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20 Feb 2019

Tim Power, White & Case LLP

"Wrong place...wrong time" - Key implications of the Gloucester coal mine decision

What happened?

The Chief Judge of the NSW Land and Environment Court in Australia has upheld the decision of the NSW Minister for Planning's delegate to refuse planning approval for the proposed Rocky Hill Coal Project near the town of Gloucester.

 Why is it important?

The Court's decision is, as far as we are aware, the first time an Australian project has been refused on the basis that it will "increase global total concentrations of greenhouse gas (GHG) at a time when what is urgently needed…is a rapid and deep decrease in GHG emissions."

The climate change aspect of the Court's decision has understandably been the subject of most of the media interest in Australia. Even if the case isn't appealed, its approach is likely to be the springboard for legal challenges to other resource, energy and industrial projects around Australia, and possibly elsewhere given the extent to which the judgement draws on overseas and international judicial precedent. As touched on in this newsletter, one key unresolved issue is how the approach taken by the Court would apply to other projects with direct and indirect GHG emissions, in particular future fossil fuel developments.

However, it would be a mistake to dismiss it solely as a "climate change case" and ignore its consideration of broader environmental and socio-economic impacts, especially as the project was also refused on these grounds. The analysis of these issues could have broader implications for the assessment of resource and energy projects throughout regional Australia...

Part of the following timelines

Australia: Court dismisses Gloucester Resources' appeal re rejection of coal mine, on climate change grounds

Gloucester Resources lawsuit (re mine’s impact on climate change, Australia)