The High Court of Australia has dismissed an appeal by MACH Energy over the approval of its Mount Pleasant coal mine extension near Muswellbrook, finding by a majority that the Independent Planning Commission failed to consider conditions to minimise greenhouse gas emissions from the project.
In the decision handed down on Wednesday, Justices Gordon, Edelman and Beech-Jones held the Commission did not consider whether to impose conditions to minimise emissions to the greatest extent practicable, as required by a NSW planning policy for mining projects. Almost all of the project’s emissions are so-called Scope 3 emissions from coal burned overseas, about 860 million tonnes, according to the judgment. The Commission imposed conditions on the project’s own emissions, which make up about 2 per cent, but none on Scope 3 emissions. Chief Justice Gageler and Justice Jagot dissented on that point, finding the Commission had considered the issue.
All five judges agreed on a separate question, when they found the Commission complied with the planning law’s requirement to consider the likely environmental impacts of the project, and rejected the NSW Court of Appeal’s reasoning that the local impacts of climate change were the central focus of that duty. The court did not decide whether climate change can be an environmental impact in the locality of a development, meaning the climate argument raised hasn’t been ruled on.
The one ground that succeeded was the Scope 3 point. The majority found the Commission never considered whether to impose conditions to minimise emissions from coal burned overseas. That failure is the only reason the approval was held invalid. It was a procedural failure, not a finding that the emissions are too high or that the mine shouldn’t go ahead. The court said it did not look at the merits.
The matter now returns to the Land and Environment Court.
The mine’s current consent allows extraction until 22 December 2026.
