Carmichael Coal (“Adani”) Mine cases in the Federal Court

This case study examines four applications in the Federal Court of Australia for judicial review of the Commonwealth Environment Minister’s decisions to approve the Carmichael Coal Mine (commonly known as the “Adani Mine”) and associated water impacts under the EPBC Act.

The Carmichael Coal Mine was proposed in 2010 by a subsidiary of the Adani Group from India (Adani). In 2015 the group’s chairman, Gautum Adani, claimed, “It’s the world’s largest coal reserve“. If approved, the proposed mine will be one of the largest coal mines in the world and the mining and burning of coal from it will generate an estimated 4.7 billion tonnes of greenhouse gas emissions.

Due to its enormous scale and its potential contribution to the climate crisis and ongoing collapse of ecosystems such as coral reefs, the campaign against it became the biggest environmental campaign seen in Australia since the Franklin campaign in the 1980s:

“It is talismanic. It’s the litmus test. Adani has become shorthand for ‘are you serious about climate change?’.” (Labor figure, May 2017)

In addition to the enormous political campaign against the mine, it has faced multiple court cases. Other litigation against the mine in the Land Court of Queensland is examined in a separate case study. That case study explains:

• the background to the mine;
• the State approvals required for the mine;
• related litigation involving native title issues; and
• related litigation against the associated expansion of the Abbot Point Coal Terminal for the export of the coal from the mine and other new mines in the Galilee Basin of central Queensland.

To minimise overlap, those matters will not be repeated here.

The first two cases examined in this case study were brought in the Federal Court of Australia under the Administrative Decisions (Judicial Review) Act 1977 (Cth) (ADJR Act) against the decisions of the then Commonwealth Minister for the Environment, Greg Hunt, to approve the mine under the Environment Protection and Biodiversity Conservation Act 1999 (Cth) (EPBC Act).

The third case examined in this case study was brought against a decision of the Minister, Melissa Price, that water use at the mine not directly involved in the extraction of coal did not require approval under the EPBC Act’s water trigger.

The fourth case examined in this case study was brought against a decision of a delegate of the Minister that a proposed water infrastructure project associated with the mine did not require approval under the EPBC Act’s water trigger.

The first judicial review challenge

The first application, brought by the Mackay Conservation Group in early 2015 in the Federal Court in Sydney, received enormous media coverage after it succeeded in having the Minister’s approval of the mine set aside by consent.

No judgment was delivered but the Court later issued a statement that the parties agreed the Commonwealth Environment Minister had failed to consider approved conservation advices for two listed threatened species,  the Yakka Skink and the Ornamental Snake, contrary to the requirements of section 139(2) of the EPBC Act.

While the Minister had agreed he had made an error and the approval should be set aside, the decision led to the Australian Government proposing to change the law to prevent “vigilante litigation” and “lawfare” by “radical green groups”.

The following cartoons (featuring the self-radicalising Yakka Skink) illustrate some of the public debate that followed this proposal.

Following the first approval for the mine being set aside, the Minister re-approved the mine under the EPBC Act.

The second judicial review application and appeal

The second application, brought by the Australian Conservation Foundation (ACF) in late 2015, alleged that the Minister failed to properly consider the impacts of the climate pollution from the mine on the Great Barrier Reef World Heritage Area.

The second application was dismissed at first instance by the Federal Court but in a subsequent judgment the Court limited the costs ACF was to pay to 70% of the Ministers costs and 40% of Adani’s costs.

The normal rule is that the losing party pays 100% of the winning party’s or parties’ costs. It is rare that this rule is departed from. For complex cases such as this in the Federal Court costs of each party are typically over $100,000 so limiting the costs the losing party must pay has important practical outcomes.

This is a good example of how procedural issues often dominate the outcomes in environmental litigation. Procedural issues like costs seem boring but in practice they are often critically important for litigants, particularly public interest litigants such as ACF which aren’t pursuing commercial interests.

ACF appealed the decision to dismiss the judicial review application to the Full Court of the Federal Court. The appeal was dismissed.

The third judicial review application

The third application was brought by the ACF on 4 December 2018. It was allowed by consent of all of the parties on 12 June 2019 – that is, ACF won.

In it, ACF alleged that the Minister, Melissa Price, erred by deciding that water use at the mine not directly involved in the extraction of coal did not require approval under the EPBC Act’s water trigger. The EDONSW website and the ACF website have more information about the case.

Through the proceedings it became evident that the process leading to the Minister’s approval hadn’t properly considered the more than 2,200 public submissions that had been made, with some even being lost.

As a result, the ACF amended the grounds to challenge the failure to consider those submissions and the Minister and Adani conceded, leading to ACF’s application for review being granted by consent.

The fourth judicial review application

The fourth application was brought by ACF in 2020 against a decision by a delegate of the Minister that a proposed action comprising the North Galilee Water Scheme Infrastructure (NGWS) Project did not require assessment under the EPBC Act’s water trigger.

The NGWS Protect will involve the construction and operation of infrastructure to harvest and store up to 12.5 gigalitres (GL) of water from the Suttor River in order to provide “a secure and reliable water supply” to the Carmichael Coal Mine.

On 25 May 2021 the Federal Court (Perry J), granted the application for judicial review, finding (at [11] and [114]):

“an action will involve a large coal mining development for the purposes of the water trigger controlling provisions if the action is so closely associated with the mining of coal as to be integral to it.”

This decision does not stop the mine, however. The Minister is merely required to reconsider the application according to law and is highly likely to again approve the water infrastructure for the mine.

Judicial review vs merits appeal

One important thing to understand about these cases is the limitations of the court process they both used. Different types of court proceedings can be conducted very differently and these differences are often very confusing for people unfamiliar with the court system in Australia and other countries with similar court systems.

The applications for judicial review of the Minister’s decisions in the Federal Court involve a very narrow procedure that is like trying to fight in a straight-jacket. People and groups that seek judicial review cannot say, “the decision is wrong based on the evidence of the environmental impacts” because that is an issue that involves the merits of the decision.

Judicial review is the only avenue to challenge decisions about projects referred under Parts 6-9 of the EPBC Act. The three judicial review applications the subject of this case study all challenged decisions to grant approval for the Carmichael Coal Mine under Part 9 of the EPBC Act, so there was no option for the applicants to challenge the merits of the decisions.

In contrast to the merits hearing of the objections to the Carmichael Coal Mine in the Land Court of Queensland the subject of a separate case study, in judicial review a court’s role is not to decide whether the environmental impacts are acceptable or other questions involving evidence of the mine’s impacts. In judicial review a court’s role is merely to decide whether a decision made by an administrative decision-maker complies with the technical legal requirements for the decision-making process.

These limitations are based on the concept of the separation of powers between the Legislature (the Parliament), the Executive (the government) and the Judiciary (the courts). In Australian administrative law the roles of the government (or administrative) decision-maker and the courts are separated in relation to the grant of government approvals and licences, relevantly as follows:

• The executive government (acting through an administrative decision-maker) decides whether to grant an approval or make some other administrative decision based on the facts of the case. In making this decision, the administrative decision-maker weighs up any discretionary issues such as whether the benefits to the community from the money generated by a mining project outweigh the environmental damage caused by the project.
• In a judicial review challenge to an administrative decision made by the executive government, the court’s role is not to evaluate whether that decision was correct based on the facts, to resolve conflicting evidence about the impacts of the project, or weigh up discretionary factors. The court’s role is limited to reviewing whether the decision-maker complied with the requirements imposed by the law such as taking all relevant considerations into account and not displaying bias in making the decision. In judicial review proceedings the parties normally are not permitted to call expert witnesses or rely upon evidence that was not before the decision-maker whose decision is challenged.

These limitations do not apply to all or even the majority of court proceedings. In proceedings not involving judicial review, such as typical planning appeals or prosecutions for environmental offences, courts and tribunals often hear evidence about environmental impacts and decide whether approvals should be granted or penalties imposed based on discretionary factors.

Where these proceedings involve challenges to government approvals they are often referred to as “merit appeals”. An example of such a proceeding is the Plumb’s Chambers Case, the subject of a separate case study, which involved a court hearing evidence about the heritage values of buildings in deciding whether to grant approval for their demolition.

The limited role of a court in judicial review proceedings is often stressed by courts in controversial cases such as the Gunns Pulp Mill cases in one of which the Full Federal Court stated at the beginning of its judgment:

“It is necessary to stress that the Federal Court has no jurisdiction to consider the merit or wisdom of any decision of the Minister. The sole concern of the Federal Court in this matter, both before the primary judge and on appeal, was the legality of the decisions made by the Minister that were the subject of the proceeding before the primary judge.”

Similarly, Griffiths J said in dismissing the ACF’s application against the second EPBC Act approval for the Carmichael Coal Mine:

“It is important to emphasise at the outset the restricted character of this proceeding. On a judicial review application, the Court cannot step into the shoes of the Minister and decide for itself whether Adani’s action should be approved and, if so, what conditions should apply. The Parliament has conferred that task and responsibility on the Minister and the Minister alone. This Court’s function on a judicial review is significantly more limited, confined as it is to a review of the legality, and not the merits, of the Minister’s decision. Ultimately, it is the Minister who must accept responsibility and be accountable for the merits of his decision.”

In the same vein the Full Court said, at [61], in dismissing ACF’s appeal against Griffith J’s decision holding the Minister’s decision was valid:

“There may be good grounds for disagreeing with the Minister’s decision, but that is not our concern in an appeal limited to the lawfulness of that decision.”

The distinction between judicial review proceedings and merits appeals is important to understanding the nature of the three applications in the Federal Court the subject of this case study. There is no clear-cut boundary between which government decisions are subject only to judicial review and which allow merits appeals. There certainly are arguments that favour merits appeals being provided for decisions under Parts 6-9 of the EPBC Act but at present judicial review, with all its limitations, is the only avenue to challenge these important decisions.