## Facts

- A proponent sought approval for a major open-cut thermal coal mine at Anvil Hill in the Hunter Valley, producing about 10.5 million tonnes per year for 21 years.
- The project was declared a “major project” under Part 3A of the *Environmental Planning and Assessment Act 1979* (NSW).
- The Director-General issued Environmental Assessment Requirements (EAR) that included “air quality including a detailed greenhouse gas assessment.”
- The proponent’s exhibited environmental assessment (EA) addressed operational (direct) mine emissions but did not quantify or substantively assess emissions from the later combustion of the coal by power stations and other third parties.
- After exhibition, the Director-General treated the EA as satisfying the EAR; the proponent later produced separate material estimating combustion emissions, but it was not incorporated into the exhibited EA.
- The applicant sought judicial review challenging the Director-General’s acceptance of the EA as compliant with the EAR.

## Issues

1. Whether the EAR’s requirement for a “detailed greenhouse gas assessment” required assessment of greenhouse emissions from third-party combustion of the mined coal (downstream emissions).
2. Whether downstream combustion emissions were a sufficiently connected environmental impact of the mine to require assessment under the statutory scheme.
3. Whether principles of ecologically sustainable development (including the precautionary principle and intergenerational equity) were required considerations in evaluating the adequacy of the EA and were properly applied.

## Decision

- The court held the EA, as accepted, did not comply with the EAR because it omitted a proper assessment of emissions from burning the coal.
- The court rejected the argument that third-party combustion emissions were too remote or uncertain; coal combustion was a foreseeable consequence of approving a thermal coal mine.
- The court found the Director-General’s acceptance of the EA as meeting the EAR involved legal error and granted declaratory and related relief setting aside that acceptance.
- The court required that climate change impacts, including downstream emissions, be considered and quantified as far as practicable before the project could properly proceed in the approvals process.

## Legal Principles

- Where assessment requirements mandate a “detailed greenhouse gas assessment,” decision-makers may not treat partial analysis that excludes foreseeable downstream emissions as compliant.
- For fossil-fuel projects intended to produce fuel for combustion, downstream greenhouse emissions may constitute environmental impacts that must be assessed at the project-approval stage.
- The precautionary principle applies where there is a threat of serious or irreversible environmental harm and scientific uncertainty; climate change can satisfy those conditions, requiring informed assessment of cumulative and long-term impacts.
- Ecologically sustainable development, including intergenerational equity, informs the interpretation and administration of environmental assessment obligations and supports requiring quantitative treatment of climate impacts where practicable.
- Later-submitted material may not cure an inadequacy in the exhibited assessment where the statutory process requires the assessment to be presented and assessed as a coherent document meeting the prescribed requirements.

## Conclusion

The court set aside the Director-General’s acceptance of the mine’s environmental assessment because it failed to include a detailed, practicable quantification and assessment of greenhouse emissions from the foreseeable downstream combustion of the coal, as required by the applicable assessment requirements and informed by ecologically sustainable development principles.


Gray v. Minister for Planning (NSW), 152 L.G.E.R.A. 258 (Land & Env’t Ct. N.S.W. 2006)