Air pollution, Causation, Environmental Impact Assessments, Biodiversity, Precaution, Burden of Proof, Declaratory Relief, Polluter Pays, Damages, Evidence
The Anvil Hill case, decided by the New South Wales Land and Environment Court, concerned the adequacy of an environmental impact assessment (EIA) prepared as part of the development approval process for construction of a large new open-cut coal mine at Anvil Hill, near Newcastle. The Anvil Hill mine is capable of producing up to 10.5 million tonnes of coal per annum over a lifespan of 21 years. Coal from the proposed mine is destined for use in coal-fired power stations in New South Wales and overseas, particularly in Japan. The project required environmental assessment under Pt 3A of the Environmental Planning and Assessment Act 1979 (NSW) (EPAA), which applies to major infrastructure and other significant development proposals undertaken in New South Wales. Terms of reference for the EIA were set by the Director-General of the Department of Planning which required that the assessment include, as a “key” issue, “Air quality – including a detailed greenhouse gas assessment”. The EIA prepared by the proponent’s environmental consultants consequently considered the potential GHG emissions from the project, largely assessing these in accordance with industry standards. Such standards specify “indirect emissions” as an optional reporting category. This category of emissions would have covered an analysis of the potential GHG emissions from the burning of coal by third parties outside the control of the proponent, but were not assessed in the EIA for the Anvil Hill mine proposal. It was this omission that was challenged by the applicant in the case, a local environmental activist who was also a member of the Rising Tide Newcastle climate change action group. The Judge accepted the applicant’s argument that GHG emissions from the burning of coal to be extracted from the new mine should have been considered in the proponent’s environmental assessment because of their potential contribution to climate change/global warming. Both the direct and indirect impacts of the project on the environment of New South Wales were relevant to the assessment process. Moreover the Judge held this did not mean that the contribution from a single large source, such as the Anvil Hill Project in the New South Wales context, should be ignored in the environmental assessment process. Consequently her Honour ruled that “there is a sufficiently proximate link between the mining of a very substantial reserve of thermal coal in NSW, the only purpose of which is for use as fuel in power stations, and the emission of GHG which contribute to climate change/global warming, which is impacting now and likely to continue to do so on the Australian and consequently NSW environment, to require assessment of that GHG contribution of the coal when burnt in an environmental assessment under Pt 3A”. The court went on to draw links between an adequate environmental assessment of climate change impacts and compliance with principles of ecologically sustainable development (ESD), such as those of inter-generational equity and precaution. The court emphasised that the “key purpose” of EIA is “to provide information about the impact of a particular activity on the environment to a decision maker to enable him or her to make an informed decision based on adequate information about the environmental consequences of a particular development”. For an environmental assessment to take proper account of the principles of inter-generational equity and precaution, the Judge found there was a need to assess the long-term, on-going, and cumulative impacts of a proposal on the environment. In addition sufficient information needed to be put before the Minister to enable his consideration of all relevant matters so that if there is serious or irreversible environmental damage from climate change/global warming and there is scientific uncertainty about the impact he can determine if there are measures he should consider to prevent environmental degradation in relation to this project. The Court ruled that it was not sufficient for the proponent simply to raise the climate change/global warming issue in the EIA to satisfy the requirement to look to long-term environmental impacts. An adequate assessment of this issue was still required and the fact that precise quantification might be difficult did not mean that it did not have to be attempted in the EIA. The Judge agreed with the respondents’ arguments “that ESD principles do not require that the GHG issue, including downstream emissions, override all other considerations” and stressed that it was ultimately up to the responsible Minister to “decide how the ESD principles in their entirety are to be applied in relation to the Anvil Hill Project in terms of the integration of environmental and economic decision making the principle of ESD requires.