Coal and Climate Change: A Study of Contemporary Climate Litigation in Australia

Climate change is the most serious and most pervasive risk faced by the natural world and by global human society. The Australian continent is one of the most vulnerable to the impacts of climate change; however, effective national political responses appear to be compromised at every turn. Concerned groups and individuals are unsurprisingly seeking environmental justice in courts and tribunals, and litigation has challenged some of the largest coal developments in Australia. This article examines challenges in the Commonwealth, New South Wales and Queensland jurisdictions by means of merits review and judicial review against coal mining project proposals in order to evaluate the approaches taken by tribunals and courts to the environmental assessment of coal projects. The recent decision of the New South Wales Land and Environment Court in Gloucester Resources Ltd v Minister for Planning has set rigorous new standards for assessment and approval processes with respect to coal projects. To this point decision-makers have taken conservative views of their powers to go beyond the immediate objective of the mining tenure or authorisation being sought, and have accepted the market substitution argument that if we do not mine the coal then someone, somewhere will and we will be no better off. On the other side, some courts have offered leadership in the development of progressive methodologies, such as a broader “public interest” test that embraces climate change issues, of which the Gloucester decision has been the high point.