Australian Conservation Foundation Incorporated v Minister for the Environment

The Federal Court of Australia (Griffiths J) dismissed an application for judicial review of a decision made by the Minister for the Environment to approve Adani Mining Pty Ltd's construction of the Carmichael Coal Mine. The applicant, the Australian Conservation Foundation, argued that the Minister failed to comply with the requirements of the Environment Protection and Biodiversity Conservation Act 1999 (Cth) by not considering the impact of scope three greenhouse gas emissions (emissions arising from burning rather than extracting coal) on the climate and the Great Barrier Reef. Specifically, it was contended that the Minister had: (a) failed to consider the precautionary principle; (b) failed to comply with the obligation to act consistently with Australia’s commitments under the World Heritage Convention; and (c) erred in characterizing scope three emissions as “not a direct consequence” of the proposed action. The Court rejected the applicant’s claims. First, there was no failure to apply the precautionary principle; the evidence did not establish a sufficiently clear link between approval and harm to the Great Barrier Reef to warrant its application. Second, there was no failure to act inconsistently with World Heritage Convention obligations given the discretion granted to States Parties in implementing those obligations. Third, 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 their judicial review challenge. ACF’s main claim on appeal was that the primary judge mistakenly 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 viewed the physical effects as an impact under s 527E and therefore did not follow the proper assessment procedure under the Act. ACF argued that the Minister failed to consider the definition of the term “impact” in s 527E, thus not identifying the effects of overseas emissions as impacts. The Full Court dismissed this argument and concluded that the Minister had correctly fulfilled his statutory duty under the Act, considering the potential physical impacts of the relevant emissions. The information available to the Minister regarding overseas emissions was assessed, and the likely impact of such emissions upon the protected matters was taken into account. The appeal was dismissed, with costs to be decided at a later date. On costs, the Court noted: 'We recognize that issues concerning the Reef and climate change are matters of great importance to the Australian community. However, it does not follow that misguided litigation should be pursued at the expense of parties who properly understood the law’ at [6]. Order: Appellant pays each Respondent’s costs of the appeal.