Carmichael Coal Mine: a Case Study
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Law Environment and Development JournalLEAD A CASE STUDY OF THE CARMICHAEL COAL MINE FROM THE PERSPECTIVES OF CLIMATE CHANGE LITIGATION AND SOCIO-ECONOMIC FACTORS Sandra Cassotta, Vladimir Pacheco Cueva & Malayna Raftopoulos ARTICLE VOLUME 17/1 LEAD Journal (Law, Environment and Development Journal) is a peer-reviewed academic publication based in New Delhi and London and jointly managed by the Law, Environment and Development Centre of SOAS University of London and the International Environmental Law Research Centre (IELRC). LEAD is published at www.lead-journal.org [email protected] ISSN 1746-5893 ARTICLE A CASE STUDY OF THE CARMICHAEL COAL MINE FROM THE PERSPECTIVES OF CLIMATE CHANGE LITIGATION AND SOCIO-ECONOMIC FACTORS Sandra Cassotta, Vladimir Pacheco Cueva & Malayna Raftopoulos This document can be cited as Sandra Cassotta, Vladimir Pacheco Cueva & Malayna Raftopoulos, ‘A Case Study of the Carmichael Coal Mine from the Perspectives of Climate Change Litigation and Socio-Economic Factors’, 17/1 Law, Environment and Development Journal (2021), p. 55, available at http://www.lead-journal.org/content/a1704.pdf Sandra Cassotta, Associate Professor in International, Environmental and Energy Law, Department of Law, Aalborg University, E-mail: [email protected]. Vladimir Pacheco Cueva, Associate Professor, School of Cultural and Society, Aarhus University. Malayna Raftopoulos, Associate Professor in Development Studies and International Relations/Latin American Studies, Department of Politics and Society. Published under a Creative Commons Attribution-NonCommercial-ShareAlike 4.0 International Unported License TABLE OF CONTENTS 1. Introduction 57 2. The Background of the Carmichael Coal Mine Project 57 2.1 The Regulatory Framework for Mining in Queensland 59 2.2 Climate Change Science and Australian Responsibility to Climate Change 60 2.3 Legal Elements of the Approval Process in Climate Change Litigation: Advancements and Regressions 62 2.3.1 Causation 63 2.3.2 Cumulative Emissions 63 2.3.3 Precautionary Principle 64 2.3.4 Market Substitution Agreement 64 2.3.5 Public Interest 66 3. Climate Change Litigation Linked with an Economic, Social, Public Participation and Stakeholders approach 66 4 Economic factors to take into account in the case of Carmichael Coal Mine 67 4.1 Mining Royalties 67 4.2 Tax 68 4.3 Employment 69 4.4 Public Debt 70 5 Conclusion 71 Law, Environment and Development Journal By using the Carmichael Coal Mine as a case study, the purpose of this paper is to explore and analyse climate change litigation in a systemic legal and socio- economical approach. It will focus on the current 1 challenges and potentials of the Australian legal INTRODUCTION framework and the jurisprudence of climate change litigation. The aim is to advance toward a more In 2010, Adani Mining Pty Ltd (Adani) proposed the conscious global approach to designing regulations development of what would become one of that can consider and balance direct economic benefits Australia’s most controversial mining projects. Known for the local economy, and global environmental as the ‘Carmichael Coal Mine’ (sometimes referred in concerns and global common vision about how to the Australian media as the ‘Adani Mine’ or ‘Adani manage mining developments and energy challenges. project’), the project has a predicted lifetime of 60 years The research question seeks to identify in the and estimated life cycle production of 2.3 billion tonnes Carmichael Coal Mine case what are the legal elements of thermal coal. Due to its enormous scale, and despite of regression and advancement in climate change its potential economic and social effects (including fiscal litigation that enable economic and social contributions income), the project has met fierce opposition because against climate change impacts. of its potential environmental and social impacts. It is estimated that the burning of coal from the mine will When examining this particular mining project, the generate 4.6 billion tonnes of greenhouse emissions. authors will consider global concerns highlighted, for These emissions are over 0.5 per cent of the remaining example, by the Paris Agreement and the International carbon budget which has been set to limit global Panel of Climate Change (IPCC) concerning temperature rises to 2ºC above pre-industrial levels.1 greenhouse emissions or by the United Nations As such, the Carmichael Coal Mine project, which was Development Programme’s (UNDP) Agenda 2030 initially projected to become one of the largest coal relating to access to reliable source of energy for the mines in the world, has found itself the object of an population. This approach is to provide substantive increasing amount of climate change litigation in guidance, especially in relation to how the local Australia’s courts. By, 2020, the reputation of the Adani regulators and policy makers should proceed if they Group was so compromised that the company decided are to succeed in managing and regulating these projects to change its name to ‘Bravus Group’ after mistakenly when faced with climate change litigation. In that sense, thinking that Bravus meant ‘brave’ or ‘courageous’ in climate change litigation can serve as a catalysing factor classical Latin.2 In reality, as explained by an article in to facilitate the transition from fossil fuel to renewable The Guardian ‘Bravus’ means ‘crooked’ or ‘deformed’, energy. However, as will be explained later, at present ‘mercenary’ or ‘assassin’ in that language.3 Queensland is not ready to balance climate change damages with short-term monetary returns. 1 Joint Report to the Land Court of Queensland on ‘Climate Change – Emissions’, Adani Mining Pty (Adani) v. Land Services of Coast and Country Inc. & Ors. by Chris Taylor 1-16. 2 M Philpott, ‘Adani Mining Changes Name to Bravus After 2 10 Years in Australia’, ABC News (5 November 2020) THE BACKGROUND OF THE CAR- <https://www.abc.net.au/news/2020-11-05/adani- MICHAEL COAL MINE PROJECT changes-name-to-barvus-mining-and-resources/ 12851592>. 3 Naaman Zou, ‘Crooked Not Courageous: Adani Renames Australia is one of the most vulnerable continents to Australian Group Bravus Mistaking it for ‘Brave’ The the impacts of climate change and is at the same time Guardian (5 November 2020) <https:// the location of the largest coal developments, thus www.theguardian.com/business/2020/nov/05/ making it the scene of numerous juridical reviews crooked-not-courageous-adani-renames-australian-group- concerning coal mining projects and climate change bravus-mistaking-it-for-brave>. 57 Carmichael Coal Mine: A Case Study litigation. The Carmichael Coal Mine, located in Spring Threatened Ecological Community, threatened Queensland, is only one example of climate change species like the Black-throated Finch, and the mine’s litigation processes in Queensland. Queensland contribution to climate change. In addition, the jurisdictions, by means of merit review and judicial economic feasibility of the project was among the review, had to face numerous obstacles against coal objects of litigation. Climate change arguments of mining project proposals in order to evaluate the the Carmichael Coal Mine case (as in other cases approaches taken by tribunals and courts to the considered by the Australian jurisprudence) build on environmental assessment of coal projects. scientific expertise related to climate change impacts and on joint expert reports, such the report of Dr The Carmichael Coal Mine is one of those difficult Meinshausen’s carbon budget model.7 According to cases with massive environmental, climate and this joint expert report, the carbon budget available Indigenous rights implications, making it especially after 2015 has been depleted to 850 billion tonnes of valuable for analysis. In particular, the focus is on all carbon dioxide, with exploitation of all known coal the legal elements of the approval process, how social reserves having the potential to contribute 4,000 to actors contest them and how these are linked to 7,000 billion tonnes of carbon dioxide. economic and social considerations. The ‘Green Gas Protocol’, is an international Although none of the challenges presented in this accounting for GHGs8 which categories GHGs article have succeeded in stopping the Carmichael Coal emission into three categories: Scope 1 emission that Mine project, the authors are able to identify some are direct greenhouse gas emission from a project; Scope elements of advancement and regression in the climate 2 emissions that are indirect greenhouse gas emission change litigation’s process. These elements allow for from the generation of purchased electricity; and Scope new legal paths to blocking future project approvals in 3 emissions that are all other indirect greenhouse gas the mining sector if such projects pose threats to the emissions resulting from a company’s activities. This environment and/or aggravate climate change. expert group reported that over its lifetime, the proposed Carmichael Coal Mine project will account In 2010, the Adani Group proposed the Carmichael for 0.53-0.56 per cent of the global carbon budget. Coal Mine project in Queensland’s Galilee Basin. It The expert report also calculated GHGs emissions on involves a Greenfield open-cut coalmine, an a cumulative emission basis, including Scope 3 underground coal mine, associated mine processing emissions, and concluded that the potential of facilities and a 388 Km railway, linking the mine with emissions from the Carmichael Coal Mine project will the coal port