NSW committee rejects move to protect coal mines from downstream emissions

A NSW upper house committee has recommended proposed legislation, that would prevent planning authorities from considering the impacts of Scope-3 emissions caused by the state’s coal mines, be scrapped.

NSW planning minister Rob Stokes proposed the legislation in the wake of planning approvals being denied to the proposed Bylong coal mine and the Rocky Hill coal mine, that were blocked by planning authorities due in part to the contributions the mines’ coal would have to global emissions.

A third mine, the United Wambo open-cut coal mine in the Hunter Valley, was approved by the NSW planning authorities, but with the condition that coal from the mine could only be exported to countries that had ratified the Paris Agreement or have suitable policies in place for reducing emissions.

Seeing a threat to the development of New South Wales’ coal industry, and after being heavily lobbied by the NSW Minerals Council, the Berejiklian government moved to prevent planning authorities from considering greenhouse gas emissions that occur outside the “territorial limits” of New South Wales due coal produced within the state.

In effect, the laws would prevent the NSW Department of Planning and the Independent Planning Commission from considering the greenhouse gas emissions created when coal exported from NSW was ultimately burnt overseas and would prevent the agencies putting any conditions on where coal could be exported.

The Environmental Planning and Assessment Amendment (Territorial Limits) Bill 2019, which sought to amend the planning laws, was put on the backburner late last year, as the Berejiklian government worked to avoid the optics of passing laws to protect the coal industry while the state faced an unprecedented bushfire crisis.

Before the Bill was brought forward for a formal vote in the NSW Legislative Council, the Bill was punted to a committee inquiry to buy the government more time.

The resulting NSW upper house inquiry, which was chaired by Greens MLC Cate Faehrmann, recommended that the Bill should not proceed in its current form.

“After this disastrous bushfire season, we must consider scope 3 emissions because of their contributions to climate change impacts in NSW. We can’t continue feeding the world’s fossil fuel addiction if we are to have any hope of dealing with this climate crisis that threatens our environment and our communities,” Faehrmann said.

“The committee’s report is scathing and recommends in the strongest possible terms that the Bill not proceed in its current form,” NSW Greens mining spokesperson, and a member of the inquiry Abigail Boyd added.

In a dissenting statement attached to the committee’s report, the three Liberal and Nationals members of the committee joined to reject the report’s recommendations and in particular, hit out at the conduct of the inquiry.

“The government members are disappointed in the conduct of the Inquiry, in particular the public hearing. The government members also reject all recommendations made in this report as they fail to provide a solution that solves the jurisdictional issue highlighted above in its entirety,” the dissenting statement says.

“Of those ten groups, eight were environmental groups or associated with environmental groups who reject the Bill entirely and sought to misrepresent both the rationale for the Bill and the legal effect of the legislation. The other two groups are resource and mining industry groups who also did not agree with the Bill in its entirety.”

“The lack of diversity of opinions amongst those groups who attended the public hearing has skewed the Final Report and its recommendations. Furthermore, despite the resource and mining industry groups both stating they do not totally agree with the Bill, the Final Report in parts infers that groups like these are or were responsible for the creation of this legislation.”

The three dissenting committee members included Liberal MLCs Shayne Mallard and Catherine Cusack, who were joined by Nationals MLC Ben Franklin.

The Bill has attracted opposition from all sides of the coal mining debate, albeit for different reasons.

The Bill was strongly opposed by environmental groups, which said that the ability for planning authorities to consider how proposed coal mining projects may ultimately contribute to worsening global warming, was crucial.

“New South Wales should be implementing sensible laws based on science that plan for a just and rapid transition to low carbon economies that ensure the proper long-term protection of the people and environment of New South Wales, including a safe climate for current and future generations,” Rachel Walmsley of the Environmental Defenders Office told the enquiry.

“We do not support the Bill. The Bill is a retrograde step that will undermine the ability of decision-makers to properly assess and regulate the climate impacts of fossil fuel projects on the environment and local communities in NSW,” the Environmental Defenders Office added in its submission.

The Environmental Defenders Office, which led the legal challenge to the Rocky Hill mine, also criticised the decision on the Wambo United mine, saying that simply limiting coal exports to Paris Agreement signatories.

Progressive think tank The Australia Institute also welcomed the committee’s findings.

“This is a scathing report which recognises that NSW is responsible for far too much of the world’s coal emissions, and bears a local and global responsibilities to help reduce them,” senior researcher Tom Swann said.

“We cannot solve climate change while building new mines, but as the NSW Government itself notes, deep cuts in emissions are possible with strong economic growth. The NSW Berejiklian Government’s commitment to the Paris Agreement and net-zero emissions means it should be doing more to reduce coal emissions, not trying to do less.

In their submission to the inquiry, the NSW Minerals Council also raised concerns about the bill, but said that this was because it did not go far enough in terms of providing protections to proposed coal mine developments.

“Publicly available legal analysis on the Bill confirm the proposed amendments don’t remove the legal risk that downstream emissions could be used as a reason to refuse projects in NSW,” The NSW Minerals Council submission said.

“Essentially this is because the Bill delivers a partial remedy only without the other necessary component parts to make it explicit that downstream emissions cannot be used to refuse NSW projects.”

The committee’s report on the coal mine protections follows the findings of a different upper house committee, stacked with pro-nuclear parliamentarians, which recommended the repeal of prohibitions on the development of the state’s nuclear industry.


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