In its judgement delivered yesterday, the court refused to order the offset conditions called for in a November ruling by Justice Nicola Pain which required Ulan to mitigate and offset additional scope 1 emissions that would be generated under the expansion of the mine, estimated to cost $2.2 million a year.
Pain found it was not discriminatory for Ulan to pay to offset greenhouse gases and the court had the power to impose conditions on major resource and infrastructure projects prescribed by NSW’s now defunct Part 3A planning procedure.
It was despite the project gaining approval by the NSW minister for planning in November 2010.
In overturning that ruling yesterday, the court cited the recent passage through federal Parliament of the Clean Energy Act 2011, saying the conditions were “unnecessary” and “unwarranted”
It ruled that the act was a national response to greenhouse gas emissions and declined to impose any additional conditions on the Ulan project approval beyond those imposed by the minister when he originally granted approval in 2010.
Xstrata Coal NSW chief operating officer Ian Cribb said the court ruling was an acknowledgement of the comprehensive assessment supporting Ulan’s application for approval, which would allow the company to create 270 direct jobs.
“The court’s decision not to require carbon offsets for an individual project was appropriate because it would have unfairly prejudiced one mine within the industry when such issues should be driven [by] national, or preferably international policy,” he said.
“Moreover, the matter of greenhouse gas emissions and carbon offsets have now been addressed on an Australia-wide basis through the national legislation recently passed by the federal government.”
The coal mining industry was concerned that the decision had the potential to broaden the number of conditions of approval for coal mine developments that could have been imposed by the court under the Environmental Planning and Assessment Act or by the planning minister.
“The consolidation of existing consents into the one project approval brings with it a number of environmental benefits including more stringent environmental conditions relating to noise, blasting, air quality, subsidence, water management, ecology and cultural heritage matters,” Cribb said.
The NSW Department of Planning warned the outcome of the court case would have “significant implications” for coal mining developments.
“The in-principle decision to impose a condition requiring a single mining proposal to offset scope 1 greenhouse gas emissions has significant implications for future mining proposals in New South Wales,” the department said.
“It may also affect other new proposals where scope 1 greenhouse gas emissions will be produced.”
In January, Australian Coal Association chief executive Nikki Williams told the Sydney Morning Herald: “Emissions from the mining of coal are covered by the federal government's carbon tax legislation, which passed into law earlier this year … to commence on 1 July 2012.
“Australia is the only coal exporting nation in the world with a carbon tax scheme that includes fugitive emissions.
“It is estimated that the carbon tax will cost the Australian coal industry $18 billion to 2020.
“This places our industry at a distinct competitive disadvantage.”
