A nonprofit group implores new federal environment minister Tanya Plibersek to review the climate change impacts of 19 fossil fuel projects currently awaiting approval, relying on a legal provision rarely used which will force him to reconsider the conclusions of his predecessors.
The Minister will be obliged to confirm or revoke previous decisions that fossil fuel projects – which propose to extract new coal or gas – are not likely to have a significant impact on protected species and places in the world. ‘Australia.
The group that issued the 19 demands, the Environment Council of Central Queensland, says the projects will contribute to climate change. This will in turn harm endangered and migratory species, wetlands, heritage sites and marine areas protected by Australia’s environmental law, the EPBC Act.
So what makes this intervention important?
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The environment changes rapidly
The legal term for the type of request issued by the Environmental Board is a “Request for Reconsideration”. Under Section 78A of the EPBC Act, reconsideration requests depend on “substantial new information”.
Here it includes the latest climate science and evidence on how Australian species and places are responding to climate change.
For example, the situation for a species like the southern Eyre Peninsula emu, whose habitat has been decimated by bushfires, is worse than it was a few years ago. barely, which makes any further impact more significant.
Likewise, 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.
The environment council and its team maintain that essentially everything matters protected under the EPBC Act are vulnerable to the effects of fossil fuel projects, not just species and areas near mine sites.
Their logic is that every project that unearths new fossil fuels to extract and burn over a long period of time will make a significant contribution to climate change. As we move towards net zero emissions, every tonne of emissions counts.
In turn, climate change will have a significant impact on Australia’s heritage and biodiversity. The environment board wants to make sure this is taken into account in any final approval decision.
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What happens now?
Now that the requests have been made, the minister is legally obliged to reconsider the projects in light of climate change.
If the minister confirmed previous decisions that there are unlikely to be significant impacts on protected species and places, despite new information, it can go ahead and approve or reject projects based on the information it has already. However, this could then be challenged in Federal Court.
So what could the court say? Would he find climate-related impacts on protected species and places relevant to fossil fuel approvals?
This depends on the interpretation of the key terms ‘likely’, ‘significant’ and ‘impact’.
Under EPBC law, the word “probable” means “a real and not remote chance or possibility”. This does not equate to a probability greater than 50%.
“Impact” may include an indirect impact, which could occur at a different place and time of the project, including in the future. An impact does not need to be entirely caused by a project to be relevant.
That said, there has not yet been an authoritative judicial interpretation of the definition of this term. This means that we do not know whether the court would find that climate-related impacts on biodiversity and heritage are impacts of fossil fuel projects. No doubt he certainly could.
What we do know is that the word “significant” requires courts to consider the context of an impact. The context here is an extinction crisis that is exacerbated by a climate crisis.
If the Minister decides that the projects are likely to have a significant impact on Australia’s endangered species and protected places, she revoke the original decisions. This would trigger a process to obtain enough information to better inform a final approval decision.
What does this mean for the law and for future approvals?
The EPBC Act came into effect more than two decades ago, without any reference to climate change. Yet this is the law we have to protect the environment.
Acknowledging that fossil fuel projects are likely to harm Australia’s environment would mean that climate change would have to be taken into account for new extraction proposals in the future.
Specifically, the fate of endangered 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 should be aware of the large-scale impacts on biodiversity and heritage.
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Regardless of the end result, this challenge will help elucidate a potential link between the EPBC Act and climate change.
This includes clarifying the liability of fossil fuel projects for climate-induced damage to the environment, now that climate change is well and truly manifest.