Rocky Hill Coal ~ The Judge Who Stood Up

Filed under Mining, Throsby ~ by Throsby on  10 Feb 2019

Climate took centre stage to oppose an open cut coal mine near Gloucester.

Chief Justice Brian Preston of the NSW Land and Environment Court rejected Gloucester Resources (GRL) appeal to overturn a government decision against the mine.

Although the judge rejected the appeal on traditional lines, this is the first time a coal mine in Australia was also refused for its potential contribution to climate change.

Pictured: View of the town of Gloucester, NSW, Gloucester River NSW, and Gloucester Valley. Taken from Bucketts Tops, looking east. Image credit Rangasyd

Representing community group Groundswell Gloucester, NSW Environmental Defenders Office argued the mine was “contrary to the public interest and principles of ecologically sustainable development because of its significant social and climate change impacts.”

In the face of that acceptance, 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 prioritised 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,” said NSW EDO CEO David Morris.

The ruling is remarkable in a state where mining and fracking have an appearance (in the public perception) of carte blanche on productive farmland, virgin forests, and rural townships.

It flies in the face of a Liberal-Nationals commonwealth government that favours new coal mines and new coal-fired power stations – a government of demonstrated hostility to renewable energy, that criticises emissions targets being too high, and displays open scepticism of climate change from its parliamentary ranks.

Conceding the facts of emissions, GRL could only try to diminish objections based on community values, health, and well-being, and to conflate both the economic benefits and the importance to the public at large, to “the state,” of the Rocky Hill open cut coal mine.

Gloucester Coal – existing open cut mine in the Gloucester region ~ Image credt: Jeremy Buckingham MP
Game Changer

The traditional range of objections to the project were presented by opponents, including dust, noise, visual, environmental and social degradations.

But a “game-changer” and highly-significant inclusion in this case – one readily accepted and wielded by the Chief Justice – was the coal mine’s contribution to climate change, to the entire planet’s greenhouse gas (GHG) emissions.

“In short, 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.

“These dire consequences should be avoided. The Project should be refused.

Justice Preston chose to elevate the project’s contribution to climate change via greenhouse gas emissions, despite both state and federal governments’ failure to prescribe how emissions should achieve reductions to meet the Paris Agreement. But neither was there a proscription of approvals – in particular, coal mining.

The approval of the Project (which will be a new source of GHG emissions) is also likely to run counter to the actions that are required to achieve peaking of global GHG emissions as soon as possible and to undertake rapid reductions thereafter in order to achieve net zero emissions (a balance between anthropogenic emissions by sources and removals by sinks) in the second half of this century.

This is the globally agreed goal of the Paris Agreement (in Article 4(1)). The NSW government has endorsed the Paris Agreement and set itself the goal of achieving net zero emissions by 2050. It is true that the Paris Agreement, Australia’s NDC of reducing GHG emissions in Australia by 26 to 28% below 2005 levels by 2030 or NSW’s Climate Change Policy Framework do not prescribe the mechanisms by which these reductions in GHG emissions to achieve zero net emissions by 2050 are to occur.

In particular, there is no proscription on approval of new sources of GHG emissions, such as new coal mines.

The 200 page judgement, that ran to 75,000 words, weighed the mine’s effect on visual environment, amenity (noise and dust), land use, social and economic outcomes, and – of immense importance for future court battles – “the impacts of the mine on climate change.”

Opposition

NSW Environmental Defenders Office chose to treat this as a “once in a generation case” – the first of its kind since the Paris Agreement.

EDO counsel Robert White called expert witnesses on visual and noise impacts, climate science and energy finance, the economics of coal, town planning, and social impacts.

These included Emeritus Professor Will Steffen on the global carbon budget, which must not be exceeded if temperature rise is to be kept at less than 2C on pre-Industrial levels; energy analyst Tim Buckley on the risk that the coal mine would become a stranded asset, given market trends away from coal; acoustics expert Stephen Gauld on the noise nuisance from the mine; and anthropologist and expert on regional communities and displacement Dr Hedda Askland, on likely social impacts of the mine.

Residents opposing the mine formed the group Gloucester Groundswell in response to decades of “plans for the industrialisation of our valley” such as AGL’s proposal for 330 coal seam gas (CSG) wells, the 2003 Duralie open cut mine near Stroud Road township, and the 1995 Stratford Coal Mine.

Despite the Rocky Hill win, residents and landholders are still concerned that the Chinese company, Yancoal, owner of Stratford and Duralie mines, and the largely foreign-owned GRL, have between them acquired over 7,000 hectares of land, much of it farmland, with proposals for continued expansion.

Other Gloucester locals, comprising the community group Advance Gloucester, were disappointed at the outcome, hopeful for the promise of local jobs and cash flow into the region. These hopes were largely dashed in the cost-benefit analysis by Justice Preston, that concluded little if any benefits would be derived for either workers or suppliers.

A community win is a rare event when it comes to opposing coal mining in the Hunter Valley. In 2009, Lake Macquarie residents formed the group “URGE” to oppose a proposal by Centennial Coal to horizontally “auger” mine coal seams at Blackhalls Park. They succeeded in their claim the mine was effectively open cut, which is banned in Lake Macquarie, their chief concern being dust of particulate matter (PM2.5) small enough to be drawn deep into the human lung.

Centennial eventually withdrew, citing economics.

The Proposed Development

GRL lodged a development application for consent to carry out the Rocky Hill Coal Project on 18 December 2012. It was lodged with the NSW Department of Planning and Environment.

The Rocky Hill Coal Project is “State significant development” within the meaning of s 89C(1) now s 4.36(1) of the Environmental Planning and Assessment Act 1979 (“EPA Act”)

It proposed to extract 2.5 million tonnes per year of coal from a new open cut mine and to construct a coal handling and preparation plant as well as an overland conveyor to transport product coal to a dedicated load-out bin and rail loop for transportation to the Port of Newcastle.

On 11 August 2016, GRL lodged an amended development application that stated the principal coal product to be produced from the Rocky Hill Coal Mine is coking coal which is used in the manufacture of steel, and that production would be 2 million tonnes per annum and the total coal production would be 21 million tonnes.

On 23 October 2017, the amended development application was referred to the Planning and Assessment Commission, as the delegate of the Minister, for determination.

On 14 December 2017, the Commission determined the amended development application under the former s 89E(1) of the EPA Act by refusing consent to the application. The Commission gave three reasons:

  1. The creation and operation of an open cut coal mine in this proposed location, within the RU1 and E3 zones of the Gloucester Local Environmental Plan 2010, is in direct contravention of each zone’s objectives;
  2. The residual visual impact of the mine would be significant throughout all stages of the Project; and
  3. The Project is not in the public interest.

On 19 December 2017, GRL filed an appeal under then s 97 now s 8.7 of the EPA Act against the Minister’s refusal of consent.

Opposition Case

Gloucester Groundswell and the Minister for Planning filed on 1 May 2018 that:

  1. the incompatibility of the proposed mine with the existing, approved and likely preferred uses of land in the vicinity of the proposed mine, under cl 12 of State Environmental Planning Policy (Mining, Petroleum Production and Extractive Industries) 2009 (“the Mining SEPP”);
  2. the adverse visual impacts of the mine;
  3. the adverse social impacts of the mine, including social impacts caused by the noise, dust and visual impacts of the mine;
  4. the economic and public benefits of the mine are uncertain and overstated and not shown to be greater than the public costs of the mine; and
  5. the Rocky Hill Coal Project is not in the public interest because:
    1. of the matters in (1) to (4) above; and
    2. it is contrary to the principles of ecologically sustainable development because the direct and indirect greenhouse gas emissions of the mine will contribute to climate change.

Buckettys Range viewed west from a farm in the Gloucester Valley ~ Image credit: Jeremy Buckingham MP
The Ruling in Detail

Justice Preston’s judgement starts with surprising eloquence, captivating in its imagery and clarity.

An open cut coal mine is proposed

1. There is a valley, near Rocky Hill, that a coal mine proposes to cut and fill. The Gloucester valley is a creature of a unique topographic feature. The valley is the floor of a nest, the sides being ranges east and west. The Bucketts is the rocky range to the west. The Mograni range is the mountain range to the east. Both ranges are forest clad. Over aeons, the ranges have eroded. The foothills are talus and slopes, broken by gullies and creeks. The valley floor is an alluvial plain, through which the Avon River flows.

2. In this topographical embrace nestles the country town of Gloucester. The valley and footslopes surround the town. The higher ranges complete the enclosure. The setting is scenic and serene. An idyll, some suggest.

3. Beneath the surface of the valley lies the mineral resource of coal. Geological forces have pushed productive seams of coal near to the surface in the valley beneath Rocky Hill.

4. A mining company, Gloucester Resources Limited (GRL), wishes to mine this coal. It has proposed an open cut coal mine to produce 21 million tonnes of coal over a period of 16 years.

5. The location of this coal resource, and hence the open cut mine, is close to the town of Gloucester. The town has a core of denser urban development and a penumbra of rural-residential estates and smaller agricultural and agri-tourism properties. These outliers of the town are within one to two kilometres of the boundary of the proposed mine. Some properties within the rural-residential estates are only about a kilometre from the mining pit. They are even closer to the large earthern barrier that will be constructed to shield the mining pit from direct view.

6. The proposed mine has divided the community of Gloucester. Of the submissions on the amended development application, 90% opposed the mine and of the submissions from the Gloucester postcode, 83% opposed the mine. They are concerned about the noise and dust impacts of the mine, the adverse impacts on the visual amenity and rural and scenic character of the valley, and the social impacts on the community. They are also concerned that the opening of a new coal mine will contribute to climate change. The supporters of the mine primarily invoke the economic benefits that a new mine will bring, including local employment and expenditure.

7. The proponent, GRL, unsuccessfully applied to the Minister for Planning for development consent for the Rocky Hill Coal Project. The Minister, by his delegate the Planning and Assessment Commission, refused consent to the mine. GRL appealed to this Court. The Court on the appeal exercises the function of the Minister as the consent authority to determine the development application for the Rocky Hill Coal Project.

8. I have determined that GRL’s development application for the Rocky Hill Coal Project should be refused. The mine will have significant adverse impacts on the visual amenity and rural and scenic character of the valley, significant adverse social impacts on the community and particular demographic groups in the area, and significant impacts on the existing, approved and likely preferred uses of land in the vicinity of the mine. The construction and operation of the mine, and the transportation and combustion of the coal from the mine, will result in the emission of greenhouse gases, which will contribute to climate change. These are direct and indirect impacts of the mine. The costs of this open cut coal mine, exploiting the coal resource at this location in a scenic valley close to town, exceed the benefits of the mine, which are primarily economic and social. Development consent should be refused.

Considerations by Justice Preston involved assessing the mine’s affect on:

  1. Existing, approved and likely preferred uses
  2. Visual impacts (visual environment, cognitive mapping, night lighting, etc.)
  3. Amenity (dust, noise)
  4. Social (property, health, anxieties, culture, community, infrastructure)
  5. Economics (cost-benefit, royalties, workers, suppliers)
  6. Climate Change (emissions of greenhouse gases (GHG))
Land use

Parties both agreed that the area in the “vicinity” of the proposed mine is,

…generally described … as extending, in the north, to the north of the town of Gloucester; in the south, to the south of the Stratford Mine Complex; in the east, to the Mograni Range; and in the west, to the rise of the Bucketts Range. The planners agreed that the Forbesdale, Avon River and Thunderbolt rural residential estates and the town of Gloucester were included within this area of the vicinity.

Both parties also agreed that existing uses in the vicinity of the proposed mine include: residential (including rural-residential estates); tourism uses (including tourist and visitor accommodation and tourism activities); agri-business (such as the Hillview Herb Farm) and agriculture (including cattle grazing, hobby farms and dairy farming); and uses associated with Gloucester township, including commercial (retail and business), recreational facilities (such as the golf course) and social infrastructure facilities (such as the high school and the hospital).

Then GRL claimed that Stratford Mine was an existing land use in the area, as a “likely preferred use.”

Justice Preston found,

…that the likely preferred uses, having regard to the land use trends in the vicinity of the Rocky Hill Coal Project, include: agri-business and agriculture; rural dwellings and farm stays; large lot residential dwelling houses; tourism accommodation and tourism operators, including agri-tourism; and residential and non-residential uses associated with the Gloucester township.”

He discounted the contention that mining was a likely preferred use “merely because the Mining SEPP makes it permissible.

Visual Effects

After some disagreement on methodology for assessing” visual impacts” of the mine, it was generally agreed that:

  1. an analysis of the existing visual environment to determine the baseline against which the visual impacts of the proposed mine are to be assessed;
  2. a viewpoint analysis to identify sites likely to be affected by the proposed mine;
  3. an assessment of the extent of the visual impacts of the proposed mine on the viewpoints, including the visual impacts during the life of the mine and, after completion of mining, the cumulative visual impacts of the mine and the night lighting impacts of the mine; and
  4. an assessment of the extent to which the visual impacts are mitigated by the proposed mitigation measures.

In expert evidence:

Mr Wyatt, for GRL, accepted that the high percentage of survey respondents who indicated that they were concerned about the visual impacts of the proposed mine suggested that there was a high degree of sensitivity amongst residents and other persons who responded to the survey.

Mr Moir, for the Minister, similarly considered that survey information of this kind reflected the high value that the community placed in the scenic amenity provided by the landscape surrounding the town of Gloucester.

In relation to scenic quality and rarity, Mr Moir found:

After assessing the landscape character of Gloucester and its setting, it is my opinion that the setting of Gloucester is both unique (rare) and of high scenic quality.

The landscape formations of the dramatic and unusual Bucketts Ranges and furrowed slopes of the Mograni Ranges combined with the mosaic landscape patterns of undulating farmland interspersed with the vegetation of the Gloucester and Avon Rivers as they move towards their junction on the valley floor, involve a combination of landscape elements that cannot be experienced elsewhere in the Gloucester Basin.

These elements would have contributed to the original settlers choosing this location to site the town.”

As to cultural association, Mr Moir found:

It is an emotive and iconic landscape and the juxtaposition of the dramatic Bucketts with the rolling pasture was remarkable enough to feature as the subject of well-known impressionist and leader of the Heidelberg School, Arthur Streeton, and late 18th century Australian artist Thomas Boyd (amongst others).”

Mr Moir “opined” that,

…having regard to the Gloucester Shire Council, Mid-Coast Council and other agency and community submissions, it is clear that the proximity of the proposed mine to the town of Gloucester, and in particular its relationship to key character elements that dominate the setting of the town (i.e. The Bucketts and Mograni Ranges and the Avon River floodplain), is a significant concern for the Gloucester community and a threat to the values that inform their connection with the landscape and sense of place.

The Judge found that the visual effect of the Rocky Hill Coal Project will be high. It will:

…have a high visual contrast with the surrounding landscape, which will not be ameliorated by the amenity barriers or the revegetation of the amenity barriers, permanent overburden emplacements or rehabilitated post mining landforms.”

Both parties agreed that viewers of the project are affected by the project, even when it’s out of sight, by the sense of “cognitive mapping,” whereby people build a mental map of their surrounds. The difference in expert thought was that Mr Moir (for the Minister) stated the perception and view of mining projects is, visually, “generally negative.”

Argument then considered the effect of ongoing earthworks on the character of landscape, and that even the amenity barriers, taking over three years to construct, themselves negated their purpose during lengthy construction. And again, during remedial works at the project’s end (assuming no extensions are applied for – a common feature of open cuts).

Night lighting would also become a form of pollution. Mr Wyatt, for GRL, could but concede:

“[t]here is no doubt that the area surrounding the Mine Area is relatively dark” and that, “[a]ssuming that residents place a value on the dark sky, then the proposed lighting, when activated, would be a change to the existing situation”.

The Department’s Environmental Assessment Report concluded:

Light spill from each of these activities would limit views of the evening sky (ie being able to see the stars) and may account for direct (line-of-sight) lighting impacts as well. The proposed development would have a significant impact in terms of light pollution in the Gloucester Valley, with ambient light from the proposal likely to be intrusive for residents of the Gloucester community who currently experience largely uninterrupted evening skies set in a rural landscape lit only by the moon and stars.

The Department considers that lighting impacts from the amended project would be a factor in reducing the amenity for all residents living near the proposed mine, not just those with a direct line of sight to the mine area.”

The judge ruled that:

The visual impacts of the Project, both by themselves and by reason of the consequential adverse effects on existing, approved and likely future uses of land in the vicinity, and the social impacts that the visual impacts will likely cause, justify refusal of consent for the Project.”

Cultural Association

The landscape of the Gloucester valley has cultural association and importance to Aboriginal people. Although neither Wyatt nor Moir specifically addressed this, Mr Manikas, an Aboriginal man, gave evidence on behalf of the Cook family:

Jack Cook was the last of the traditionally initiated elders from the region in his era prior to the family being displaced from Gloucester. Jack realised with the displacement of the aboriginal people from the area the traditional ways were ending therefore he buried the King Stone on the Bucketts, because it was regarded as ‘the most sacred tribal ground’. This King Stone was similar in significance to Uluru to the local people of Gloucester.

From the King Stone and the initiation routes, the scar trees, burial sites and birthing sites. All these locations are scattered though the Gloucester area and proposed mining site or adjacent to the site. Many cannot be identified due to the sacred nature of the sites. If the mine progresses, all this history will become a mystery to the descendants of Jack and Jessie Cook”

A submission on behalf of Aboriginal elder, Kim Eveleigh, also reflected a deep indigenous connection to country:

We are the Aboriginal people of this land, so don’t you dare ignore us, pay attention and listen as this is our Spiritual connection to our land, we the Gooreengai people belong to the Significa[nt] Buckan Valley in Gloucester it is our past, present and future. If you allow it to be destroyed you cannot fix It, stop it before it begins. Everything from our Ancestors has been removed all we have left is our Dreaming of our land…

This is our land that has a strong spiritual history of the Dreaming, scar trees, grave sites, stories of Elders that dance upon this ground, men, women and family bora rings. …

Along the range there are many birthing water holes and shelters and there were once women’s paintings that were destroyed by Europeans. The valley is a Significant Sacred place as this is our Ancestors daughters birthing and naming area, as they travelled over this part of the land they shared knowledge of our Ancestor’s medicines, hunting and gathering of food, the weaving of fishing baskets while singing to the spirits of the Ancestors…”

Amenity

“Amenity” in this context considered noise and dust, the former difficult to reduce, the latter ameliorated by the use of water sprays, requiring the use of water resource, and adding to salination of soils, depending on the water sourced.

The judge considered the noise impacts of the mine, although not a ground in itself to refuse the development application for the Rocky Hill Coal Project, nevertheless do contribute to adverse social impacts that are a ground for refusal.

He did not find dust pollution a likely factor, or that the mine’s cumulative air quality level was a ground for refusing development, but did concede the residents’ would still suffer concerns about air quality affecting health, and some might leave Gloucester, and/or lead to negative social impacts.

Social Effects

The crux of any mining project near a population centre is always going to give high importance to “social impacts.” This case is no exception.

Justice Preston’s deliberations ran from point number 270 through to the conclusion, item 417, and covered the factors:

Changes to people’s way of life
Changes to people’s community
Changed access to and use of infrastructure, services and facilities
Impact on people’s culture
Impact on people’s health and wellbeing
Impact on people’s surroundings
Impact on people’s personal and property rights
Impact on people’s decision making systems
People’s fears and aspirations
Distributive inequity of the Project

The Social Impact Assessment Guideline (Department of Planning and Environment, 2017) describes a social impact as “a consequence experienced by people due to changes associated with a State significant resource project.” It lists nine key categories those might occur:

  • way of life, including how people live, work, play, and interact.
  • community, including its composition, cohesion, character, how it functions and sense of place
  • access to and use of infrastructure, services and facilities, whether provided by local, state, or federal governments, or by for-profit or not-for-profit organisations or volunteer groups
  • culture, including shared beliefs, customs, values and stories, and connections to land, places, and buildings (including Aboriginal culture and connection to country)
  • health and wellbeing, including physical and mental health
  • surroundings, including access to and use of ecosystem services, public safety and security, access to and use of the natural and built environment, and its aesthetic value and/or amenity
  • personal and property rights, including whether their economic livelihoods are affected, and whether they experience personal disadvantage or have their civil liberties affected
  • decision-making systems, particularly the extent to which they can have a say in decisions that affect their lives, and have access to complaint, remedy and grievance mechanisms
  • fears and aspirations related to one or a combination of the above, or about the future of their community.”

Following exhaustive submissions by a range of experts with supporting or opposing research, the judge concluded as follows.

  1. The Rocky Hill Coal Project will cause a variety of negative social impacts, many of which are likely to have a high or extreme social risk rating. These negative social impacts will not be able to be mitigated or managed. The mitigation measures proposed by GRL, in the Social Impact Assessment and elsewhere, lack clear connection with the key social impacts likely to be caused by the Project and hence will not be effective in mitigating these social impacts.
  2. GRL, the Social Impact Assessment and Dr Ryan have identified positive social benefits associated with the Project, mostly regarding boosts to the local economy and employment and concomitant social benefits. But the evidence establishes that there will be significant negative social impacts.
  3. I find that the Project will have significant negative social impacts on people’s way of life; community; access to and use of infrastructure, services and facilities; culture; health and wellbeing; surroundings; and fears and aspirations. The Project will also cause distributive inequity.
  4. I find that, although the Project has the potential to generate some positive social benefits, including from the local economy and employment, these benefits will be outweighed by the significant negative social impacts that the Project will cause. The significant net negative social impacts are a justification for refusing consent to the Project.
Economics

Considering the economic and public benefits of the mine, Justice Preston agreed with The Department that the benefits of the project are uncertain (“overwhelmed by uncertainty from coal price volatility”) and in any event were substantially overstated. Worker benefits, employment income, and supplier benefits figures were tenuous and modelling “shrouded in uncertainty.”

For environmental, social, and transport related costs, Justice Preston found GRL expert had adopted…

…a zero cost for the impacts that the DAE 2016 report had assessed qualitatively to biodiversity, traffic and transport costs, water (surface and groundwater), Aboriginal heritage, non-Aboriginal heritage and visual amenity.”

Throughout his assessment of the project’s cost-benefit analysis, the judge repeatedly dismissed GRL’s Brown Report figures as either “flawed,” “deficient,” “grossly overestimated,”” overstated,” ”uncertain,” “incorrectly compared,” “plainly wrong,” and “sought to inflate.”

Climate Change

Justice Preston began his environmental assessment with Gloucester Groundswell’s contention that

…the Rocky Hill Coal Project should be refused because the greenhouse gas (GHG) emissions from the Project would adversely impact upon measures to limit dangerous anthropogenic climate change.

The effects of carbon in the atmosphere arising from activities in the Project site, and the burning of the coal extracted from the mine, are inconsistent with existing carbon budget and policy intentions to keep global temperature increases to below 1.5º to 2º Celsius (C) above pre-industrial levels and would have a cumulative effect on climate change effects in the long term.

…in light of that substantial planning harm, and the critical importance of combatting climate change now, the Project should be refused.”

The Rocky Hill Coal Project will cause, directly and indirectly, emissions of greenhouse gases (GHGs). The most significant GHGs will be carbon dioxide (CO2) and methane (CH4).

Different gases have different greenhouse warming effects (referred to as global warming potentials) and emission factors take into account the global warming potentials of the gases. The estimated emissions are referred to in terms of CO2 equivalent (CO2-e) emissions.”

Direct GHG emissions are emissions that occur from sources that are owned or controlled by the reporting entity. Direct GHG emissions are principally the result of the following types of activities undertaken by an entity:

  • Generation of electricity, heat or steam. These emissions result from combustion of fuels in on-site stationary sources;
  • Physical or chemical processing. Most of these emissions result from manufacture or processing of chemicals and materials (e.g. the manufacture of cement, aluminium, etc.);
  • Transportation of materials, products, waste and employees. These emissions result from the combustion of fuels in entity owned/controlled mobile combustion sources (e.g. trucks, trains, ships, aeroplanes, buses and cars);
  • Fugitive emissions. These emissions result from intentional or unintentional releases (e.g. equipment leaks from joints, seals, packing and gaskets); CH4 emissions from coal mines and venting; hydrofluorocarbon emissions during the use of refrigeration and air conditioning equipment; and CH4 leakages from gas transport.” (Air Quality and Health Risk Assessment, p 2A-157).

GRL did not contest that climate change is real and happening and that anthropogenic GHG emissions must be reduced rapidly in order to meet the internationally agreed temperature targets of 1.5ºC or 2ºC. GRL did, however, contest that the Rocky Hill Coal Project needs to be refused in order to achieve these temperature targets.

Nor was the argument of “no new coal mines, anywhere” required by any international agreement (the Climate Change Convention or the Paris Agreement) or Commonwealth or State law.

GRL also argued that “ a country that is a party to the Climate Change Convention and the Paris Agreement is to account for GHG emissions in its country, but not in other countries.”

GLR rejected ‘carbon budget approach’ demands that new coal mines generally, and the Rocky Hill Coal Project in particular, should not be approved.

Arguments then became rather esoteric, with GRL’s Dr Brian Fisher disputing with EDO’s Professor Steffen various issues concernting “carbon budget” and “principles of efficiency in abatement.”

GRL finally made a strong case for Rockhill’s coking coal, and the international shortage and high demand for coking coal for steel production. The case, and its figures, were challenged by analyst Tim Buckley:

In my opinion, technology change and market forces enhanced by energy policy changes are highly likely to combine to create demand substitution, curtailing demand and hence prices for coking coal consistent with or in-excess of the 40% global decline forecast by the IEA, with a consequent material adverse impact on the project.” (Buckley report, [161]).”

Fisher and Steffen went head to head once more on the idea that economic, social and environmental rationales for banning development of individual coal mines on the basis of GHG emission are poor, that Australian coal mines operate to some of the highest environmental standards in the world, that Australian coking coal is amongst the highest quality in the world, and that local benefits (employment, etc.) trump uncertain long-term impacts of the mine’s carbon emissions.

Professor Steffen responded:

These points are irrelevant. There is no room for any new fossil fuel development. The challenge is to rapidly and deeply reduce emissions from existing fossil fuel industries and activities.”

Justice Preston then spent a lengthy portion of his deliberation on the importance of including – not overlooking – indirect, downstream (and upstream) GHG emissions, citing and extensively quoting a long list of research and Australian and internation court findings.

He therefore found that the consideration of the impacts of the Project on the environment and the public interest justify considering not only the Scope 1 and Scope 2 emissions but also the Scope 3 emissions of the Project.

All of the direct and indirect GHG emissions of the Rocky Hill Coal Project will impact on the environment.

All anthropogenic GHG emissions contribute to climate change. As the IPCC found, most of the observed increase in global average temperatures is due to the observed increase in anthropogenic GHG concentrations in the atmosphere.

The increased GHG concentrations in the atmosphere have already affected, and will continue to affect, the climate system.”

GRL contended the Rocky Hill Coal Project (RHCP) would not cause the carbon budget to be exceeded, citing four reasons:

  1. reductions by other sources
  2. reductions should occur where they count most
  3. the market would find other sources anyway
  4. emissions justified by coking coal for steel production

The judge rejected each of these assertions.

  1. This reason is speculative and hypothetical. There is no evidence before the Court of any specific and certain action to “net out” the GHG emissions of the Project.
  2. Where the development will result in GHG emissions, the consent authority must determine the acceptability of those emissions and the likely impacts on the climate system, the environment and people. The consent authority cannot avoid this task by speculating on how to achieve “meaningful emissions reductions from large sources where it is cost-effective and alternative technologies can be brought to bear”
  3. Carbon leakage aside, the market substitution argument is also flawed. There is no certainty that there will be market substitution by new coking coal mines in India or Indonesia or any other country supplying the coal that would have been produced by the Project. The US Court of Appeals held that the US Bureau of Land Management (BLM) acted arbitrarily and capriciously in concluding that there was no real world difference between issuing the coal leases and declining to issue them because the third party sources of coal would be perfectly substituted for any volume of coal lost on the open market should the BLM decline to issue the leases (at 1233). It also held that “the assumption itself is irrational.”
  4. GRL overstates this argument. It is not necessary to approve the Project in order to maintain steel production worldwide. The GHG emissions of the Project cannot therefore be justified on the basis that the Project is needed in order to supply the demand for coking coal for steel production.
In Conclusion

In the case of the Rocky Hill Coal Project, the aggregate GHG emissions over the life of the Project are sizeable, although the Project is not one of the largest coal mines in Australia. The Minister noted that the proposed production of the Rocky Hill mine appears to be about a third of the production of the average coal mine in NSW (Minister’s closing submissions, [423]).

Refusal of consent to the Project would prevent a meaningful amount of GHG emissions, although not the greater GHG emissions that would come from refusal of a larger coal mine.

However, the better reason for refusal is the Project’s poor environmental and social performance in relative terms.

As I have found elsewhere in the judgment, the Project will have significant and unacceptable planning, visual and social impacts, which cannot be satisfactorily mitigated. The Project should be refused for these reasons alone.

The GHG emissions of the Project and their likely contribution to adverse impacts on the climate system, environment and people adds a further reason for refusal. Refusal of the Project will not only prevent the unacceptable planning, visual and social impacts, it will also prevent a new source of GHG emissions.

I do not consider the justifications advanced by GRL for approving the Project, notwithstanding its GHG emissions, are made out, for the reasons I have given earlier.

In short, 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.

These dire consequences should be avoided. The Project should be refused.

References

https://www.rockyhillproject.com.au/

https://rockyhillproject.com.au/wp-content/uploads/2016/09/1.1-Locality_-1.jpg

https://www.edonsw.org.au/gloucester_climate_win

https://www.caselaw.nsw.gov.au/decision/5c59012ce4b02a5a800be47f#_Toc431186

https://www.groundswellgloucester.com/coal/rocky-hill.html

Pictured immediately below:

Land use by colour. Pale blue = GRL acquisition; pale yellow = crown land ~  image credit Gloucester Resources Ltd.

Pictured further below:

* Project stages viewed from Grantham Road ~ image credit Gloucester Resources Ltd.
* Locality Plan ~ image credit Gloucester Resources Ltd.
* Gloucester road sign ~ Image credit Jeremy Buckingham MP



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