This case study examines two applications in the Federal Court of Australia for judicial review of the Commonwealth Environment Minister’s decisions to approve the Carmichael Coal Mine under the EPBC Act.
The 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, its impacts on the local and regional environment, and the consequences for climate change if it proceeds the mine has been strongly opposed by conservationists and has been the subject of 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 two cases examined in this case study were brought in the Federal Court of Australia under the Administrative Decisions (Judicial Review) Act 1977 (Cth) against the decisions of the Commonwealth Minister for the Environment, Greg Hunt, to approve the mine under the Environment Protection and Biodiversity Conservation Act 1999 (Cth) (EPBC Act).
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 have appealed the decision to dismiss the judicial review application to the Full Court of the Federal Court. A date for the hearing of the appeal has not yet been set but can be expected in late 2016.
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 two judicial review applications the subject of this case study both 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.”
The distinction between judicial review proceedings and merits appeals is important to understanding the nature of the two 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.
EPBC Act application documents
- Referral of mine & rail project under s 69 of the EPBC Act publically notified on 17/11/2010.
- Maps of proposed mine and rail project
- Decisions under section 75 & 87 of the EPBC Act on 9/1/2011 that:
- the mine & rail project are a controlled action requiring assessment under the EPBC Act; and
- it will be assessed through the Queensland Bilateral Agreement by an EIS under the State Development and Public Works Organisation Act 1971 (Qld)
- Decision to assess the mine under the water trigger on 23/10/2013.
- Final advice for the IESC on groundwater impacts of the mine on 15/12/2013.
- Queensland Coordinator-General’s report published in May 2014.
- First EPBC Act approval on 24/7/2014.
- Statement of reasons for first approval signed by the Minister on 10/12/2014.
First judicial review application (by MCG)
- Originating application for judicial review filed on 12/1/2015.
- Amended originating application for judicial review [not available]
- Further amended originating application for judicial review filed on 15/6/2015.
- Consent judgment setting aside the first approval for the mine on 4/8/2015.
- Public statement by the Federal Court to correct media reports about the consent judgment released on 19/8/2015.
Re-approval of the mine
- Second approval of the mine & rail project on 14/10/2015.
- Minister’s statement of reasons for the second approval released on 14/10/2015.
Second judicial review application (by ACF)
- Originating application for judicial review of second approval filed on 10/11/2015.
- Amended originating application for judicial review of second approval filed on 28/1/2016.
Written submissions by the parties
- ACF’s outline of submissions, 5 April 2016.
- Minister’s outline of submissions, 26 April 2016.
- Adani’s outline of submissions, 26 April 2016.
Federal Court’s decision on second application
- The Federal Court’s decisision dismissing ACF’s application: Australian Conservation Foundation Inc v Minister for the Environment  FCA 1042.
Costs of the second application
- ACF’s submissions on costs, 5 September 2016.
- Minister’s submissions on costs, 5 September 2016.
- Adani’s submissions on costs, 5 September 2016.
- The Federal Court’s decision on costs awarding the Minister 70% of his costs and Adani 40% of its costs principally due to the public interest nature of the case: Australian Conservation Foundation Incorporated v Minister for the Environment (No 2)  FCA 1095.
Appeal to the Full Federal Court
- ACF’s Notice of Appeal, filed 19 September 2016.
Media reports about this case
The New Coal Frontier, Galilee Basin, Australia, The Guardian, 2015.
Federal Court sets aside approval of Adani’s Carmichael coal mine in Galilee Basin, ABC News, 5 August 2015.
Federal Court overturns approval of Adani Carmichael coal mine in Queensland, The Sydney Morning Herald, 5 August 2015.
Approval for Adani’s Carmichael coalmine overturned by federal court, The Guardian, 5 August 2015.
Coalition will take six to eight weeks to revise its Carmichael coalmine approval, The Guardian, 5 August 2015.
Adani caned but not canned, The Age, 5 August 2015.
Australian Court Revokes Approval for $12.2 Billion Adani Group Coal Mine, The Wall Street Journal, 5 August 2015.
Adani and Commonwealth Bank part ways, casting further doubt on Carmichael coal project, The Sydney Morning Herald, 5 August 2015.
Adani and government caught cutting corners on Carmichael mine, The Sydney Morning Herald, 5 August 2015.
Future of Carmichael mine hinges not on skinks or snakes, but its business case, The Guardian, 6 August 2015.
Adani’s Australian coal prospects in doubt, BBC, 9 August 2015.
The government vs the environment: lawfare in Australia, The Conversation, 18 August 2015.
Lawyer up! Greenies are here to vigilante your coal mine into oblivion! First Dog on the Moon. The Guardian, 19 August 2015.
‘Vigilante litigants’ didn’t stop the Carmichael mine, the law did, ABC The Drum, 20 August 2015.
Abbott is losing the plot in his war on environmentalists, The Sydney Morning Herald, 21 August 2015.
Clarke And Dawe – Episode 31, ABC, 27 August 2015.
Adani gets federal re-approval for Carmichael coal mine, ABC News, 15 October 2015.
Adani Carmichael: Australia’s largest coal mine free to proceed after Greg Hunt gives approval, The Sydney Morning Herald, 15 October 2015.
Adani Carmichael mine in Queensland gets another green light from Coalition, The Guardian, 15 October 2015.
Australia approves controversial Carmichael coal mine, BBC News, 15 October 2015.
New conditions for Adani’s Carmichael coal mine weaker than first approval, environment groups say, ABC News, 19 October 2015.
Australian Conservation Foundation challenges Adani’s Carmichael coal mine in Federal Court, ABC News, 9 November 2015.
Conservation group challenges approval of Carmichael coalmine as ‘illegal’, The Guardian, 9 November 2015.
Graph of the Day: Carmichael coal mine to take big chunk of carbon budget, RenewEconomy, 12 November 2015.
Carmichael vs The World, The Australia Institute, 12 November 2015.
Gautum Adani makes special request to Malcolm Turnbull over $15b deal, The Sydney Morning Herald, 9 December 2015.
There’s no precedent for stopping the Carmichael coal mine, but we should, The Conversation, 17 December 2015.
Are we witnessing a turning point in the future of coal? ABC The Drum, 29 December 2015.
Stakes raised for black-throated finch’s largest remaining habitat on Adani mine site, The Guardian, 25 February 2016.
Coalmines could wipe out threatened black-throated finch habitat – study, The Guardian, 3 March 2016.
Queensland coal mines will push threatened finch closer to extinction, The Conversation, 4 March 2016.
Black-throated finch could be in danger from Galilee Basin mining projects, ABC Rural, 7 March 2016.
Is this the end of the Great Barrier Reef? Sydney Morning Herald, 8 April 2016.
Great Barrier Reef: new chapter opens in the fight to save natural wonder from mining, The Guardian, 10 April 2016.
Coal v Coral: if Greg Hunt faces the truth he can save the Great Barrier Reef, The Guardian, 15 April 2016.
EXPLAINER: Adani Big Coal Case Could Make It Harder To Get Mines Approved, New Matilda, 3 May 2016.
Greg Hunt: no definite link between coal from Adani mine and climate change, The Guardian, 6 May 2016.
Australian Conservation Foundation’s case against $21b Adani Carmichael mine dismissed, ABC News, 29 August 2016.
Australian Conservation Foundation loses Federal Court case on Adani coal, Sydney Morning Herald, 29 August 2016.
Greg Hunt’s approval of Adani’s Queensland mine upheld by federal court, The Guardian, 29 August 2016.
Adani should bow out gracefully from its Carmichael coal mine, The Conversation, 31 August 2016.