Australian Conservation Foundation v. Minister for Planning [2004] VCAT 2029

Environmental groups challenged an amendment to the provisions of a local planning scheme that was necessary for the expansion of the Hazelwood coal mine in southeastern Australia. The petitioners claimed that the environment effects statement (EES) should have included analysis of the impacts of carbon emissions when the coal is later burned.

The terms of reference for the EES stated that “[t]he Panel is not to consider matters related to greenhouse gas emissions from the Hazelwood Power Station – these issues are being addressed through a separate process.” Id. at sec. 49. When concerns were raised about this with the Minister of Planning, the Minister dismissed them, stating:

The Government is wholly committed to the general reduction of greenhouse gas emissions from coal-fired power generation. The Minister for Energy Industries and Resources is addressing greenhouse gas issues specifically associated with the operation of the Hazelwood Power Station using any coal outside the existing mining licence boundary. The full development of the West Field beyond the existing licence boundary will be subject to an agreement being reached between Government and [Hazelwood]. As is publicly known the Minister’s intention is that greenhouse gas emissions from the Power Station associated with any coal outside the existing licence boundary should be substantially reduced.

Id. at sec. 13.

Nevertheless, citizens continued to raise concerns over climate impacts from burning the coal in written submissions and at a hearing conducted by the Panel. The Panel later determined it could not consider these concerns. The citizens filed a petition with the Victorian Civil and Administrative Tribunal, which determined the Panel should have considered concerns about climate impacts from burning the coal after they were raised under the Planning and Environment Act 1987. The Tribunal found that the Panel must “provide a reasonable opportunity to be heard to any party who wishes to make a submission in relation to the environmental impacts of greenhouse gas emissions from the Hazelwood Power Station; and [must] consider those impacts in making its recommendations and report to the planning authority.” Id. at sec. 1.

Even though the Panel ultimately approved the amendment after considering the GHG emissions from both the mine itself and the later coal combustion, the case is still important for connecting the impacts of GHG emissions from burning coal to the activity of mining the coal.

View case at: http://www.austlii.edu.au/cgi-bin/download.cgi/au/cases/vic/VCAT/2004/2029