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Asia and Pacific

DOI https://doi.org/10.21552/cclr/2017/1/8

Laura Schuijers


Australian Conservation Foundation Inc v Minister for the Environment [2016] FCA 1042 is an important decision for Australian climate change law. The case concerns the Australian Environment Minister’s approval of the Carmichael Coal Mine and associated rail infrastructure proposed by Adani Mining, and raises the difficult issue of the extent to which downstream emissions and the impact of such emissions on climate change are relevant to environmental approvals. The Australian Federal Court was asked to decide whether emissions from overseas transport and combustion associated with the mine should have factored into the Minister’s approval decision, with Justice Griffiths finding that considerations pertaining to (inter alia) the substitutability of coal on the market and the uncertainty in power plant efficiency were too ‘variable’ for it to be said that the mine proposal would contribute in a significant way to climate change. The precautionary principle – a requisite consideration in Australian law – was all but dismissed. This case represents a departure from the way in which climate change (particularly, the consideration of downstream emissions) has been dealt with by Australian courts in previous cases, but at the same time echoes the general difficulties that plaintiffs have had in using climate change as an avenue for judicial review. It comes almost a decade after the two other major Australian federal decisions on climate change, and is concerning given the serious and imminent threats posed by climate change to the Australian environment such as its iconic Great Barrier Reef. The decision has been appealed by the Australian Conservation Foundation in the Full Federal Court, which had at the time of writing had reserved its judgment.

Laura Schuijers, PhD Candidate (expected completion 2017), Melbourne Law School; lecturer and tutor, Office for Environmental Programs (Master of Environment), The University of Melbourne. For correspondence: <mailto:laura.schuijers@unimelb.edu.au>. DOI: 10.21552/cclr/2017/1/8

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