Press Release - October 26, 2023

Court asked to reject drug dealers’ defence as appeals lodged in landmark Living Wonders climate cases

26 October 2021

The Living Wonders climate cases have been appealed to the Full Federal Court to prevent Environment Minister, Tanya Plibersek, from approving two huge coal mines in NSW, without considering their climate impacts first. 

The appeals, filed by the Environment Council of Central Queensland (ECoCeQ), represented by Environmental Justice Australia, challenge the Environment Minister’s refusal to properly assess the climate impact of two huge new coal mines in NSW: Narrabri and Mount Pleasant. 

Earlier this month, Justice Shaun McElwaine dismissed the Living Wonders climate cases – the first court challenges to a coal or gas decision made by Australia’s current Environment Minister.   

When Minister Plibersek assessed the harm of these coal mines, and when she defended her decisions in the Federal Court, she used what is known as the “market substitution” argument or “drug-dealers’ defence”, as well as “drop in the ocean” logic. 

This argument is based on a simple, but ECoCeQ argues, deeply flawed premise that allows companies to knowingly contribute to harm: if we didn’t supply the coal, another company would, so the harm of our product doesn’t matter. 

The market substitution or drug dealers’ defence has been categorically rejected in several jurisdictions around the world and recently in the Queensland Land Court.   

The International Energy Agency is unequivocal: “there can be no new investments in oil, gas and coal, from now – from this year” because the development of “new oil and gas fields is incompatible with limiting warming to 1.5C.   

For more information visit Living Wonders

President of the Environment Council of Central Queensland, Christine Carlisle said: 

“We are asking the courts to require Australia’s Environment Minister comply with the law – and with climate science – and look before she leaps into approving mines that will fuel climate harm for decades to come.   

We’re a tiny volunteer group and we wish we didn’t have to take our federal government to Court to protect our environment from climate harm.   

The stakes couldn’t be higher – right now there are dozens of new coal and gas plans awaiting approval on the Minister’s desk. 

If Australia’s Environment Minister truly believed in science-based decision making, she would take her blinkers off and urgently act on the climate harm from new coal and gas.  

For years mining companies and governments have rolled out the drug dealers’ defence to deflect responsibility for the climate harm of new coal and gas.   

The drug dealers’ defence is a dangerous logic that we say is out of step with the law, with science and with public expectations. 

The Minister’s refusal to scrutinise climate risk means she did not do her job. Her failure to act was legally irrational and unlawful.“   

Lawyer and Co-CEO of Environmental Justice Australia, Elizabeth McKinnon said:

“Australia’s Environment Minister has interpreted the law in a way that’s stopping her from scrutinising the climate harm of new coal and gas projects on her desk. Our client believes this approach is irrational, illogical and unlawful. 

Our client has filed these Federal Court appeals because, with the greatest respect, they believe the Federal Court Judge made the wrong decision.  

We are also waiting on the Minister to confirm she will not rush to approve these coal mines before these Court cases are determined.   

Climate change is the biggest threat our environment faces. The science is clear. The Minister and the Court‘s initial decision do not contest the science. 

Our client argues that our current environment laws require the minister to protect our environment from harm, and it is irrational, illogical and unlawful to refuse to look at climate harm.“ 

The mines: 

Mount Pleasant would become the largest producing coal mine in Australia, three times larger than the Adani coal mine approved by the Morrison Government. 

Plans by MACH Energy to extend the Mount Pleasant coal mine until almost 2050 are also subject to another legal action in the NSW Land and Environment Court on 10 November 2023. 

The evidence presented in Court painted a devastating picture of the climate impact of the Narrabri mine, which would potentially fuel 259 million tonnes of greenhouse gas emissions to 2045.   

Locally, it would also destroy 500 hectares of critical habitat for endangered koalas. 

If you have a media enquiry, please call or email Jem Wilson on (03) 8341 3110 or [email protected]