Living Wonders appeals wrap up
A message from ECoCeQ
The members of the Environment Council of Central Queensland – grandparents, divers, nature lovers, young people and community advocates – would like to thank everyone who supported their game-changing climate cases so far.
This is vital public interest litigation.
The outcome of these court cases could impact dozens of new fossil fuel projects awaiting approval on the Minister’s desk.
What happened in court?
The Living Wonders climate cases are complex, novel, public interest litigation, based on evidence of climate harms to thousands of threatened animals, plants and places across this continent. ECoCeQ’s barrister acknowledged this complexity early in the hearing: “if there’s complexity because of the scale, it’s because of the scale of the threat.”
Here's a recap of the Living Wonders appeals.
ECoCeQ's grounds for appeal
The hearings kicked off with ECoCeQ’s barrister outlining their five grounds for appeal.
The Living Wonders cases are a ‘judicial review’ – which means they involve a judge (or multiple judges) reviewing whether the Minister’s made a decision properly, in accordance with the law (rather than whether it was the right decision). This means the litigation can often focus on specific, technical parts of a decision, and highly nuanced legal argument.
In their first ground, ECoCeQ argued the Environment Minister’s use of market substitution reasoning to refuse to reassess two huge new coal mines for their climate harm was unlawful.
Market substitution reasoning – also called the ‘drug dealer’s defence’ – in its most basic form, argues that if these two companies don’t go ahead and dig up this coal, other companies will dig up other coal – and the same amount of greenhouse gas emissions will occur anyway.
Fossil fuel companies often use this argument to deflect responsibility for the harm that coal and gas is doing to our environment.
ECoCeQ argues that using ‘market substitution reasoning’ is not a legally permissible way for the Environment Minister to approach that task.
In their second ground, ECoCeQ argued the Minister asked herself the wrong question when she considered the impacts of the coal mines.
They argued the Minister, because of how the current law is written, needed to consider whether it was ‘likely’ the mines would cause climate harm. Instead, she asked whether climate harm ‘will’ be caused by the emissions from these mines.
ECoCeQ argues this distinction between ‘will’ and ‘likely’ is critical in light of the evidence in this case. While climate harms are already being felt across Australia, the global scientific community is clear the decisions our governments are yet to make will determine the severity of future climate harm on our living wonders.
With all that is at stake, ECoCeQ argued ignoring the risk of ‘likely’ harm in favour of certain harm is inappropriate.
For their third ground, ECoCeQ argued the Minister’s decision was legally irrational when she found there would be no ‘net increase’ in emissions from the mines because, following the market substitution argument, other coal would be dug up elsewhere if not here.
In climate science, there are many different versions of the future that could feasibly happen – but it’s impossible to know exactly what will happen in the future.
Therefore, according to ECoCeQ, the Minister’s finding was irrational because she simply cannot assume with certainty the same amount of coal and emissions would be created elsewhere if not through these two projects.
ECoCeQ’s fourth ground was about an expert report that was ruled irrelevant to their arguments by the first Federal Court judge last year.
The report was about climate science and modelling future scenarios. ECoCeQ argued it is relevant to their third ground, because it sets out why it is impossible to know which possible future emissions and climate scenarios are more likely than others.
In their fifth and final ground, ECoCeQ argued the Minister applied the law incorrectly when she decided the climate harm from the proposed mines would not cause ‘substantial’ harm to protected animals, plants and places.
The Minister compared the emissions that would be produced by each mine to total global emissions at a single point in the past, and in this context concluded the emissions from the mines would be ‘very small.’
ECoCeQ argues this approach was irrational because it does not consider future scenarios where global emissions are reduced significantly. Were the emissions of these mines compared to total global emissions at a point in the future, in a context where emissions have significantly lowered, these two mines would then make a significant contribution to the climates harm impacting protected species and places.
Opposing arguments
On the second day, the legal teams for the Environment Minister and coal companies – who joined the litigation to defend the Minister – presented their opposing arguments.
Lawyers for the coal mining companies argued the Minister followed exactly what she was supposed to do, according to our current environment laws.
They also reiterated their argument that the Minister’s market substitution approach did comply with the law. For a project's emissions to be considered an ‘indirect impact’, our current environment law requires the project to be a ‘substantial cause’ of climate harm on protected animals, plants and places.
The mining companies argued their projects would not be a substantial cause of climate harm, and that this justified the Minister taking a market substitution approach to her decision.
According to the mining companies, the Minister was allowed to imagine a world in which these coal projects did not go ahead but others elsewhere did – meaning there would be no ‘net increase’ in emissions.
The Environment Minister’s legal team then presented their arguments. They, too, argued the Minister applied the current law correctly. They also argued that while the Minister agrees each coal project would indirectly contribute to climate harm impacting protected animals and plants, she does not believe each mine would be a substantial contribution.
What next?
ECoCeQ’s legal team closed off the Living Wonders appeals with a few final submissions responding to the mining companies and Environment Minister’s arguments.
Now, ECoCeQ waits for the decision.
Who is ECoCeQ?
The Environment Council of Central Queensland (ECoCeQ) is a small environment group acting as a voice for the environment in the region and elsewhere.
More of our work on climate justice
Rest superannuation climate case
We represented a 23-year-old taking a $50 billion super fund to court over climate change
17-year old versus Clive Palmer’s mine
We represented a young snorkel guide opposing Clive Palmer’s coal mine.
Young people’s human rights complaint
We represented five brave young people lodging a trio of human rights complaints with the UN over climate inaction.
