The recent High Court decision on the Mount Pleasant coalmine in the Upper Hunter Valley of New South Wales has triggered a wide political, industry and media response, most of which has been wildly inaccurate, grossly overstated and just plain wrong.
This is hardly unusual: a fiery and ill-informed debate blows up whenever climate science is mentioned. Battlelines are drawn, facts dissolve. There is a separate problem here, however: the rhetoric is distracting us from three serious challenges we are facing as a community.
I will come to those three problems later, but let’s start with a proper analysis of what the case was about and what the High Court did and did not do.
The case was about an application to enlarge Mount Pleasant’s operations by extending the life of the mine by 22 years and doubling its annual production. The proponent, MACH Energy, is a mining giant based in Indonesia. Its opposition came from concerned locals organised under the acronym DAMSHEG, for Denman Aberdeen Muswellbrook Scone Healthy Environment Group Inc.
Given the size and significance of the project, the proposal was referred to the Independent Planning Commission (IPC), set up by the NSW government in 2018 to cast an independent and expert eye over important planning decisions. One of the key stimulants for the commission was an intention to remove the planning corruption that had infected NSW politics at a high level.
The IPC was obliged to apply a statute that required consideration of three types of greenhouse gas emissions – Scope 1, 2 and 3 emissions. The law required the IPC to impose control conditions on any approval “to ensure emissions are minimised to the greatest extent practicable”. The case turned on the adequacy of the IPC’s consideration of the consequences and control of Scope 3 emissions, which made up 98 per cent of the project’s emissions.
Scope 3 emissions are “indirect emissions which are generated in the wider economy”, extending to emissions generated when the coal is burnt overseas. This raises broader implications of anthropogenic global warming. An environmental impact statement was prepared and calculated that the Scope 3 emissions from Mount Pleasant would represent adding 0.065 per cent to global emissions against a baseline from 2017. For context, this is close to Denmark’s total national emissions in 2024.
DAMSHEG made submissions to the IPC on Scope 3 emissions controls but the IPC did not accept them – the Mount Pleasant proposal was approved.
DAMSHEG then sought judicial review – a highly technical legal challenge available in limited circumstances that does not include an investigation into the merits of a proposal. In other words, the legal challenge was never about the wider issue of global warming.
A trial judge declined DAMSHEG’s challenge, but the NSW Court of Appeal allowed it. MACH took the matter to the High Court of Australia.
Five judges sat on the appeal. The result was divided, but the common ground was significant. All of the judges agreed it was not necessary or appropriate to address the broader arguments around global warming; all agreed it was not necessary or appropriate to address the 0.065 per cent calculation; none gave any consideration to the environmental or economic merits of the Mount Pleasant proposal or coalmining generally.
The High Court’s decision was an entirely orthodox, exquisitely technical legal application of the most basic aspect of judicial review – had the administrative decision-maker complied with the terms of the statute? A majority of the judges held the IPC had failed in this respect by giving insufficient consideration to the imposition of controls.
Murray Watt rushed to calm nerves by pointing out that federal laws did not require that consideration be given to Scope 3 emissions – which seems an odd boast. Watt seemed proud, or perhaps relieved, that his government did not need to be troubled by concerns over global warming.
This does not mean the High Court has terminated MACH’s proposal: the effect of the decision is that the proposal will return to the IPC for further consideration. It could mean additional controls are imposed over the Scope 3 emissions, but that will ultimately be a matter for the IPC.
In other words, the decision has no widespread effect: the decision does not create a precedent regarding the consideration of global warming and it does not preclude permission for other coalmines. All it does is set aside one flawed decision made under a NSW statute.
That has not been reflected in the response. There has been the most astonishing misunderstanding of the decision. Headlines described the decision as “landmark”, “groundbreaking”, “first-of-its-kind” and (my favourite) “seismic”. Politicians and lobby groups and lawyers spouted opinions before reading the judgement (you might sympathise with this – the decision is 111 pages). Just as many environmentalists have acclaimed the pervasive benefits of the decision as coal lovers have condemned it as catastrophic.
The political response has been nutty. Nationals Senator Matt Canavan promised not to “let activists destroy Australia with their ideology” (it is not clear if he was referring to the DAMSHEG retirees or the High Court). One Nation in NSW promised to scrap the IPC and place all the power back into the hands of ministers (troubling given the IPC was implemented to fight ministerial corruption). Queensland Premier David Crisafulli vowed to make his state’s laws “even more bulletproof” if necessary to ensure his remained Australia’s most “pro-mining government”. On the other side, the NSW Greens said “lawyers should be running to the courts right now with this judgement in hand, ready to stop coal approvals in their tracks”.
The response of the Australian Labor Party has been equally odd, which I will detail below.
The lobbyists pushed the panic button hard. The chief executive of the Minerals Council of Australia, Tania Constable, claimed the decision “would send shudders down everybody’s spine” (well, not mine) and it had “sparked a renewed push by anti-mining activists to shut down mining across Australia”. She added that its effect “will inevitably spread to other commodities and wealth-generating sectors like agriculture and data centres” (reminiscent of the panicky response to Mabo).
This is the response to a decision in which an administrative body was corrected and instructed to apply the law. Why is that controversial? Obedience to the law is the cornerstone of the rule of law – the law applies equally to protect Goliath, just as it might occasionally protect David. Everyone – progressives and conservatives alike – should be elated with a judgement like that.
I now wish to look at those three matters where there is a clear challenge presented by this episode – strangely, not because of the High Court’s decision but rather because of the unhinged response to it. When you think of them together, you will see they are linked – and it is not easy to discern cause from effect.
The first problem is the influence mining companies and lobbyists hold over our politicians. By influence, I really mean money.
The money at stake is substantial. Research by the Centre for Public Integrity has shown that, in real terms, the Minerals Council of Australia has given nearly $1.5 million to Labor and the Coalition in the past eight years. That is just one mining donor. Meanwhile, it seems to be a matter of pride for One Nation that its financial backbone has been supplied by a mining billionaire.
Labor’s role has been quite pathetic, a subject to which I will return. Remember when the ALP and the miners were arch enemies? Remember the failed attempt to introduce a Minerals Resource Rent Tax? Well, when the donation money started to flow (not the tax revenue, which was never legislated), the ALP seemed to think it was time to climb down from its high horse and into Big Mining’s bed.
The second problem is the fragile future of public interest litigation, of which the Mount Pleasant case is a classic example.
Public interest litigation is not just environmental litigation. It extends into any number of aspects of ordinary life. It is a sign of a healthy democracy and has a role in preserving, protecting and even expanding our rights. It takes courage. Those Davids brave enough to take on the Goliaths are putting everything on the line. It should be fostered, not discouraged.
Others strongly disagree. In its media release after the decision, the Coalition singled out “radical green activists enabled by Labor”. Canavan warned of lawyers using “legal tricks” (well, that is their job) and promised to “claw back federal funding from the Environmental Defender’s Office” (apparently unaware that the EDO was not involved in the case). Meanwhile, the Minerals Council complained about “lawfare by activists” who “game the legal system” and added that projects would be “dragged into a swamp of endless legal challenges by well-funded activists” (imagine the miners complaining of well-funded opposition).
These fears are fabricated. Public interest litigation is not a “game”. Decisions to litigate are taken carefully. Those involved face massive costs. Claims that make it through to hearing are strong claims, appropriately made. For example, DAMSHEG was fully vindicated.
The third problem is the general lack of support the protection of the environment has among our politicians. Perhaps this is just a reflection of the high esteem our politicians hold for mining billionaires.
The hostility of the Coalition and One Nation towards climate action and related environmental protections is long-established. Labor, at least historically, seemed sympathetic to the environment. Those days are gone. The ALP is now unapologetically in the camp of mining and the fossil fuel industry.
Look at Labor’s response to the Mount Pleasant decision, the final point to which I am returning.
Environment Minister Murray Watt rushed to calm nerves by pointing out that federal laws did not require that consideration be given to Scope 3 emissions – which seems an odd boast. Watt seemed proud, or perhaps relieved, that his government did not need to be troubled by concerns over global warming. Watt made his statement at the same moment Australian leaders were at the Pre-COP meeting pretending to be concerned about the impact of climate change on the Pacific Islands.
Then there was the contribution by NSW’s Labor premier, Chris Minns: “I don’t think activists considering court action should get overexcited.” That simple statement carries so much prejudice. According to Minns, concerned locals are “activists”. Why was Minns labelling the environmentalists as the bad guys?
The truth is that the present-day Labor Party is no friend of the environment; the best it can claim is that it is a little bit less of an enemy to the environment than the Coalition or One Nation.
The Grata Fund provided some limited disbursement funding to the litigants in the Mount Pleasant case. Geoffrey Watson was not involved in that decision.