Anvil Hill Project Watch Association Inc v Minister for the Environment and Water Resources

BACKGROUND 1 This is an appeal from a judgment of a Judge of the Court dismissing an application by the Anvil Hill Project Watch Association Inc ("appellant") which challenged a determination by a delegate of the first respondent that an action comprising the construction and operation of an open cut coal mine and colliery facility ("the Anvil Hill project") by the second respondent ("Andros") was not a "controlled action" within the meaning of s 67 of the Environmental Protection and Biodiversity Conservation Act 1990 (Cth) ("the Act"). 2 The background to this matter can be briefly stated. Andros proposes to perform the Anvil Hill project in the Hunter Valley district of New South Wales. On 11 January 2007, Andros referred the Anvil Hill project to the Minister to decide whether it was a controlled action. On 19 January 2007, a delegate of the first respondent decided that the Anvil Hill project was not a controlled action, with the consequence that it could proceed without further approval being required under the Act. On 17 May 2007, the appellant filed an application under s 5 of the Administrative Decisions (Judicial Review) Act 1977 (Cth) for review of the delegate's decision. Her Honour the primary judge dismissed the application: see Anvil Hill Project Watch Association Inc v Minister for the Environment and Water Resources (2007) 97 ALD 398.

REASONS FOR DECISION OF THE DELEGATE 3 On 18 April 2007, reasons were provided by the delegate of the first respondent for the decision that the Anvil Hill project was not a controlled action. They are summarised in her Honour's judgment at [21]-[27], which we substantially reiterate below. 4 In the statement of reasons, the delegate outlined the background to the referral of the Anvil Hill project, and gave a description of it. The delegate noted that the referral had been sent to the Minister for Industry, Tourism and Resources, the Minister for Defence and to the New South Wales Minister for Planning, but that no comments had been received from them. The delegate also said that 13 comments had been received from the public, including the appellant. The majority of these submissions contended that the Anvil Hill project should be a controlled action because it was likely to have "significant impacts" on matters of national environmental significance. 5 The delegate stated that she considered the information and advice provided by the appellant, and that she relied on a brief from the Department of Environment and Water Resources. The evidence and other material in that brief on which the delegate's findings were based included the referral itself, environment assessment documents, the public submissions, various correspondence, and policy statements and advice from the Department of the Environment and Heritage. 6 The delegate made extensive findings of fact about listed ecological communities, plant species, fauna species and migratory species protected under Part 3 of the Act and concluded that there was "no likelihood" that the proposed action would have a significant impact on any of them, other than, potentially, listed threatened species and communities (ss 18 and 18A of the Act) and listed migratory species (ss 20 and 20A of the Act). The delegate continued: 'In particular, I found that two listed ecological communities, two listed flora species and several listed fauna species are known to occur, or may occur, in the area of the proposed action.' 7 The delegate examined these communities and species separately and found that a significant impact on any of them by the proposed action was "not likely". 8 The delegate then considered whether the proposed action was likely to have "indirect impacts" on matters protected under Part 3 of the Act "as a result of any possible contribution to greenhouse gas emissions". The delegate accepted that greenhouse gases in the Earth's atmosphere are causing changes to that atmosphere and to weather patterns, and that these changes might affect matters protected by Part 3 of the Act. The delegate found that if all the coal produced by the proposed mine were to be consumed by end users, the combustion of that coal would produce per annum the equivalent of 0.04% of the current annual global greenhouse gas emissions. The delegate found that "such emissions are a small proportion of the total possible emissions from all other sources". 9 The delegate accepted that the contribution to Australia's greenhouse gas emissions from the mining and use of coal is important, but that it was only one of many contributions. The delegate observed that Australia's emissions, "though relatively large on a per capita basis", should be considered with the emissions of other industrialised countries, and that: '… the amount and concentration of greenhouse gases in the atmosphere, and any resultant adverse impacts on matters protected by Part 3 of the EPBC Act, are the consequence of human activities on a global scale over a long period of time. 10 In the conclusion of the reasons, the delegate stated: 'I found that, while it is clear that, at a global level, there is a relationship between the amount of carbon dioxide in the atmosphere and warming of the atmosphere, the climate system is complex and the processes linking specific additional greenhouse gas emissions to potential impacts on matters protected by Part 3 of the EPBC Act are uncertain and conjectural. In light of this, and in light of the relatively small contribution of the proposed action to the amount and concentration of greenhouse gases in the atmosphere, I found that a possible link between the additional greenhouse gases arising from the proposed action and a measurable or identifiable increase in global atmospheric temperature or other greenhouse impacts is not likely to be identifiable.' 11 Finally, the delegate also concluded that the emissions of greenhouse gases that would result from the mining, shipping and transport of the coal were "likely to be negligible in the context of existing emissions".