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the climate change implications of coal mining. As discussed in Section 1 of this
chapter, Australia is deeply reliant on coal both as an export commodity and for
domestic energy production, and Australia has the highest greenhouse gas emissions
per capita of any country in the world. Section 2 describes the three most signi¬cant
legal cases involving climate change in Australia, all of which have concerned the


Associate Professor of Law, University of San Diego; Assistant Adjunct Professor, School of Inter-
national Relations and Paci¬c Studies, University of California, San Diego. J.D., Stanford Law
School, 2000; Ph.D., University of California, Berkeley, 2004. The author™s corresponding address is
mcallister@sandiego.edu.

48
Litigating Climate Change at the Coal Mine 49


assessment of the environmental impacts of coal mines. Section 3 analyzes several
legal barriers that may prevent favorable outcomes for environmental plaintiffs in
such cases, with a focus on Australia and the United States.


1. KING COAL IN AUSTRALIA

Like the United States, Australia is rich in coal. Australia is the world™s largest exporter
of coal and the world™s fourth-largest producer of coal after China, the United States,
and India.1 More than 70 percent of Australia™s coal exports go to Asian countries,
particularly Japan, India, Korea, and Taiwan.2 Coal is also Australia™s largest export
commodity, accounting for about 16 percent of the value of total merchandise
exports.3
Australia also relies heavily on coal for domestic energy production. Whereas
coal accounts for 40 percent of electricity production worldwide, about 76 percent
of electricity production in Australia comes from coal.4 With its reliance on coal,
Australia has the highest greenhouse gas emissions per capita in the world.5 The
stationary energy sector, which is fueled primarily by coal, accounts for 50 percent of
Australia™s greenhouse gas emissions, and its emissions rose by 47 percent between
1990 and 2006.6
Brown coal, of which Australia has extensive reserves, is a particularly egregious
contributor to greenhouse gas emissions. Brown coal, also called lignite coal, is a
low-rank form of coal that burns less ef¬ciently than black coal because of higher
moisture content.7 Brown coal power plants typically emit about 37 percent more
carbon dioxide per unit of power output than a black coal power plant.8 Australia


World Coal Institute, The Coal Resource: A Comprehensive Overview of Coal, at 14“15 (2005), available
1

at http://www.worldcoal.org/assets_cm/¬les/PDF/thecoalresource.pdf (last visited February 27, 2009)
[hereinafter WCI].
Department of Resources, Energy and Tourism, Australia™s Coal Industry, available at http://www.
2

ret.gov.au/resources/mining/australian_mineral_commodities/Pages/australia_coal_industry.aspx
(last visited February 27, 2009); Department of Foreign Affairs and Trade, Composition of Trade
Australia, 2005“06, at 5 (November 2006), available at http://www.dfat.gov.au/publications/stats-
pubs/cot_fy2006_analysis.pdf (last visited February 27, 2009) [hereinafter Composition of Trade
Australia].
Composition of Trade Australia, supra note 2, at 5.
3

WCI, supra note 1, at preface.
4

Pew Center on Global Climate Change, Climate Data: Insights and Observations, at 11 (December
5

2004), available at http://www.pewclimate.org/docUploads/Climate%20Data%20new.pdf (last visited
February 27, 2009).
Department of Climate Change, National Greenhouse Gas Inventory 2006: Accounting for the Kyoto
6

Target, at 1 (2008), available at http://www.climatechange.gov.au/inventory/2006/index.html (last vis-
ited February 27, 2009).
WCI, supra note 1, at 14“15.
7

Institute for Sustainable Futures, Why Brown Coal Should Stay in the Ground: Greenhouse Impli-
8

cations of the Proposed Expansion of Brown Coal Exploration and Mining in Victoria, at 5 (2002),
available at http://www.isf.uts.edu.au/publications/tarlo2002whybrowncoal.pdf (last visited February
27, 2009) [hereinafter ISF].
Lesley K. McAllister
50


contains 20 percent of all demonstrated brown coal reserves in the world, and about
20 percent of all coal mined in Australia is brown coal.9
Australia™s reliance on coal for export revenue and domestic energy production
has in¬‚uenced Australia™s position in international climate change policy debates.
Other than the United States, Australia was the only major industrialized country
to reject the Kyoto Protocol.10 As is also true in the United States, climate change
activists have pursued remedies through litigation. The next section describes the
most prominent climate change cases that have been ¬led in Australian courts.


2. THE COAL MINING CASES

The most signi¬cant legal cases relating to climate change in Australia have alleged
inadequate assessments of the environmental impacts of proposed coal mining
projects.11 In the Hazelwood case, environmental groups alleged a violation of the
land use planning statute of the state of Victoria. In the Isaac Plains and Sonoma
Mines case, environmental groups alleged a violation of the national environmental
impact law. Finally, in the Anvil Hill case, an environmentalist alleged a violation
of the environmental planning statute of the state of New South Wales.

2.1. The Hazelwood Case
In 2004, the Victorian Civil and Administrative Tribunal (the Tribunal) held that
the environmental planning studies required for the approval of an expansion of the
Hazelwood coal mine must include an assessment of the greenhouse gas emissions
that would result from the burning of the coal in the associated Hazelwood Power
Station.12 Although the greenhouse gas emissions were an indirect rather than a direct
impact of the mining project, the Tribunal held that they had to be considered by
the government because the plaintiff environmental organizations had submitted
evidence about these impacts and this was a “relevant submission” under Victoria™s
Planning and Environment Act of 1987 (PE Act).13

Australian Bureau of Agricultural Resources and Economics (ABARE)/Department of Indus-
9

try, Tourism and Resources, Energy in Australia 2005, at 6 and 11 (2005), available at http://
abareonlineshop.com/PdfFiles/energy2005_parta.pdf (last visited February 27, 2009).
Kyoto Protocol to the U.N. Framework Convention on Climate Change, Dec. 10, 1997, art. 3,
10

U.N. Doc. FCCC/CP/1997/L.7/Add.1, 37 I.L.M. 22 (1997), available at http://unfccc.int/resource/
docs/convkp/kpeng.pdf (last visited February 27, 2009). Australia ultimately rati¬ed the Kyoto Protocol
on December 3, 2007.
For further information about legal approaches to address climate change in Australia, see the web-
11

site announcing the launching of the Australian Climate Justice Project in July 2003, available at
http://www.cana.net.au/index.php?site_var=333 (last visited February 27, 2009).
Australian Conservation Foundation v. Minister for Planning [2004] VCAT 2029 (October 29, 2004),
12

available at http://www.austlii.edu.au/au/cases/vic/VCAT/2004/2029.html (last visited February 27,
2009) [hereinafter Hazelwood Decision].
Full text of the PE Act is available at http://www.dms.dpc.vic.gov.au/Domino/Web_Notes/LDMS/
13

PubLawToday.nsf/a12f6f60fbd56800ca256de500201e54/72df64b9bbadb89eca256ec3000084ef/$FILE/
87“45a074.pdf (last visited February 27, 2009) [hereinafter PE Act].
Litigating Climate Change at the Coal Mine 51


International Power™s Hazelwood Power Station is Australia™s sixth-largest power
station, and it supplies the state of Victoria with more than 20 percent of its baseload
electricity.14 The power station burns brown coal mined in the nearby Latrobe
Valley, home to almost all of Australia™s brown coal reserves.15 Before it was purchased
by International Power in 1996, the Hazelwood Power Station and the associated
Hazelwood mine were owned and operated for more than thirty years by the State
Electricity Commission of Victoria.16
In 2005, the environmental organization WWF labeled Hazelwood the dirtiest
power station in the industrialized world.17 Indeed, even as compared with other
brown coal power stations in the state of Victoria, Hazelwood consistently emits larger
quantities of greenhouse gases per unit of power produced.18 The Hazelwood Power
Station is Australia™s largest single source of greenhouse gas emissions, accounting
for 9 percent of Australia™s total carbon dioxide pollution from power generators,
an amount roughly equal to the greenhouse gas emissions of the entire ¬‚eet of
3.6 million cars in Victoria.19
In 2003, Hazelwood requested permission to open up and dredge a new part of
the associated coal ¬eld referred to as the West Field. Hazelwood™s operating mines
had suf¬cient brown coal to fuel the power station only until 2009, and the mine
expansion would provide enough coal for the station to remain operational until
2031.20 Because the proposed project required the relocation of a highway and a river,
International Power was required to seek an amendment to the Latrobe Planning
Scheme under the PE Act.21 International Power was also required to prepare an
Environmental Effects Statement (EES) under Victoria™s Environmental Effects


Environmental Effects Act 1978, Hazelwood Mine West Field project (Phase 2) Assessment, at 1
14

(September 2005); The Australia Institute, Victoria™s Greenhouse Policy: The Moment of Truth, at 1
(May 2005), available at http://www.tai.org.au/documents/downloads/WP75.pdf (last visited February
27, 2009) [hereinafter Victoria™s Greenhouse Policy].
Coal Mineral Fact Sheets, available at http://www.australianminesatlas.gov.au/education/fact_sheets/
15

coal.jsp (last visited February 27, 2009). See also International Power Hazelwood, International Power
Hazelwood Business Report, at 31 (2004), available at http://www.ipplc.com.au/_modules/Uploader/_
uploaderBin/jbrinkworth/de491eb69a3126a3a352825375abfaec2004AnnualBusinessEnviroSocial
Report.pdf (last visited February 27, 2009) [hereinafter IPH Business Report].
Environmental Effects Act 1978, Hazelwood Mine West Field Project (Phase 2) Assessment, at
16

1 (September 2005), available at http://www.dse.vic.gov.au/CA256F310024B628/0/710B0D60BA19961
FCA2572F900136F87/$File/Hazelwood+Mine+West+Field+-+Ministers+Assessment.pdf (last vis-
ited February 27, 2009) [hereinafter Hazelwood Mine Assessment].
WWF “ Australia, Hazelwood Tops International List of Dirty Power Stations (July 13, 2005), available
17

at http://wwf.org.au/news/n223 (last visited February 27, 2009) [hereinafter WWF].
Charles Berger (Australian Conservation Foundation) and Tricia Phelan (Environment Victoria),
18

Greenhouse Pollution Intensity in the Victorian Brown Coal Power Industry (May 2005), available at
http://www.envict.org.au/¬le/Greenhouse_Brown_Coal_05.pdf (last visited February 27, 2009).
Victoria™s Greenhouse Policy, supra note 14, at 1“2; Greenpeace Australia Paci¬c, Power Station
19

Comes to Bracks (September 5, 2005), available at http://www.greenpeace.org/australia/news-and-
events/news/Climate-change/power-station-comes-to-bracks (last visited February 27, 2009).
Hazelwood Mine Assessment, supra note 16, at 1.
20

Hazelwood Decision, supra note 12, at paragraph 4.
21
Lesley K. McAllister
52


Act (EE Act) of 1978.22 The Minister for Planning appointed a panel to jointly
consider the suf¬ciency of the EES under the EE Act and submissions regarding
the amendment to the planning scheme under the PE Act.23
As part of the EES, International Power was required to discuss the direct effects of
the coal mining operation on the atmosphere, including the emission of greenhouse
gases from dredging the coal.24 However, the Minister issued “terms of reference”
to the panel for judging the suf¬ciency of the EES that instructed them that, when
analyzing the environmental impacts of the project, they were not to consider
greenhouse gas emissions from the burning of coal at the Hazelwood power plant.25
The panel thereafter held a hearing and informed interested parties that it would
abide by the terms of reference handed down by the Minister and would not consider
the greenhouse gas emissions from the power plant in either the EES or in written
submissions under the PE Act.26 In August 2004, the panel held a hearing and
considered a submission from the Australian Conservation Foundation (ACF) that
presented testimony from an expert witness regarding the environmental impacts
that would be caused by the burning of the mined coal.27 Although the panel heard
the submission, it said it would not consider it because it was outside the scope of
the terms of reference.28
Soon after, four conservation groups, including the ACF, ¬led suit claiming that
the panel failed to comply with the PE Act.29 The Act states, in relevant part, “a panel
appointed to consider submissions about an amendment to a planning scheme must
consider all submissions referred to it and give a reasonable opportunity to be heard
to any person who has made a submission referred to it.”30 In October 2004, the
Tribunal issued its decision, agreeing with plaintiffs that the panel failed to comply
with the PE Act. According to the Tribunal, the panel was obligated to consider “all
relevant submissions,” which included all submissions that raise “planning issues”
and are “about an amendment.” Applying this test, the Tribunal found that the
plaintiffs™ submissions regarding the environmental impacts of greenhouse gases
from the coal to be mined at Hazelwood were relevant.
The Tribunal held that greenhouse gas emissions are planning issues because the
PE Act includes as objectives of planning “the maintenance of ecological processes”
and the balancing of the “present and future interests of all Victorians.”31 According


Hazelwood Decision, supra note 12, at paragraph 5.
22

Id. at paragraph 8.
23

Hazelwood Decision, supra note 12, at paragraph 5.
24

Id. at paragraph 10.
25

Id. at paragraph 12.
26

Id. at paragraph 20.
27

Id. See also Climate Change Litigation: Analysing the Law, Scienti¬c Evidence & Impacts on the
28

Environment, Health & Property 60 (Joseph Smith & David Shearman eds., 2006).
Other plaintiffs in the case included WWF Australia, Environment Victoria, and the Climate Action
29

Network Australia.
PE Act, supra note 13, at Section 24. See also Hazelwood Decision, supra note 12, at paragraph 23.
30

Hazelwood Decision, supra note 12, at paragraph 38.
31
Litigating Climate Change at the Coal Mine 53


to the Tribunal, “ecological processes” include processes within the atmosphere of
the earth, including its chemistry and temperature.32 The Tribunal also acknowl-
edged that the use of energy resources in the present may have a cost to future
generations. Thus, submissions that deal with the emission of greenhouses gases are
not only environmental issues but also planning issues that panels are required to
consider under the PE Act.
The Tribunal determined, moreover, that the ACF™s submission was “about an
amendment” because the greenhouse gases emitted by the power plant are a suf¬-
ciently related effect of the amendment to the zoning ordinance. According to the
Tribunal, a submission is about an amendment even if it “relates to an indirect effect
of the amendment, if there is a suf¬cient nexus between the amendment and the
effect.”33 The suf¬ciency of the nexus can be assessed by considering “whether the
effect may ¬‚ow from the approval of the amendment; and if so, whether, having
regard to the probability of the effect and the consequence of the effect (if it occurs),
the effect is signi¬cant in the context of the amendment.”34
In ¬nding that it was necessary to consider indirect effects, the Tribunal followed
a 2004 decision of the Federal Court of Australia that held that indirect as well as
direct effects should be considered under Australia™s Environment Protection and
Biodiversity Conservation Act (EPBC Act).35 In this case, referred to as the Nathan
Dam case, the Court considered whether an environmental impact study for the
construction of a dam could exclude the effects on the Great Barrier Reef World
Heritage Area that would likely result from the increase in irrigated agriculture that
the dam would enable.36 The Court held that the meaning of “all adverse impacts”
was not con¬ned to direct physical impacts but also included indirect impacts and
effects “which are suf¬ciently close to the action to allow it to be said, without
straining the language, that they are, or would be, the consequences of the action on
the protected matter.”37 The Court thus held that the Minister of the Environment
must consider the downstream pollution by irrigators as an impact of the dam.
Similarly, the Victorian Tribunal found that, although the greenhouse gases from
Hazelwood Power Station are not a direct effect of the amendment enabling more
coal mining, they were an indirect effect. As reasoned by the Tribunal, if the amend-
ment was approved, there would be a greater likelihood that the power plant would


Id. at paragraph 43.
32

Id. at paragraph 41 (emphasis in the original).
33

Id.
34

Full text of the EPBC Act is available at http://www.austlii.edu.au/au/legis/cth/consol_act/
35

epabca1999588/ (last visited February 27, 2009); for more information about the EPBC Act, see
http://www.deh.gov.au/epbc/ (last visited February 27, 2009).
Minister for the Environment and Heritage v. Queensland Conservation Council Inc. [2004] 139
36

FCR 24 (30 July 2004), available at http://www.austlii.edu.au/au/cases/cth/FCAFC/2004/190.html (last
visited February 27, 2009) [hereinafter Nathan Dam Decision]. This decision af¬rmed the judgment
of a single judge of the Federal Court of Australia, Queensland Conservation Council Inc. v. Minister
for Environment and Heritage [2003] FCA 1463 (19 December 2003).
Nathan Dam Decision, supra note 36, at paragraph 53.
37
Lesley K. McAllister
54


remain operational past 2009.38 If this happened, there would be a greater likelihood
that more greenhouse gases would be emitted, which might constitute a signi¬cant
environmental effect.39 Thus, the greenhouse gases released by Hazelwood are not
only planning issues, but are also a result of the amendment and must be considered
before the panel can recommend that the planning amendment be enacted.40
Once the Tribunal handed down its decision in 2004, the panel reconsidered
whether to recommend that the government approve the West Field expansion.41
After hearing and considering submissions about greenhouse gas emissions from the
burning of the coal, the panel released a report in April 2005 recommending that the
Victorian government permit the extension of the coal mine.42 The panel placed
some importance on the fact that there were ongoing negotiations for an agreement
between the government and International Power Hazelwood that would provide
for the reduction of greenhouse emissions from the Hazelwood Power Station. The
panel voiced its support for the successful conclusion of this negotiation.43
In September 2005, the Victorian government issued its approval of the mine¬eld
expansion, thus granting Hazelwood access to 43 million tons of coal that would allow
the power station to remain operational through 2031. The government concurrently
announced that International Power Hazelwood had signed the Greenhouse Gas
Reduction Deed, the centerpiece of which was a cap on the total amount of carbon
dioxide emissions that the Hazelwood Power Station could produce during the
remainder of its operating life.44 The cap was set at 445 million tons, an expected 7
percent reduction in the plant™s emissions during the life of the deed, after which
the plant must close down.45

Hazelwood Decision, supra note 12, at paragraph 47.
38

Id.
39

Id. at paragraph 49.
40

The Department of Premier and Cabinet for the Victorian Government, Hazelwood Agreement to
41

Secure Victoria™s Energy Supply While Reducing Greenhouse Emissions (September 6, 2005), avail-
able at http://www.legislation.vic.gov.au/domino/Web_Notes/newmedia.nsf/798c8b072d117a01ca256
c8c0019bb01/ce988ef03b5c71d4ca25707500082f68!OpenDocument (last visited February 27, 2009).
Victorian Department of Sustainability and Environment, Final Panel Report “ Hazelwood West
42

Field EES La Trobe Planning Scheme Amendment C32 (March 2005) at 216“17, available at
http://www.dse.vic.gov.au/CA256F310024B628/0/62EC957E3BFDFD77CA2572F900138DD6/$File/
Hazelwood+Mine+West+Feild+-+Panel+Report+Ch1-12.pdf (last visited February 27, 2009).
Id. at 177 and 185. These negotiations were also mentioned in the Tribunal™s decision, which cited a
43

letter written by the Minister for Planning on August 11, 2004 (shortly after the ¬rst panel convened
and well before the litigation commenced), stating, “The full development of the West Field beyond
the existing licence boundary will be subject to an agreement being reached between Government
and IPHR. As is publicly known, the Minister™s intention is that greenhouse gas emissions from the
Power Station associated with any coal outside the existing licence boundary should be substantially
reduced.” Hazelwood Decision, supra note 12, at paragraph 19.
The Greenhouse Gas Reduction Deed is available at http://www.dpi.vic.gov.au/dpi/dpinenergy.nsf/
44

childdocs/-3f827e74c37e0836ca25729d00101eb0-866b51f390263ba1ca2572b2001634f9-
3cd640176546d95fca2572b2008396f1?open (last visited February 27, 2009) [hereinafter Deed].
Deed, supra note 44, at Section 2.1. However, under Section 8, this cap only applies to the boilers that
45

are in existence at the time the Deed is entered into. As such, if Hazelwood obtains the government™s
approval to build new boilers, those boilers will not fall under the scope of the Deed. See also
Australian Power Plant Agrees to Reduce Emissions in Deal to Expand Lifespan, 28 Int™l Envtl. Rep.
683 (September 21, 2005).
Litigating Climate Change at the Coal Mine 55


The Deed also established six-year milestones for cumulative greenhouse gas
emissions and a system whereby Hazelwood could earn “emissions offset credits” if
the company invested in wind power and other renewable sources of energy.46 Earn-
ing these credits would allow Hazelwood to exceed the six-year emissions milestones
but would not alter the total cap placed on its emissions. The power station was
required to submit reports to the government every six years when the intermediate
targets had been set regarding the total carbon dioxide emitted from the plant and
the number of credits received for emission offsets.47
The Deed sought to spur emissions reductions at Hazelwood in a couple of other
ways. In addition to capping the total emissions from the station, the Deed required
that the station use the best “commercially viable” means to reduce its carbon dioxide
intensity.48 Also, Hazelwood was required to submit annual reports to the Environ-
ment Minister discussing any technological advances discovered through internal
research and development that might reduce the station™s carbon dioxide emissions.
Although it was the ¬rst legal agreement of its kind, the Deed was criticized by
many for being too lenient. The ACF observed that because the six-year pollution
milestones were not binding on the power plant, it could pollute at its current rate
until 2030.49 The ACF also expressed concern over language in the Deed to the
effect that the plant would be treated “equitably” by the government in any future
greenhouse gas legislation.50 Finally, the group doubted Hazelwood™s ability to com-
ply with the deed, given its history as the worst performer of the ¬ve brown coal power
plants in the Latrobe Valley.51 Another critic of the Deed, Environment Victoria,
referred to the deed as containing “trivial “ and partly unenforceable “ environmen-
tal commitments.”52 Yet, despite the environmentalists™ ultimate dissatisfaction with
the outcome, the Hazelwood decision was an important victory. It was the ¬rst time
in Australia that a government agency was required to consider the implications of
greenhouse gas emissions from burning coal as part of approving a mining project.


2.2. The Isaac Plains and Sonoma Mines Case
In the Isaac Plains and Sonoma Mines case, the environmental group Wildlife
Preservation Society of Queensland (WPS) sought judicial review in Federal Court

Deed, supra note 44, at Sections 2.1 and 2.4.
46

Id., at Section 2.1.
47

Id., at Section 2.2.
48

Australian Conservation Foundation, Help Slash Climate Pollution: Object to the Expansion of Aus-
49

tralia™s Dirtiest Power Station, available at http://www.acfonline.org.au/news.asp?news_id=589 (last
visited February 27, 2009).
Id.
50

Australian Conservation Foundation, Victoria™s Polluting Power Stations Revealed (May 17, 2005),
51

available at http://www.acfonline.org.au/news.asp?news_id=81 (last visited February 27, 2009).
See website of Environment Victoria at http://www.envict.org.au/inform.php?menu=5&submenu=
52

475&item=1019 (last visited February 27, 2009); for criticism by Greenpeace, see Greenpeace Aus-
tralia Paci¬c, Wrong Way, Go Back! Steve Bracks Condemns Victoria to Climate Change (September
6, 2005), available at http://www.greenpeace.org/australia/news-and-events/media/releases/climate-
change/wrong-way-go-back-steve-brac (last visited February 27, 2009).
Lesley K. McAllister
56


of two decisions of the Federal Ministry for Environment and Heritage.53 The
Ministry had determined that the proposed Isaac Plains and Sonoma Coal mining
projects did not constitute “controlled actions,” and as a result they did not require
approval under the federal Environment Protection and Biodiversity Conservation
Act 1999 (EPBC Act). The Court found in favor of the Minister, declining to ¬nd
a suf¬cient nexus between the proposed projects and the alleged climate change
impacts.
The EPBC Act sets forth the environmental responsibilities of the federal or
“commonwealth” government and speci¬es seven “matters of national environmen-
tal signi¬cance” with respect to which the federal government can legislate.54 These
matters include World Heritage properties, national heritage places, wetlands of
international importance, threatened species and ecological communities, migra-
tory species, commonwealth marine areas, and nuclear actions including uranium
mining.55
The Act requires government assessment and approval of any actions that are likely
to have a signi¬cant impact on a matter of national environmental signi¬cance. Any
person proposing to take an action that will, or is likely to, have a signi¬cant impact
on a matter protected by the EPBC Act must submit to the Minister a referral that
contains information about the proposed action.56 If the Minister determines that
approval is required under the EPBC, the proposed action is called a “controlled
action,” and the proposal must go through a formal assessment and approval process
before it can proceed.57 Depending on the nature of the action and its likely signi¬-
cance, the Minister determines whether the preparation of an environmental impact
statement or another assessment approach is most appropriate.58 Once the required
assessments are performed, the Minister has the power to deny approval to a project
or grant approval subject to conditions that mitigate the environmental impact.
In October 2005, WPS brought suit against the Minister for the Environment and
Heritage, Bowen Coal, and QCoal for their alleged failure to comply with the EPBC
Act.59 In April 2005, Bowen Coal had submitted to the Ministry a referral regarding


Wildlife Preservation Society of Queensland Proserpine/Whitsunday Branch Inc. v. Minister for
53

the Environment and Heritage & Ors [2006] FCA 736 (June 15, 2006); available at http://www.
austlii.edu.au/au/cases/cth/federal_ct/2006/736.html (last visited February 27, 2009) [hereinafter Isaac
Plains Decision].
Department of the Environment and Water Resources, EPBC Act “ Environment Assessment Process,
54

available at http://www.environment.gov.au/epbc/publications/pubs/assessment-process.pdf (last vis-
ited February 27, 2009) [hereinafter EPBC Act summary]. Enacted in 1999, the Act replaced several
major environmental statutes, including the Environment Protection (Impact of Proposals) Act 1974;
the Endangered Species Protection Act 1992; the National Parks and Wildlife Conservation Act 1975;
and the World Heritage (Properties Conservation) Act 1983. Richard B. Stewart, A New Generation of
Environmental Regulation?, 29 Cap. U. L. Rev. 21, 182 (2001).
EPBC Act summary, supra note 54.
55

Id.
56

Id.
57

Stewart, supra note 54, at 161. See also EPBC Act summary, supra note 54.
58

Isaac Plains Decision, supra note 53.
59
Litigating Climate Change at the Coal Mine 57


the construction and operation of a coal mine, known as the Isaac Plains Project,
which would produce an estimated 18 million tons of coal for export over a lifetime
of nine years.60 Also in April 2005, QCoal had proposed to construct and operate a
coal mine, known as the Sonoma Coal Project, which would produce an estimated
30 million tons over a lifespan of ¬fteen years. This coal was primarily destined for
export, but some would be used domestically.61
Soon after the companies™ proposals were submitted, WPS made public submis-
sions to the Ministry suggesting that the climate change“related impacts of each
project required that they be considered controlled actions. WPS argued that the
burning of the coal that would be mined would have climate change impacts that
would adversely affect the Great Barrier Reef World Heritage Area and the Wet
Tropics World Heritage Area. Studies were cited that showed that global warming
could cause the collapse of coral populations and terrestrial biodiversity in tropical
areas.62
In May 2005, the Minister issued decisions determining that neither project was
a controlled action under the EPBC Act63 because neither was likely to have a
signi¬cant impact on matters of national environmental signi¬cance. In July, WPS
applied for judicial review of both decisions, alleging that the Minister had not
considered the effects of greenhouse gases generated in the mining, transportation,
and burning of the coal extracted from the mines.64 WPS based its argument in part
on the absence of express references to climate change impacts in the Ministry™s
“statements of reasons” for its decisions.65
Several weeks before the October 2005 trial, the Ministry bolstered its defense
by submitting to the Court an af¬davit from the delegate of the Minister who had
made the decision. The delegate stated that he had given detailed consideration to
greenhouse gases from the mines.66 He explained that he had viewed the greenhouse
gas emissions that would be produced from the mining, shipping, and use of the coal
from each project in relation to the “greenhouse gases currently in the atmosphere”
and the “total annual global contributions from greenhouse gases from all global
sources” and concluded that they represented only a “relatively small contribution”
that was unlikely to have a “signi¬cant impact” on matters of national signi¬cance

Applicant™s Outline of Submissions and Summary of Relevant Facts (¬led October 10, 2005) at
60

paragraphs 11 and 12 [hereinafter Isaac Plains Applicant™s Outline].
Id. at paragraphs 26 and 27.
61

Id. at paragraph 16.
62

Id. at paragraphs 19 and 31.
63

Application for an Order of Review, ¬led 20 July 2005, available at http://www.envlaw.com.au/
64

whitsunday11.pdf (last visited February 27, 2009).
Isaac Plains Applicant™s Outline, supra note 60, at paragraph 6. See also Chris McGrath, Fed-
65

eral Court Case Challenges Greenhouse Gas Emissions from Coal Mines, at 2; available at
http://www.envlaw.com.au/whitsunday19.pdf (last visited February 27, 2009) [hereinafter McGrath].
Id.; Af¬davit of Mark Flanigan, in the case of Wildlife Preservation Society of Queensland Proser-
66

pine/Whitsunday Branch Inc. v. Minister for the Environment and Heritage (October 2005), available
at http://www.envlaw.com.au/whitsunday14.pdf (last visited February 27, 2009) [hereinafter Flanigan
Af¬davit].
Lesley K. McAllister
58


protected under the Act.67 The delegate stated that the link between the greenhouse
gases produced by this coal and a “measurable or identi¬able” change in climate “was
speculative only and unlikely to be demonstrable.” He also cited the “speculative
and uncertain” nature of how the coal would be used at its export destinations.68
WPS argued that the af¬davit should be given little or no weight because it
“reads like a document prepared in response to the litigation and not as an accurate
recounting of the true reasoning process that in fact occurred.”69 WPS further argued
that the question of whether the mining projects were likely to have a “signi¬cant
impact” under the Act should be addressed by asking whether the contribution
to global warming emissions from the mines was signi¬cant at a national level
in comparison with other actions in Australia contributing to global warming.70
WPS calculated the amount of greenhouse gases emitted by the coal mined in these
projects was roughly equivalent to 25 percent of Australia™s greenhouse gas emissions
and 0.6 percent of global emissions from fossil fuels in 2003.71
In a decision issued on July 15, 2006, the Court dismissed WPS™s suit.72 The Court
gave credence to the Ministry™s defense that climate change had been considered in
the decision-making process. The Court found that the Ministry acted lawfully in
considering greenhouse gas emissions from the projects and found no link between
these emissions and any speci¬c damage to the matters of national signi¬cance
protected under the Act.
The Court thus arguably limited the principle announced in the Nathan Dam
decision requiring the Minister to consider both the direct and indirect impacts of a
project. The Court references the Nathan Dam decision only in the ¬nal paragraph
of the opinion, stating that this case is “far removed from the factual situation” in
that case.73 The Court pointed out that the applicants in this case had not shown that
the emissions from this coal would “directly affect” protected matter, nor had they
identi¬ed the “extent (if any)” to which emissions from this coal would aggravate
the climate change problem.74 As the Court stated, “I am far from satis¬ed that
the burning of coal at some unidenti¬ed place in the world, the production of
greenhouse gases from such combustion, its contribution toward global warming
and the impact of global warming upon a protected matter” could be said to be


Flanigan Af¬davit, supra note 66, at paragraphs 17“20.
67

Id. at paragraphs 22“27.
68

Isaac Plains Applicant™s Outline, supra note 60, at paragraph 5“6.
69

Environmental Defender™s Of¬ce of North Queensland, EDO Alert! Climate Change
70

Case (November 2, 2005), available at http://www.edo.org.au/edonq/images/stories/documents/
climate_nov_2005_alert.pdf (last visited February 27, 2009) [hereinafter EDO Alert]. See also Appli-
cation for an Order of Review (Version 3), in the case of Wildlife Preservation Society of Queensland
Proserpine/Whitsunday Branch Inc. v. Minister for the Environment and Heritage (October 2005),
available at http://www.envlaw.com.au/whitsunday15.pdf (last visited February 27, 2009).
EDO alert, supra note 70.
71

Isaac Plains Decision, supra note 53.
72

Id. at paragraph 72.
73

Id.
74
Litigating Climate Change at the Coal Mine 59


an impact of the proposed action.75 Whereas the Nathan Dam case stands for the
principle that indirect effects of a proposed action must be considered, this case
stands for the principle that indirect effects that are not speci¬cally identi¬able and
measurable need not be considered as impacts.
Some Australian commentators argue that the Court™s decision in this case makes
clear that the EPBC Act needs express greenhouse gas language to protect the
Australian environment from the impacts of climate change. As explained by one
advocate, “The decision in this case shows that the emissions from the use of the
coal from the mines are effectively not regulated under the EPBC Act, which
indicates an important gap in the ability of that Act to genuinely protect the matters
of national signi¬cance it recognizes as warranting protection.”76 Environmental
advocates suggest that the EPBC Act be amended to include a “greenhouse trigger”
under which a proposed project would be considered to be a controlled action if its
projected greenhouse gas emissions exceed a certain threshold amount.77 Soon after
the passage of the Act in 1999, the Australian government investigated a greenhouse
trigger and drafted a regulation that would have created it.78 But the regulation was
never adopted. If it had been, these coal mining projects would likely have been
classi¬ed as controlled actions, and thus been subject to requirements for more
detailed assessments of their potential emissions and their implications.


2.3. The Anvil Hill Case
Another important climate change case arose in the Australian state of New South
Wales.79 In November 2006, the New South Wales Land and Environment Court
decided that the state government™s acceptance of an environmental assessment for
a new coal mine, the Anvil Hill project, was invalid because the government had
not required consideration of the greenhouse gas emissions from the burning of the
mined coal.
Centennial Coal (Centennial) applied to the New South Wales Department of
Planning to construct a new coal mine at Anvil Hill under the state™s Environmental
Planning & Assessment (EP&A) Act in January 2006.80 Located in the Hunter Valley,
the largest coal-producing region in New South Wales, Anvil Hill is the “largest

Id.
75

McGrath, supra note 65, at 4.
76

Id. at 2.
77

Id. at 5. In the draft regulation, the government included a trigger of 500,000 tons of CO2 -equivalent
78

emissions in any twelve-month period. The Australian Network of Environmental Defenders Of¬ce
recommended a trigger of 100,000 tons of CO2 -equivalent emissions. Id.
Gray v. Minister for Planning and Ors [2006] NSWLEC 720, decision available at http://www.lawlink.
79

nsw.gov.au/lecjudgments/2006nswlec.nsf/61f584670edbfba2ca2570d40081f438/dc4df619de3b3f02ca
257228001de798?OpenDocument (last visited February 27, 2009) [hereinafter Anvil Hill Decision].
Environmental Planning and Assessment Act 1979, Part 3A, available at http://www.austlii.edu.au/
80

au/legis/nsw/consol_act/epaaa1979389/ (last visited February 27, 2009) (concerning the approval pro-
cess for major infrastructure or other development of state or regional signi¬cance) [hereinafter EP&A
Act].
Lesley K. McAllister
60


intact stand of remnant vegetation” in the region, with signi¬cant biodiversity.81 The
proposed Anvil Hill project would produce up to 10.5 million tons of coal per year
over its projected lifetime of twenty-one years, increasing the state™s coal output by
20 percent.82 The majority of it was destined for export.83
In April 2006, the Department issued to Centennial the environmental assess-
ment requirements applicable to the Anvil Hill project.84 Included was a require-
ment that the proponent address “Air Quality “ including a detailed greenhouse gas
assessment.”85 Centennial™s completed environmental assessment was made public
in August 2006.86 The assessment included an analysis of the greenhouse gas emis-
sions from the mining of the coal itself but not from the subsequent burning of
the mined coal. On September 19, 2006, the Department directed that a “panel of
experts” responsible for holding public hearings and providing expert advice on the
proposal be constituted.87
Also on September 19, 2006, Peter Gray, a local environmentalist, ¬led a lawsuit
against the Department in the New South Wales Land and Environment Court
alleging a violation of the state EP&A Act. The applicant argued that the Department
violated the Act by accepting as adequate an environmental assessment that failed
to consider all potential greenhouse gas emissions and take into account principles
of ecologically sustainable development such as the precautionary principle and
intergenerational equity.88 The following month, the Department requested and
Centennial prepared an analysis of greenhouse gas emissions from the burning of
the coal in response to submissions by various individuals and organizations both

Anvil Hill Alliance website, available at http://www.anvilhill.org.au/ (last visited February 27, 2009).
81

Executive Summary of the Environmental Assessment, Anvil Hill project, at 1 (August 2006), avail-
82

able at http://www.umwelt.com.au/anvil-hill/ (last visited February 27, 2009) [hereinafter Anvil Hill
Environmental Assessment]. See also Anne Davies, Appeal on Green Ruling Likely, Sydney Morning
Herald (November 29, 2006), available at http://www.smh.com.au/news/national/appeal-on-green-
ruling-likely/2006/11/28/1164476204759.html (last visited February 27, 2009).
Anne Davies, Landmark Climate Change Ruling Puts Heat on Industry, Sydney Morning Her-
83

ald (November 28, 2006), available at http://www.smh.com.au/news/environment/landmark-climate-
change-ruling-puts-heat-on-industry/2006/11/27/1164476140463.html (last visited February 27, 2009)
(stating that 80 percent would be exported). See also Anvil Hill Decision, supra note 79, at para-
graph 4 (stating that “about half the coal” is intended for export).
Director-General™s Requirements, Section 75F of the Environmental and Planning Assessment
84

Act 1979, available at http://www.planning.nsw.gov.au/asp/pdf/anvil_hill_environmental_assessment_
requirements.pdf (last visited February 27, 2009).
Anvil Hill Decision, supra note 79, at paragraphs 16“17.
85

Id. at paragraph 21.
86

Id. at paragraph 25. See also Frank Sartor, Minister for Planning, Direction: Section 75F of
87

the Environmental and Planning Assessment Act 1979, available at http://www.planning.nsw.gov.
au/asp/pdf/06_0014_panel_of_experts_terms_of_reference.pdf (last visited February 27, 2009), and
NSW Department of Planning, Independent Panel to Review Anvil Hill Coal Mine Proposal (Octo-
ber 6, 2006), available at http://www.planning.nsw.gov.au/mediarelplan/mr20061006_426.html (last
visited February 27, 2009).
Anvil Hill Decision, supra note 79, at paragraphs 35“45. Section 5 of the EP&A Act includes the
88

encouragement of “ecologically sustainable development” as one of its objects, de¬ned as in Section
6(2) of the New South Wales Protection of the Environment Administration Act 1991 to include
implementation of, inter alia, the precautionary principle and intergenerational equity. See Anvil Hill
Decision supra note 79, at paragraph 101.
Litigating Climate Change at the Coal Mine 61


before and after the assessment was made public. Centennial™s analysis found that
the coal mined at Anvil Hill would result in the emission of an average of 12.5 million
tons of greenhouse gases per year, an annual amount equivalent to about 2 percent
of Australia™s total greenhouse gas emissions in 2004.89
The Court issued its decision on November 27, 2006.90 Following the Nathan
Dam case and distinguishing the Isaac Plains and Sonoma Mine case, the Court held
that the EP&A Act required that the environmental assessment consider indirect
greenhouse gas emissions that would result from the burning of the coal on the basis
that there is “a suf¬ciently proximate link between the mining of a very substantial
reserve of thermal coal in [New South Wales], the only purpose of which is for use
as a fuel in power stations, and the emission of GHG which contribute to climate
change.”91 The Court also held that the Department™s failure to require Centennial
to consider indirect greenhouse gas emissions in the environmental assessment
violated the EP&A Act on the basis that it was inconsistent with the principle of
intergenerational equity and the precautionary principle.92
The Court, however, did not rule that the Anvil Hill project™s environmental
assessment was “void and without effect” as requested by the applicant.93 The Court
took into account the fact that an analysis of the indirect greenhouse gas emissions
had been submitted by Centennial in October 2006 and made publicly available by
the Department.94 The Court further observed that the panel of experts appointed
to review the proposal had been authorized by the Department to consider indirect
greenhouse gas emissions in its review of the project.95 Despite the limited remedy
granted by the Court, commentators consider the decision to be signi¬cant. Written
broadly, the decision appears to require all projects seeking approval in New South
Wales that directly or indirectly cause greenhouse gas emissions to include an
assessment of their contribution to global warming.96


3. CLIMATE CHANGE AS AN ENVIRONMENTAL IMPACT

The coal mining cases raise the question of whether and how climate change
impacts should be considered under Australian federal and state environmental and
planning laws. The issue, however, is not speci¬c to Australia; rather, it is an issue that
Anvil Hill Environmental Assessment, Response to Submissions, Part A, at 32 (October 2006), available
89

at http://www.planning.nsw.gov.au/asp/pdf/06_0014_response_to_submissions_parta.pdf (last visited
February 27, 2009).
According to the decision, the applicant conceded that if the analysis of greenhouse gas emissions
90

that was prepared in October 2006 in response to submissions had been part of the original assessment
released to the public as required under the EP&A Act, then he would not have had a legal claim.
Anvil Hill Decision, supra note 79, at 28.
Id. at paragraphs 90“93 and 97“100.
91

Id. at paragraphs 126 and 135.
92

Id. at paragraph 2.
93

Id. at paragraph 150.
94

Id.
95

Davies, supra note 83. See also Matthew Warren, Planning May Face Climate Test, The Australian
96

(November 28, 2006), available at http://www.theaustralian.news.com.au/story/0,20867,20832685-
30417,00.html (last visited February 27, 2009).
Lesley K. McAllister
62


is likely to increasingly arise under subnational and national environmental impact
laws in many countries. More than 100 countries have legal provisions relating to
environmental impact assessment, and citizens in many countries may have legal
recourse to compel or review their implementation.97
In the United States, the other major industrialized country not party to the Kyoto
Protocol, several cases have been ¬led regarding the assessment of climate change“
related impacts under the National Environmental Policy Act (NEPA),98 which
requires analysis of the environmental impacts of projects and policies that constitute
“major federal actions.”99 Civil society organizations, states, and cities have sued
federal agencies for not considering the greenhouse gas emissions resulting from
new transmission lines that would connect new power plants in Mexico to the U.S.
power grid;100 a rulemaking on new federal fuel ef¬ciency standards;101 providing
assistance in ¬nancing overseas fossil fuel projects;102 and a new rail line to transport
coal from mines in Idaho to power plants in the Midwest.103
Projects for which climate change impacts can be assessed are usefully categorized
into two types: those projects that directly emit greenhouse gases and those that cause
greenhouse gas emissions indirectly. Many projects that may require environmental
assessments for governmental approval, such as new coal-¬red power plants, directly
emit greenhouse gases. One study suggested that the United States would add 72 new
coal-¬red power plants between 2005 and 2012, while China and India together would
add 775 new plants.104 Together they would emit more than ¬ve times the amount
of greenhouse gases by which Kyoto countries are supposed to cut their emissions
over the same period.105 Other projects that directly emit signi¬cant amounts of
greenhouse gases include iron and steel plants, cement plants, land¬lls, and cattle
feedlots.106


Annie Donelly, Barry Dalal-Clayton & Ross Hughes, A Directory of Impact Assessment Guidelines 3“4
97

(2nd ed., International Institute for Environment, 1998).
42 U.S.C. §§ 4321“4347 (2000).
98

42 U.S.C. § 4332(2)(c). Under applicable regulations, “[m]ajor Federal action” is de¬ned to “includ[e]
99

actions with effects that may be major and which are potentially subject to Federal control and
responsibility.” 40 C.F.R. § 1508.18 (2003). Cf. Justin R. Pidot, Global Warming in the Courts: An
Overview of Current Litigation and Common Legal Issues, Georgetown Environmental Law & Pol-
icy Institute (2006), available at http://www.law.georgetown.edu/gelpi/current_research/documents/
GlobalWarmingLit_CourtsReport.pdf (last visited February 27, 2009).
Border Power Plant Working Group v. Department of Energy, 260 F. Supp. 2d 997 (S.D. Cal. 2003).
100

Center for Biological Diversity v. National Highway Traf¬c Safety Administration, No. 06071891 (9th
101

Cir. 2007).
Friends of the Earth, Inc. v. Watson, 2005 U.S. Dist. LEXIS 42335 (N.D. Cal., 2005).
102

Mayo Foundation v. Surface Transportation Board, No 06“2031 (8th Cir. 2006).
103

Mark Clayton, New Coal Plants Bury ˜Kyoto™: New Greenhouse-Gas Emissions from China, India, and
104

the US Will Swamp Cuts from the Kyoto Treaty, Christian Sci. Monitor (December 23, 2004),
available at http://www.csmonitor.com/2004/1223/p01s04-sten.html (last visited February 27, 2009).
Id.
105

U.S. EPA, Inventory of U.S. Greenhouse Gas Emissions and Sinks, 1990“2004, at ES-6 to ES-10 (2006),
106

available at http://www.epa.gov/climatechange/emissions/downloads06/06_Complete_Report.pdf
(last visited February 27, 2009).
Litigating Climate Change at the Coal Mine 63


Many other projects do not directly emit greenhouse gases but can be viewed
as leading to or causing greenhouse gas emissions. Indirect emissions are often
temporally and spatially dislocated from the project under consideration and may be
classi¬ed as either “downstream” or “upstream” indirect emissions.107 Downstream
emissions are those resulting from the products or processes that are outputs of the
project under consideration. As discussed previously, the most signi¬cant greenhouse
gas emissions related to coal mining occur when the mined coal is later burned
for energy production rather than when it is mined. New highways and motor
vehicle assembly plants can also be viewed as leading to downstream greenhouse gas
emissions because they facilitate the use of motor vehicles, which constitute more
than one-quarter of all greenhouse gas emissions in the United States.108 Upstream
emissions are emissions from products and processes that constitute necessary inputs
to the project under consideration. For example, a new factory requiring large
amounts of electricity to operate can be viewed as the cause of some of the greenhouse
gas emissions of the power plant that provides it with electricity. The upstream
emissions of a motor vehicle include the emissions associated with the collection,
transport, storage, and re¬nement of the fuel it burns.
Litigants in cases based on governmental failures to assess climate-related impacts
of project proposals encounter a host of barriers to favorable judicial resolution.
“Standing to sue” is potentially a prominent barrier in some jurisdictions, including
the United States. In Australia, standing has not emerged as a signi¬cant barrier, but
other important barriers loom. Where plaintiffs seek the assessment and consider-
ation of the impacts of greenhouse gas emissions directly caused by the proposed
project, measuring and predicting local and cumulative impacts is likely to present
a signi¬cant challenge. In cases such as the Australian coal mining cases where
plaintiffs seek consideration of the impacts of greenhouse gas emissions indirectly
caused by the proposed project, the dif¬culty of identifying such indirect emissions
must also be confronted. The issues of standing, the dif¬culty of measuring and
predicting cumulative and local impacts, and the dif¬culty of identifying indirect
emissions are discussed next in turn.


3.1. Standing to Sue
In some jurisdictions, environmental litigants in climate change cases may have
dif¬culty obtaining a favorable judgment because they are unable to establish that
they have “standing to sue.” In the Australia coal mining cases, standing did not
emerge as a barrier to litigants because the applicable statutes established very
broad standing requirements and the courts did not question the plaintiffs™ standing.


These terms have been used most extensively in the industrial ecology and energy ef¬ciency literatures.
107

David L. Greene & Andreas Schafer, Pew Center on Global Climate Change, Reducing Greenhouse
108

Gas Emissions from U.S. Transportation, at 2 (May 2003), available at http://www.pewclimate.org/
global-warming-in-depth/all_reports/reduce_ghg_from_transportation (last visited February 27, 2009).
Lesley K. McAllister
64


In climate change litigation in the United States, in contrast, standing is a more
controversial issue.109
Standing, in the words of the Supreme Court of the United States, is the ques-
tion of “[w]hether the litigant is entitled to have the court decide the merits of
the dispute.”110 It generally implicates the ability of a litigant to demonstrate to a
court that he is suf¬ciently connected to or harmed by the law or action that he
is challenging to justify his prosecution of the claim. Requirements for standing
vary signi¬cantly among national jurisdictions. Many jurisdictions have virtually no
standing requirements, while the U.S. judicial system has very extensive and detailed
requirements.111
As noted earlier, in the Australian context, the statutes applicable to each case
established very broad standing requirements. Under Victoria™s PE Act, a person
“who is substantially or materially affected by a failure of the Minister, a planning
authority, or a panel” to comply with the Act™s provisions regarding amendments to
the planning scheme is entitled to judicial review.112 New South Wales™s EP&A Act is
far more expansive in this context, stating that “[a]ny person may bring proceedings
in the Court for an order to remedy or restrain a breach of this Act.”113 The EPBC
Act sets forth “extended standing” for judicial review of administrative decisions
pursuant to the Act.114 Standing is extended to all Australian organizations that have
engaged in a series of activities in Australia “for protection or conservation of, or
research into, the environment” at any time in the preceding two years and whose
“objects or purposes” included such protection, conservation, or research.115 None
of the judicial opinions in the coal mining cases raised the lack of standing as an
issue.
U.S. courts, in contrast, have imposed standing requirements that are more likely
to present barriers to plaintiffs in climate change litigation. To have standing, a
plaintiff must show that he has suffered an actual or imminent injury that is “concrete
and particularized,” “fairly traceable to the challenged action of the defendant,” and


The U.S. Supreme Court™s decision in the case of Massachusetts v. Environmental Protection Agency,
109

549 U.S. 497 (2007), is demonstrative. The majority ruled that the state of Massachusetts had standing
to sue, but four justices vigorously dissented on this issue. See also David Hodas, Standing and
Climate Change: Can Anyone Complain about the Weather? 15 J. Land Use & Envtl. L. 451 (2000).
On standing in environmental cases generally, see Ann E. Carlson, Standing for the Environment, 45
U.C.L.A. L. Rev. 931 (1998).
Warth v. Seldin, 422 U.S. 490, 498 (1975).
110

See, e.g., Aharon Barak, Foreword: A Judge on Judging: The Role of a Supreme Court in a Democracy, 116,
111

Harv. L. Rev. 16, 106-10 (2002); Matt Handley, Comment: Why Crocodiles, Elephants, and American
Citizens Should Prefer Foreign Courts: A Comparative Analysis of Standing to Sue, 21 Rev. Litig. 97
(2002).
PE Act, supra note 13, at Section 39.
112

EP&A Act, supra note 80, at Section 123.
113

EPBC Act, Section 487, “Extended Standing for Judicial Review,” available at http://www.
114

frli.gov.au/ComLaw/Legislation/ActCompilation1.nsf/framelodgmentattachments/7274EE4D4BF1FB
60CA257000000B1F19 (last visited February 27, 2009).
Id.
115
Litigating Climate Change at the Coal Mine 65


likely to be “redressed by a favorable decision.”116 Defendants in climate change
cases may argue that plaintiff™s alleged injury is not suf¬ciently imminent because
it may not occur for many years; that it is general to society rather than particular
to the plaintiff because it may be experienced by so many people; and that it is
not suf¬ciently traceable to the defendant™s actions or would not be redressed by
a favorable judicial decision because the defendant™s actions constitute a small
percentage of all greenhouse gas emissions and the injury could occur regardless of
a change in the defendant™s actions.117
In the landmark case of Massachusetts v. EPA, the U.S. Supreme Court ruled
in favor of Massachusetts in deciding that the Environmental Protection Agency
(EPA) had the authority to regulate the emissions of greenhouse gases under the
Clean Air Act and that the EPA had not acted properly in declining to do so.118
Signi¬cantly, the Court determined that the state of Massachusetts had standing to
bring these claims. As the Court explained, “the rise in sea levels associated with
global warming has already harmed and will continue to harm Massachusetts. The
risk of catastrophic harm, though remote, is nevertheless real. The risk would be
reduced by some extent if petitioners received the relief they seek.”119 However,
while this case determined that the state of Massachusetts had standing, it left open
the question of whether private parties such as individuals and environmental groups
would have standing to bring such claims.120
Where plaintiffs challenge the government™s adherence to procedural laws such
as NEPA, standing requirements may be easier for plaintiffs to satisfy.121 In Friends of
the Earth v. Watson, plaintiffs alleged a violation of NEPA based on the failure of the
Export-Import Bank and the Overseas Private Investment Corporation to prepare an
environmental impact statement (EIS) before engaging in the ¬nancing of overseas
oil and gas extraction and energy generation projects that emitted large quantities
of greenhouse gases.122 The court held that to demonstrate standing in cases raising
procedural issues, environmental plaintiffs must show only that “it is reasonably

Friends of the Earth, Inc. v. Laidlaw Environmental Services, Inc., 528 U.S. 167, 180“81 (2000).
116

See the briefs for the respondents in the case of Massachusetts v. EPA, available at http://supreme.
117

lp.¬ndlaw.com/supreme_court/docket/2006/november/05“1120-massachusetts-v-environmental-
protection-agency.html (last visited February 27, 2009).
Massachusetts v. EPA, 549 U.S. 497 (2007).
118

Id. at 526.
119

The majority opinion emphasizes that because Massachusetts is a sovereign state, it deserved “special
120

solicitude” in resolving the standing issue. Id. at 536. In dissent, Chief Justice Roberts interprets the
majority™s decision as “an implicit concession that petitioners cannot establish standing on traditional
terms.” Id. at 540.
See Bradford C. Mank, Standing and Global Warming: Is Injury to All Injury to None? 35 Envtl. L.
121

1, 45“63 (2005) (discussing the current split among circuits on this question, wherein the Ninth and
Tenth Circuits have explicitly rejected a more stringent standard for NEPA standing set forth by the
D.C. Circuit).
Friends of the Earth, Inc. v. Watson, 2005 U.S. Dist. LEXIS 42335 (N.D. Cal., 2005). Environmental
122

groups and several cities sued the Overseas Private Investment Corp. (OPIC) and Export-Import Bank
of the United States for their alleged failure to comply with the National Environmental Protection
Act (NEPA).
Lesley K. McAllister
66


probable that the challenged action will threaten their concrete interests,” not that
substantive environmental harm is imminent.123 Moreover, the court held that cau-
sation and redressability standards are relaxed for plaintiffs that assert procedural
challenges and make the required showing as to injury.124 The court thus rejected
the defendants™ arguments that their role with respect to the overseas projects pro-
ducing greenhouse gas emissions was too “limited or attenuated” to demonstrate
causation.125 Plaintiffs satis¬ed the redressability standard by showing that a decision
of an agency “could be” in¬‚uenced by further environmental studies, rather than
showing that it necessarily “would” be in¬‚uenced.126
The question of whether standing presents a barrier to climate change litigants
thus depends upon where claims are ¬led and the nature of those claims. In Australia
and many other countries, environmental plaintiffs in climate change cases do not
encounter standing as a barrier to the same degree as in the United States. Further, in
some U.S. jurisdictions, plaintiffs suing under environmental impact laws for alleged
procedural violations encounter relaxed standing requirements under which they
are likely to prevail.

3.2. Cumulative and Local Impacts
Litigants seeking favorable judicial resolution in cases alleging an illegal governmen-
tal failure to consider greenhouse gas emissions as environmental impacts are likely
to be plagued by the dif¬culty of assessing the climate change impacts of a given
project. Project-related climate change impacts are dif¬cult to measure because of
the cumulative nature of climate change: it is the combined emissions of many
sources together over a long period of time that lead to elevated atmospheric levels
of greenhouse gases.127 Moreover, how climate change will be manifested in terms
of local impacts remains very dif¬cult to predict. Although much may depend on
the wording of the particular statute and regulations that a national court is applying,
courts are likely to be reluctant to order that a governmental agency assess climate
change impacts that are dif¬cult or impossible to predict and measure.
Although the quantity of greenhouse gases that a particular project will produce
may be ascertainable, any ultimate climate change impact is inherently a “cumula-
tive” impact. A single source of emissions would be unlikely to suf¬ciently increase
the concentration of greenhouse gases in the atmosphere to lead to a detectable
degree of global warming. Because climate change impacts are caused by the cumu-
lative activities of many sources, and because the concrete manifestations of climate
change remain uncertain, courts may conclude that the greenhouse gas emissions

Id. at 8“9.
123

Id. at 12.
124

Id. at 14“15.
125

Id. at 16“17.
126

Unlike many pollutants, greenhouse gases may not be harmful to human health or the environment at
127

all in small quantities. Rather, it is only when viewed cumulatively that there are potentially signi¬cant
adverse impacts.
Litigating Climate Change at the Coal Mine 67


of a single project cannot be said to cause global warming alone or to cause any
particular local environmental impact.128
The environmental and planning laws of national and subnational jurisdictions
are likely to vary with respect to the need to assess and consider cumulative impacts.
In the United States, NEPA regulations de¬ne cumulative impact as “the impact
on the environment which results from the incremental impact of the action [being
analyzed] when added to other past, present, and reasonably foreseeable future
actions regardless of what agency (Federal or non-Federal) or person undertakes
such other actions. Cumulative impacts can result from individually minor but col-
lectively signi¬cant actions taking place over a period of time.”129 Despite a clear
requirement that they be analyzed, cumulative impacts have presented many dif¬-
culties for project-based environmental assessments in the United States.130 Lacking
information about the impacts of past projects, as well as reasonably foreseeable
future actions, agencies struggle to assess both the cumulative impact and the
signi¬cance of the project™s contribution.131 And although the language is broad
enough to encompass climate change“related impacts, evidence suggests that many
environmental assessments and environmental impact assessments do not contain
cumulative impact analyses related to a project™s greenhouse gas emissions.132
Other jurisdictions may have statutory or regulatory language requiring that global
warming impacts be examined if the greenhouse gas emissions of a project are above

A similar issue arose in Massachusetts v. EPA within arguments over petitioners™ standing to sue.
128

Respondents argued that petitioners failed to demonstrate that the regulation they sought was likely to
affect climatic or environmental conditions in Massachusetts. Brief for the Federal Respondent, avail-
able at http://supreme.lp.¬ndlaw.com/supreme_court/briefs/05“1120/05“1120.mer.resp.fed.pdf (last vis-
ited February 27, 2009). The Supreme Court rejected this argument, explaining that “[a]gencies, like
legislatures do not generally resolve massive problems in one fell regulatory scoop . . . That a ¬rst
step might be tentative does not by itself support the notion that federal courts lack jurisdiction to
determine whether that step conforms to law.” 549 U.S. 497.
40 C.F.R. § 1508.7 (1989).
129

Cf. Robert L. Fischman, The EPA™s NEPA Duties and Ecosystem Services, 20 Stan. Envtl. L.J. 497,
130

512 (2001); See also Terence L. Thatcher, Understanding Interdependence in the Natural Environment:
Some Thoughts on Cumulative Impact Assessment under the National Environmental Policy Act, 20
Envtl. L. 611 (1990) (discussing the importance of cumulative impact analysis and the confusion
about it that stemmed from the Supreme Court case Kleppe v. Sierra Club, 427 U.S. 390 (1976)).
Fischman, supra note 130, at 513.
131

In 1997, the Council on Environmental Quality (CEQ) issued draft guidelines on how global climate
132

change should be treated under NEPA, but ¬nal guidelines were never issued. For the text of the draft
guidelines, see http://www.mms.gov/eppd/compliance/nepa/procedures/climate/considerations.htm
(last visited February 27, 2009). See also letter from Sierra Club to Western Area Power Administration,
Re: Big Stone II Expansion Proposal, DEIS Comments, dated July 24, 2006 (commenting that the
Draft EIS fails to address indirect and cumulative impacts of the project™s carbon dioxide emissions),
available at http://www.northstar.sierraclub.org/campaigns/air/coal/bigStoneProposal.html (last vis-
ited February 27, 2009); letter from Center on Biological Diversity to BLM, Re: Notice of Intent
(NOI) to Prepare a Programmatic EIS and Plan Amendments for Oil Shale and Tar Sands Resources
Leasing on Lands Administered by the BLM in Colorado, Utah, and Wyoming, dated January 31,
2006 (commenting that the NOI omitted the direct, indirect and cumulative impacts of green-
house gas emissions as an issue to be addressed), available at http://www.biologicaldiversity.org/swcbd/
Programs/policy/energy/BLM-Tar-Sands-Scoping-FINAL.pdf (last visited February 27, 2009).
Lesley K. McAllister
68


a certain threshold amount. Such provisions would be useful in preventing a court
from having to make a judgment call regarding the signi¬cance of a single project™s
emissions. Indeed, as discussed previously, Australian environmentalists have called
for the inclusion of such a trigger in the EPBC Act.133 Taking this approach, however,
raises the possibility that large projects would be burdened by the regulation while
even a larger number of separate small projects would be able to escape the regulatory
requirements.
Aside from the problem of cumulative impacts, there is a great deal of uncertainty
regarding how elevated levels of greenhouse gases will manifest as local environ-
mental impacts. Many subnational and national environmental and planning laws
are likely to be focused upon such impacts rather than general global impacts. In
the Isaac Plains and Sonoma case, for example, the judge interpreted the EPBC Act
to require plaintiffs to show impacts on speci¬c national protected areas in order to
prevail in their claim. The Court stated the plaintiffs “paid little or no attention to
the actual effect on any identi¬ed protected matter” and concluded that “[t]here has
been no suggestion that the mining, transportation or burning of coal from either
proposed mine would directly affect any such protected matter.” General assertions
pertaining to issues such as sea level rise, increasing or decreasing rainfall, and
changing average temperatures were not suf¬cient in this case.
In sum, the dif¬culty of ascertaining the impacts of global warming has been, and
is likely to continue to prove to be, an imposing barrier to plaintiffs in climate change
cases. The extent to which climate change is inherently a cumulative impact distin-
guishes it from many of the traditional environmental impacts that environmental
impact laws were designed to deal with. Moreover, laws that require environmen-
tal impact assessments may explicitly focus on adverse local impacts, which often
remain impossible to predict in the case of climate change. Even where the legisla-
tive language clearly requires agencies to assess cumulative impacts and to consider
environmental impacts at all scales, courts may view the task of identifying and
quantifying such impacts as very burdensome and be reluctant to require agencies
to undertake it.


3.3. Indirect Impacts
A third set of barriers to favorable judicial resolution arises in the subset of potential
cases where greenhouse gas emissions are an indirect or “downstream” impact of
the project under assessment. In these cases, courts are likely to hesitate in ordering
an assessment of the impacts of such indirect emissions because of the dif¬culty or
impossibility of identifying such emissions with certainty.
Where the emissions that were allegedly required to be assessed and considered
are indirect emissions, as in the coal mining cases discussed earlier, a de¬nitive
quanti¬cation of the amount of greenhouse gases that will be emitted may prove

See supra notes 76“78 and accompanying text.
133
Litigating Climate Change at the Coal Mine 69


elusive. In both the Isaac Plains and Sonoma Mines case and the Anvil Hill case, the
mined coal was destined primarily for export. Given that fact, there is uncertainty
with respect to where, when, and how the coal will be used, and thus as to the
ultimate emissions.134 In the example of the downstream impacts of a new highway,
it is similarly dif¬cult to predict how much it will be used and the resulting emissions
that will be generated. Moreover, when dealing with indirect impacts, there is the
distinct possibility that if the project under consideration does not go forward, the
indirect emissions would occur anyway. In other words, if Australia does not mine its
coal for export to Japan, Japan will acquire and burn coal from elsewhere. Similarly,
if the proposed new highway is not constructed, drivers will emit the greenhouse
gases using other highways and roads.
Perhaps most problematically, the chain of causation with respect to indirect emis-
sions is potentially in¬nite. Australian advocates pointed to the Nathan Dam case
to advocate that all indirect effects be considered, but the assessment of all possible
indirect effects is likely to be infeasible. Judges thus confront the dif¬cult questions
of how predictable or certain indirect emissions must be. In the Hazelwood case,
the indirect emissions were quite certain because all the mined coal was destined
to be burned in the nearby Hazelwood power plant. The judge found a “suf¬cient
nexus” between the mining and the indirect effect.135 In the cases where the coal was
being mined primarily for export, the judges espoused disparate views. The judge
in the Isaac Plains and Sonoma case stated that he had “proceeded on the basis
that greenhouse gas emissions consequent upon the burning of coal mined in one
of these projects might arguably cause an impact upon a protected matter, which
impact could be said to be an impact of the proposed action,” but then expressed
serious doubt with respect to this proposition.136 As discussed earlier, he remained
unsatis¬ed that the production of greenhouse gases from the burning of coal in
“some unidenti¬ed place in the world” should be considered an impact of the pro-
posed project at all.137 The judge in the Anvil Hill case, by contrast, easily found
“a suf¬ciently proximate link.”138 The dif¬culty of establishing a bright-line rule
with respect to when indirect emissions are suf¬ciently related to the project under
consideration to govern such cases could lead to extensive litigation on the issue.
In the United States, NEPA regulations require the analysis of both direct and
indirect impacts. Direct impacts are caused by the action and occur at the same time
and place, whereas indirect impacts are “caused by the action and are later in time or

It can be argued that although it is not clear where, when, and how the coal would be burned, it
134

can very reasonably be assumed that it will be burned somewhere and that the ultimate emissions
can be predicted with reasonable certainty. The greenhouse gas intensities of various coal burning
production facilities fall within a known range, and an assessment could assume the lowest pollution
intensity as a conservative estimate.
See supra notes 33“34 and associated text.
135

Isaac Plains Decision, supra note 53, at paragraph 72.
136

Id. See also supra note 68 and associated text. On this point, the judge appears to be criticizing the
137

Department™s acceptance that such greenhouse gases should be considered an impact of the project.
See supra note 91 and associated text.
138
Lesley K. McAllister
70


farther removed in distance, but are still reasonably foreseeable.”139 According to the
regulations, examples of indirect impacts or effects include “growth inducing effects
and other effects related to induced changes in the pattern of land use, population
density, or growth rate, and related effects on air and water and other natural systems,
including ecosystems.”140 The regulations thus appear suf¬ciently broad to include
the emissions that would result from burning mined coal as well as many other
indirect emissions. Evidence suggests, however, that there are many environmental
assessments and environmental impact statements prepared under NEPA that do
not adequately address such indirect impacts.141
For coal mining projects, highway projects, and many other types of projects
that are subject to environmental impact laws, indirect greenhouse gas emissions
may be much more signi¬cant than direct greenhouse gas emissions. Governmental
agencies, and ultimately courts, are thus faced with the question of how far “down-
stream” to look when analyzing emissions and their impacts. Australian courts have
pioneered the way by focusing on the suf¬ciency of the “link” or “nexus” between
the project and the downstream emissions and thereby determining in some cases
that such indirect impacts must indeed be assessed.


4. CONCLUSION

Legal approaches to addressing climate change have experienced a signi¬cant degree
of success in Australia. In well-publicized cases, Australian courts have required that
governmental agencies examine not just the greenhouse gases directly produced by
proposed coal mines but also those that will be produced when the coal is burned.
As a result, governmental agencies are increasingly required to analyze and consider
a project™s climate change impacts, both direct and indirect.
Yet the requirement to examine climate change impacts of a particular project,
especially where those impacts are indirect, may be dif¬cult to attain under envi-
ronmental impact laws in other cases and in other countries. In the United States,
some courts might dismiss such a claim on the procedural basis that environmental
plaintiffs lack standing. Even where standing is not a barrier, courts are challenged
by the problems that the climate change impacts of particular projects are only
signi¬cant when viewed cumulatively and their local manifestations are dif¬cult or
impossible to ascertain. In claims regarding indirect emissions of particular projects,
legal claims are likely to be even more dif¬cult to substantiate and prevail upon,
as the emissions that the plaintiff seeks to have assessed are dislocated in time and
space from the project under consideration.
In Australia, the obstacles to new coal mining projects that arise from environ-
mentalists™ success in the courts may slow the development of Australia™s immense


40 C.F.R. § 1508.8 (1989).
139

Id.
140

See references contained in supra note 132.
141
Litigating Climate Change at the Coal Mine 71


coal resources. Environmentally and legally, these cases represent a success for
climate change activists. Yet many questions remain as to whether project-based
environmental assessment is a form of regulation that makes sense in confronting
the problem of climate change. Environmental assessment laws tend to work best
when a project can be clearly viewed as directly causing one or more environmental
impacts that are well de¬ned and understood. Other policy instruments are likely
to be much better suited to addressing the problem of climate change in a more
coordinated and coherent manner.
In the absence of such alternative policies, however, litigation is a critical mecha-
nism by which citizens can force their governments to take climate change seriously.
Soon after the decision in the Anvil Hill case was handed down, Ian Campbell,
Australia™s Environment Minister, referred to the decision as “fatally ¬‚awed.”142 In
his view, “What we need to do as a world is keep mining coal. In fact, mine more
coal for energy security but invest in the technologies to make sure that when we
burn that coal, we have the technology to capture the carbon and stop it going into
the atmosphere.”143 Perhaps the greatest signi¬cance of Campbell™s statement is that
he invoked the need for an alternative policy approach. By its nature, project-based
assessment of climate change impacts may not be able to address the problems of
climate change holistically, but legal decisions such as that in the Anvil Hill case
may well play an important role in leading reluctant governments and industries
toward developing policies that can.

Australian Judge Blocks Coal Mine on Climate Grounds, Envtl. News Service (November 29, 2006),
142

available at http://www.ens-newswire.com/ens/nov2006/2006“11-29“03.asp (last visited February 27,
2009).
Law Changes Won™t Solve Climate Change: Campbell, ABC News Online (Nov. 28, 2006), available
143

at http://www.abc.net.au/news/australia/nsw/newcastle/200611/s1799315.htm (last visited February 27,
2009).
4

Cities, Land Use, and the Global Commons: Genesis
and the Urban Politics of Climate Change

Katherine Trisolini— and Jonathan Zasloff——



INTRODUCTION

Ruin is the destination toward which all men rush, each pursuing his own best
interest in a society that believes in the freedom of the commons. Freedom in a
commons brings ruin to all.1

By quoting this pessimistic philosophy, the New Zealand Environment Court, in
Genesis Power Ltd. v. Franklin District Council (“Genesis”),2 demonstrated its lack
of faith in local governments as protectors of the Earth from climate change. Little
wonder, then, that it mandated that a local district government set aside its con-
cern for local environmental impacts and indigenous peoples™ cultural resources,
and permit the construction of a wind farm that could reduce carbon emissions. In
describing the legal basis for its decision, the Environment Court echoed prevailing
assumptions that climate change can only be dealt with from the top down. That
is, nation-states implement international treaties by imposing concern on local gov-
ernments that would otherwise, “in pursuit of their well-being, destroy existing stock
of natural and physical resources so as to improperly deprive future generations of
their ability to meet their needs.”3
This chapter explores such a view of localities and its alternatives. We observe the
seemingly contrary behavior of cities in the United States, which appear to have taken
up the charge for climate protection despite the complete absence of the national
in¬‚uence identi¬ed as necessary by the New Zealand court and others. We then

— Associate Professor, Loyola Law School, Los Angeles; J.D., Stanford Law School, M.A., Political
Science, University of California at Berkeley. Professor Trisolini teaches environmental law, property,
and climate change courses and has litigated local state, and federal environmental and land use
cases. The author thanks UCLA School of Law for providing a teaching and research fellowship
during which this chapter was completed.
—— Professor of Law, UCLA School of Law, and Associate Director, Richard S. Ziman Center for Real
Estate at UCLA; J.D. Yale Law School, Ph.D. Harvard University, zasloff@law.ucla.edu.
Garrett Hardin, The Tragedy of the Commons, 162 Science 1243, 1244 (1968).
1

[2005] N.Z.R.M.A. 541 (Env. C.) (We cite the case as “Genesis” following the Environment Court™s
2

own format.).
Id. 225 (citing Canterbury Reg. Council v. Selwyn Dist. Council, [1997] N.Z.R.M.A. 25 (Env. C.)).
3


72
Cities, Land Use, and the Global Commons 73


initiate an inquiry into the possible basis of these apparently against interest actions,
drawing upon loose analogies to international relations theory.
Unlike the focus of most other climate change lawsuits, which have predominantly
challenged actions of either large polluters or national agencies, the Environment
Court in Genesis reviewed a local land use decision regarding the siting of a small
wind farm. The Franklin District Council, responsible for the only required dis-
cretionary approval, refused consent to the wind farm™s application because of the
adverse impacts to the coastal landscape, the cultural resources of indigenous people,
and local equestrian facilities.4 Under New Zealand™s Resource Management Act,5
Genesis Power appealed to the Environment Court, a body invested with authority
to conduct a de novo review of the Council™s decision.6 The Environment Court
reversed the decision, ¬nding that the proposal™s bene¬ts, “when seen in the national
context, outweigh the site-speci¬c effects, and the effects on the local surrounding
area.”7
The case turns our attention to the impact of local land use decisions on climate
change and the constraints under which local decision-makers act. Taken cumu-
latively, local governments™ land use decisions “ their determinations of which
categories of activities go where “ have a substantial impact on greenhouse gas
production. Local governments may control the availability of sites for alternative
energy production, and their proximity to consumers, which in¬‚uences transmission

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