gloucester Valley site over a 16-year period.

Mining operation

Two years down the track from initial project planning, GRL applied to the Department of Planning and Environment for development consent to begin the Project. In 2016, the application was accepted, amendments were made, and the project application was opened for public comment over a three-month period. GRL promised a range of community benefits including up to 60 jobs to build the mine and another 110 jobs to operate it, apprenticeships for young people, community partnerships and grants, more than $2 million in road improvements, and approximately $200 million to the NSW government in royalties and taxes. But the proposal divided the local community of Gloucester. During the comment period, 2,570 submissions were received, approximately 90% opposing the project. By the end of 2017, following the recommendation of the Department of Planning and Environment, the amended application was rejected. The Planning and Assessment Commission, acting as the delegate of the Minister for Planning, gave three reasons for the refusal, including that the project was not in the public interest.

GRL filed an appeal. The local community action group, Groundswell Gloucester Inc., joined the Minister for Planning as a respondent.

On February 8, 2019, nine years after project planning began, the decision—Gloucester Resources Limited v. Minister for Planning—was released. In it, Chief Justice Brian Preston of the NSW Land and Environment Court dismissed GRL’s appeal, upholding the government’s refusal.

This was probably a surprise to many, given the lengthy planning process and the fact that proposed project would have been located in an Australian state whose economy is closely tied to the mining industry—contributing $1.8 billion in royalties in 2017-2018 (equivalent to almost one-half of the NSW government’s 2017-18 budget surplus) and providing more than 40,000 jobs. So what went wrong for GRL? The answer it seems, at least in part, is climate change.

In balancing the benefits and the impacts of the mine, Chief Justice Preston wrote:

An open-cut coal mine in this part of the Gloucester Valley would be in the wrong place at the wrong time. Wrong place because an open-cut coal mine in this scenic and cultural landscape, proximate to many people’s homes and farms, will cause significant planning, amenity, visual and social impacts. Wrong time because the GHG emissions of the coal mine and its coal product will increase global total concentrations of GHGs at a time when what is now urgently needed, in order to meet generally agreed climate targets, is a rapid and deep decrease in GHG emissions.

The court heard evidence from an earth systems science expert, Prof. Will Steffen, about these dire consequences. Professor Steffen highlighted that the impacts of climate change have not only been felt around the world, but also by the NSW mid-north coast region in question, with coastal flooding, worsening heatwaves, bushfire weather risks, and changing rainfall patterns, with further extremities in the climate predicted in the future—dire consequences that “should be avoided” according to the decision.

Importantly, Chief Justice Preston not only accepted the causal link between the project’s cumulative GHG emissions and climate change and its consequence, but recognized that it was not important that the emissions from the mine would represent only a fraction of the global total GHG emissions. What mattered instead was the need for multiple local actions to mitigate emissions by sources and to remove GHGs by sinks. The court also accepted Professor Steffen’s evidence on the “carbon budget” approach required to achieve long-term temperature limitation goals.

Chief Justice Preston determined that approving the project would not assist in achieving the rapid and deep reductions in GHG emissions needed by Australia to balance emissions and meet goals agreed upon under the Paris Agreement. While the court rejected the idea that no future fossil fuel development should ever be approved, GHG emission assessments and mitigation efforts, for example through carbon capture and storage or offsets, may now form a significant approval prerequisite.

David Morris, CEO of the NSW Environmental Defenders Office, (the community legal center that represented Groundswell Gloucester in the case), commented:

. . . the judgment presents a foundational question for all decision makers. It is this: given that, if we are to remain within the global carbon budget, only a finite amount of additional carbon can be burned, and that existing approvals already exhaust that budget, why should this particular project be prioritized over any other, or displace an existing approval? That is "the wrong time" test and will prove an insurmountable barrier for many projects going forward.

Following the Gloucester Resources case, future fossil fuel projects seeking approval in NSW now stand to be subject to the “the wrong time” test. If the Paris Agreement and the recent UN IPCCC warnings on the need for urgent action to limit catastrophic climate change are to be taken seriously, the “right time” for fossil fuel projects whose proponents are unwilling to engage in climate realities is over.