Mon Jul 11

why the environment minister is being forced to reconsider climate-related impacts of pending fossil fuel approvals

Written by: Laura Schuijers, Deputy Director, Australian Centre for Climate and Environmental Law and Lecturer in Law, University of Sydney

A non-profit group is imploring the new federal environment minister Tanya Plibersek to consider the climate change impacts of 19 fossil fuel projects currently pending approval, drawing on a rarely used legal provision that will require her to reconsider the findings of her predecessors.

The minister will be forced to either confirm or revoke previous decisions that the fossil fuel projects ^[1] – which propose to extract new coal or gas – aren’t likely to have a significant impact on Australia’s protected species and places.

The group that issued the 19 requests, the Environment Council of Central Queensland, argues the projects will contribute to climate change. This will, in turn, harm the threatened and migratory species, wetlands, heritage sites, and marine areas protected under Australia’s environmental law, the EPBC Act ^[2].

So what makes this intervention important?

The environment is changing rapidly

The legal term for the type of request issued by the environment council is a “reconsideration request”. Made under section 78A ^[4] of the EPBC Act, reconsideration requests depend on “substantial new information”.

Here, this includes the latest climate science ^[5] and evidence about how Australian species and places are responding to climate change.

For example, the situation for a species like the Eyre Peninsula southern emu-wren, whose habitat has been decimated by bushfire ^[6] is more dire than it was just a few years ago, making any new impact more significant.

Similarly, the Great Barrier Reef has now suffered its fourth mass bleaching event since 2016. Further climate change could bring this iconic ecosystem closer to collapse ^[7].

The 2019-2020 bushfires razed habitats of many threatened species. AAP Image/Dean Lewins

The environment council and its team argue that essentially all matters protected under the EPBC Act are vulnerable to the effects ^[8] of fossil fuel projects, not just species and areas next door to mine sites.

Their logic is that every project unearthing new fossil fuels to be extracted and burned over a long period of time will make an important contribution to climate change. As we transition toward net-zero emissions, every tonne of emissions counts.

In turn, climate change will significantly impact Australia’s heritage and biodiversity. The environment council want to make sure this is factored into any final approval decision.

What happens now?

Now the requests have been made, the minister is legally obliged to reconsider the projects in light of climate change.

If the minister confirms the previous decisions that there aren’t likely to be significant impacts on protected species and places, despite the new information, she can go ahead and approve or reject the projects based on the information she already had. However, this could then be challenged in the Federal Court.

So, what might the court say? Would it find that climate-related impacts to protected species and places are relevant to fossil fuel approvals?

This depends on the interpretation of key terms “likely”, “significant”, and “impact”.

Under the EPBC Act, the word “likely” means ^[10] “a real and not remote chance or possibility”. It doesn’t equate to a probability over 50%.

“Impact” can include an indirect impact ^[11], which might occur at a different place and time to the project, including in the future. An impact doesn’t have to be wholly caused by a project to be relevant.

That said, there hasn’t yet been an authoritative judicial interpretation of the definition of this term ^[12]. This means we don’t know if the court would find that climate-related impacts to biodiversity and heritage are impacts of fossil fuel projects. Arguably, it certainly could.

What we do know is that the word “significant” calls for the courts to consider the context ^[13] of an impact. The context here is an extinction crisis ^[14] that’s being exacerbated by a climate crisis ^[15].

New federal environment minister Tanya Plibersek. AAP Image/Mick Tsikas

If the minister does decide the projects are likely to significantly impact Australia’s threatened species and protected places, she’ll revoke the original decisions. This would trigger a process to procure sufficient information to better inform a final approval decision.

What does this mean for the law and for future approvals?

The EPBC Act came into force more than two decades ago, without any reference to climate change. Yet, it’s the law we’ve got to protect the environment.

Recognising that fossil fuel projects are likely to harm the Australian environment would mean climate change would need to be taken into account for new extraction proposals in future.

Specifically, the plight of threatened species and protected places would be broadly relevant to all final coal and gas approval decisions. The minister could still approve new projects, but she’d have to be mindful of the broad-ranging impacts to biodiversity and heritage.

Whatever the ultimate result, this challenge will help elucidate a potential link between the EPBC Act and climate change.

This includes clarifying the responsibility fossil fuel projects have over climate-related harm to the environment, now climate change is well and truly manifest ^[17].