decision

Australian Conservation Foundation Incorporated v Minister for the Environment - decision

Filing Year For Action

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.

Australian Conservation Foundation Incorporated v Minister for the Environment

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An aim to achieve a quantifiable outcome within a given time-frame, set by an institution such as a national government.

Policy instruments are techniques or tools used by governing authorities to promote certain policies in order to achieve predetermined goals. Put simply, instruments are how a government tries to achieve its goals, with this taxonomy being focused on national policy instruments.

Risk is the potential for adverse consequences resulting from the dynamic interplay between (climate-related) hazards, exposure, and vulnerability of affected human or ecological systems.

Groups  of people who are adversely affected by climate change or the response to it

A set of principles, processes, and practices that build economic and political power to shift from an extractive economy to a regenerative economy.

Renewable energy means all forms of energy produced from renewable sources in a sustainable manner.

Fossil fuel is a generic term for non-renewable energy sources such as coal, fossil gas, and oil (including crude oil, and petroleum products), that can be used for electricity and heat generation. Fossil fuels are hydrocarbons formed from pressurised and heated organic material buried over millions of years.

Molecules in the atmosphere that play a key role in the greenhouse effect by trapping heat radiating from Earth’s surface.

Area of the economy in which actors engage in identical or related activities.

In human systems, the process of adjustment to actual or expected climate change and its effects, in order to moderate harm, increase resilience or exploit beneficial opportunities. In natural systems, the process of adjustment to actual climate change and its effects; human intervention may facilitate adjustment to expected climate change and its effects.

The management and allocation of funds, assets and investments to meet various objectives

A long-lived, colourless gas, chiefly emitted from fossil fuel combustion, deforestation and cement production.

This sector involves the wholesale and retail selling of goods.

Risks to the ecosystem health of the marine environment, including ocean warming, ocean acidification, and ocean deoxygenation, harming biodiversity, species health, ecosystem services, and coastal community livelihoods.

Terrestrial means "of the earth" and relates to the risks to ecological system that includes all living organisms and their interactions within land-based environments, such as forests, grasslands, and deserts.

Slow onset events evolve gradually from incremental changes over many years or from increased frequency or intensity of recurring events. As defined in the Cancun Adaptation Framework (2010), slow onset events include risks and impacts from rising temperatures, desertification, biodiversity loss, land and forest degradation, glacial retreat, ocean acidification, sea level rise, and salinization.

Action or measure that increases resilience of societal, cultural and natural heritage to climate change impacts.

Coal is a combustible sedimentary rock formed from carbonised plant matter, rich in carbon and hydrocarbons, and occurring in several main types including hard coal and brown coal.

Either money or something of monetary value is transferred between two or more organisations, people or countries.

Activities that involve planning, designing and building infrastructure, residential, and commercial structures.

Activities of industries that extract natural resources, such as mining, oil, and gas, for commercial use.

The release of heat-trapping gases, primarily from human activities such as burning fossil fuels, agriculture and industry.

This sector involves activities to move goods and people, alongside the storage of products.

Extreme weather refers to events where a weather variable exceeds (or falls below) a threshold. Meaning it is significantly different from the average or usual weather pattern.

Fossil gas, commonly known as natural gas, is a fossil fuel consisting chiefly of methane with smaller amounts of other hydrocarbons and trace gases, found in underground deposits.

Australian Conservation Foundation Incorporated v Minister for the Environment - decision

Risk

Impacted group

Fossil fuel

Greenhouse gas

Economic sector

Adaptation/resilience

Finance