The New South Wales court of appeal has overturned the approval of the largest coalmine expansion in the state after a community environment group successfully argued the planning commission failed to consider the impact of all of the project’s greenhouse gas emissions.
The decision is a significant blow for MACH Energy’s Mount Pleasant coalmine expansion in Muswellbrook in the upper Hunter and one that climate advocates say could have wider implications for future fossil fuel project proposals in NSW.
The court found the independent planning commission was required and failed to consider the impacts of all emissions associated with the project on the local environment, including from the exported emissions – known as scope 3 emissions – when the coal is sold and burnt overseas.
The commission approved the Mount Pleasant mine expansion in 2022. The project would double the mine’s coal output to 21m tonnes per annum until 2048 and 98% of the projected emissions are scope 3 emissions.
The Denman Aberdeen Muswellbrook Scone Healthy Environment Group (DAMS HEG) unsuccessfully appealed against the decision in the land and environment court last year but the court of appeal found in the group’s favour on Thursday morning.
Wendy Wales, the group’s president, welcomed the decision and said the burning of fossil fuels was causing increasingly destructive weather events globally, including in NSW.
“Our communities are enduring increasingly terrifying climate disasters, and nature is disappearing before our very eyes. Yet our governments are continuing to throw fuel on the fire by approving massive new coal projects like MACH Energy’s Mount Pleasant,” she said.
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“It shouldn’t be up to a small community group like DAMS HEG to fight this global battle, but in the absence of meaningful government action to protect us from climate harm arising from coalmines, we felt we had no choice but to stand up for our children and grandchildren, the public interest, the rule of law and nature itself,” she said.
The matter will now return to the land and environment court to consider whether conditions can be imposed that would validate the approval or whether the project must return to the planning commission.
DAMS HEG was represented in the appeal by Johnson Legal and counsel team Naomi Sharp SC and Matthias Thompson.
Elaine Johnson, the director of Johnson Legal, said the court had determined that it was the planning commission’s job to consider the link between fossil fuel expansions and climate harm felt by local communities in NSW.
“Today’s decision has broad-ranging implications for all new and expanded fossil fuel projects in NSW. No longer can the NSW government say that climate impacts felt by local communities in NSW are divorced from the continued production of coal and gas in the state,” she said.
“It’s difficult to see how further fossil fuel expansions will pass muster following today’s decision.”
Johnson said the judgment built on the landmark 2019 Rocky Hill finding by the land and environment court, which cited climate change in its reasons for upholding a planning commission decision to reject Gloucester Resources’ proposed Rocky Hill coalmine in the Hunter Valley.
The NSW Greens spokesperson for planning and the environment, Sue Higginson, said the case was “a significant legal breakthrough and will send shockwaves through a planning system and a government that has been failing to take real action to prevent climate breakdown”.
“The court has ruled that the government bears responsibility for the emissions that they create as a result of the fossil fuel projects they approve,” she said.
“This is a giant leap forward in holding our governments to account when it comes to the damage they are doing to our climate and local communities through waving through more coal and gas projects.”
The planning commission said it respected the decision of the court of appeal.
The NSW planning minister, Paul Scully, acknowledged the court’s decision.
“As the matter has now been referred back to the Land and Environment Court for consideration, the government has no further comment to make on the decision at this stage,” he said.
A spokesperson for MACH Energy said the company would review the judgment and “explore all avenues to ensure continuity and certainty for the Muswellbrook community and the broader Hunter Valley Region”.
