by Mark Ogge
[Originally published on The Fifth Estate, 12 November 2019]

It is a terrible irony that the coal being mined in New South Wales is helping fuel the state’s unprecedented increase in extreme heat, fires and drought. 

Every year, coal produced in NSW results in about 500 million tonnes of greenhouse gases being pumped into the global atmosphere. This is roughly equivalent to Australia’s domestic annual emissions, and more than those of the UK or France.

That is why NSW law has long required that the emissions caused by the burning of coal, whether that burning takes place in Australia or overseas, be considered when new coal mine proposals are being assessed. 

At the behest of the coal industry, this requirement was often ignored by decision makers. 

But as the impacts of global warming hit home and public concern turns into a public emergency, the requirement is being taken more seriously. 

This year, a landmark decision by the NSW Land and Environment Court in the Rocky Hill case confirmed that the full climate impacts of new coal mines must be considered in determining whether the mines should be approved. The court flatly rejected the arguments used by the coal industry to avoid this scrutiny.

This included the spurious industry argument that emissions caused by burning coal (technically referred to as “downstream emissions”) should not be taken into account, on the basis that “they are not produced during the mining of coal”.

Of course, emissions from the actual combustion of coal are by far the main source of emissions from coal. The court confirmed what was already explicitly stated in NSW legislation, that downstream emissions from burning coal must be considered. 

Following this, the Independent Planning Commission (IPC)  – the body responsible for assessing whether mines go ahead —rejected a coal mine in the Bylong Valley near Mudgee, citing climate change impacts as one of many reasons.

In another case, conditions were placed on the Wambo mine in the Hunter Valley so that it would only be able to export coal to countries that are signatories to the Paris Agreement on climate change.

Government gives in to coal lobbying

This has triggered a ruthless PR campaign by the coal industry’s lobby group, the NSW Minerals Council, to have NSW laws changed. The campaign included highly misleading commercials attacking the IPC, bolstered by a campaign on the front pages of the Daily Telegraph. 

Embarrassingly quickly, the NSW Government rolled over, announcing changes to the law. This included removing the explicit requirement for emissions from burning coal to be considered in the assessment of new coal mines. 

The new law would also prohibit decision-makers from imposing conditions on mining approvals aimed at dealing with the impacts of emissions produced when coal from those mines is burned overseas. The coal lobby said jump, the NSW Government said: ‘how high?’

The coal industry has a long history of getting the laws changed whenever coal mines are blocked due to their environmental or social impact. But this time it’s different. 

As NSW struggles with drought and an early bush fire season, the climate impacts are unavoidable and devastating. Australians are simply no longer prepared to tolerate governments changing the laws at the behest of the coal lobby.  

The Australia Institute has launched a TV commercial to counter the coal lobby attack ads, calling on the NSW government to defend its laws and the IPC.

Beyond climate change impacts, the ability of the coal lobby to get the laws changed, and its attack on the IPC, are a brazen challenge to our democracy and legal system.

At the launch of the Australia Institute’s commercial at NSW Parliament, the former NSW Supreme Court Judge Paul Stein QC said all citizens in NSW should be alarmed.

“It’s a dangerous step which flies in the face of combatting global warming. It also is what is, in essence, an attack on the independent decision makers,” he said.

If the influence of the coal industry is left unchecked, it will increasingly undermine our legal system and democracy. Australia has seen hundreds of thousands of people take to the streets in recent months to express their concern about climate change. 

The so-called quiet Australians have found their voice. 

Now, it’s time for the NSW government to find its voice and protect the laws that ultimately protect us. 

Mark Ogge is principal adviser at independent think-tank The Australia Institute.