Court in the act

Our court system is not the right arena for climate change activism. By Nick Cater.

One of the most useful things Australia can do to help contain Vladimir Putin is to ship coal to Ukraine and its neighbour, Poland, which currently rely on Russia to keep the lights burning.

The gift of 70,000 tonnes of Whitehaven thermal coal to Ukraine, supported by the Australian government, along with a growing package of sanctions against Russia signals our intentions. Yet it is proving harder than it should be to source the coal Ukraine and Poland require to get through the next winter.

Australian coalmines have little capacity to spare and our ports are clogged. The Port of Newcastle is running at 93 per cent capacity and the last attempt to add extra coal loaders died four years ago after a relentless campaign by activists who should be hanging their heads in shame.

Their mission to shut down the Australian coal industry and obstruct the development of gas has strengthened the hand of a tyrant who cares less for the environment than he does for the welfare of children huddled in the basement of a pulverised theatre in Mariupol. For the West, the target of net-zero emissions in 2050 is a challenge. For Putin it is an opportunity to bring the West to heel while enriching himself and his favoured oligarchs.

Europe’s energy crisis would have been Australia’s opportunity too were it not for the orchestrated campaign to block the development of energy resources. The protracted saga of Whitehaven’s Vickery Coal Extension near Gunnedah, NSW, illustrates the power of an unaccountable and opaque clique to usurp the national economic interest.

Whitehaven Coal submitted its application to expand its mine 25km from Gunnedah six years ago. It was approved by the NSW Independent Planning Commission in 2020 and might now be up and running, perhaps even feeding coal ships heading for the coal terminal in Gdansk, were it not for an audacious legal sortie by eight Australian children supported by green activists.

Last year, lawyers acting for the children successfully convinced Justice Mordy Bromberg that federal Environment Minister Sussan Ley had a statutory duty of care to the children to protect them from the adverse effect of climate change from now to the end of the century. Approving the mine extension would be a breach of that duty. Bromberg relied on evidence from expert witnesses on the risk of heat stress the children would face when in old age in the years 2070-2100, the upper limit of current climate modelling. He ruled that “by reason of the effect of increased CO2 in the Earth’s atmosphere upon the increasing extent and ferocity of bushfires in Australia, each of the children is exposed to a real risk of either death or personal injury from bushfires”. His judgment in July was a game-changer for the environmental law industry, which has been searching for more than 40 years for ways to gain standing in the courts that would allow them to litigate in the name of an inanimate object about to be despoiled by bulldozers. The ability to sue for apprehended harm decades hence opened the way for activists to block just about any project they want by corralling a group of children into a contrived class action. As it was, Bromberg had neutered the power of a minister in an elected government and given unaccountable judges the power to decide what should be done to combat climate change.

Last week, Bromberg’s judgment was comprehensively rejected by the Full Bench of the Federal Court. Chief Justice James Allsop said it should not be left to the courts prompted by private litigation “to re-evaluate, change or maintain high public policy”. Were judges to step into such a role, decision-making under the Environmental Protection and Biodiversity Conservation Act would become “incoherent and inconsistent”, he argued. In any case, the mine extension would make a relatively tiny contribution to increased risks from climate change.

The activists are not done yet. An application for special leave to appeal to the High Court is on the cards. They are unlikely to win, but in the environmental lawfare caper, a defeat is almost as good as a victory since costly delays can be enough to kill a project. A 2011 manifest for green activists published by Greenpeace Australia, Coalswarm and the Graeme Wood Foundation, declared: “The first priority is to get in front of the critical projects to slow them down in the approval process.” It set out a strategy that required lodging legal challenges to five new coal port expansions, two major rail lines and up to a dozen key mines. The aim was to create “much needed breathing space” to allow the movement to build, mobilising pressure on politicians and investors alike. “We cannot win by taking the industry head-on … Our strategy is essentially to disrupt and delay key projects and infrastructure while gradually eroding public and political support for the industry and continually building the power of the movement to win more.”

Remarkably, the courts have largely been prepared to indulge the activists, despite a substantial body of law that prohibits misuse of process or pursuit of collateral purposes. It is to the detriment of the reputation of the courts themselves, since reasonable people do not believe courts are the arena to pursue political and social arguments. Trust in our justice system requires judges are regarded as independent umpires in matters of law, not political players with power to overrule governments using legal contrivances.

In Australia, as in Europe, the shock of Putin’s actions should give us cause to reflect on the damage we have done to our economy in the past 15 years through ill-judged, inefficient and illogical green-energy policy. Energy security must become the goal that trumps every other consideration, since without it we will be unable to stand up to tyranny.