The Labor leader, Bill Shorten, on Tuesday sent a public signal. Reflecting internal conversations Labor has been having since the outcome of the Queensland state election, for the first time Shorten hinted an incoming Labor government might attempt to stop the controversial Adani coalmine.
The public hint from Shorten has sent the environment movement into campaign mode. Labor frontbenchers on Wednesday were fielding calls from the public after the Australian Conservation Foundation issued a call to action on Facebook, urging its supporters to ring and email political offices over the next 24 hours.
The environment movement hopes to persuade Labor to adopt a legal strategy to kill the project. That is currently under active consideration, with a number of key ALP players favouring a tough line on Adani.
So, as Labor mulls its options, we examined what some of the mechanisms might be.
Where things stand now
Adani’s Carmichael coalmine, and all the associated infrastructure, has gained its approvals under state and federal environmental laws. Several appeals were filed, some being rejected by courts and others upheld. But, even when upheld, there’s nothing stopping environment ministers from simply regranting the approval – which is what happened with Adani.
While there is now little that opponents to the mine can do from outside government, there is still room, potentially, in federal environmental law for a government to pull the plug on the project, and there are also options to amend the current framework.
A new climate trigger
Labor is examining several options. One is to insert a “climate trigger” into the Environment Protection and Biodiversity Conservation Act. A climate trigger would help deal with the problem that Australia’s environmental protection framework is limited in scope.
A climate trigger would, potentially, allow a future Labor government to require a new assessment process for the Adani mine, with tougher parameters, and allow an environment minister to withdraw approval for the project specifically on climate change grounds.
This strategy would be tougher to enact if the mine was operational by the time Labor won government but current indications suggest the financing of the project is fraught.
Labor’s position is no taxpayer support for the project and Queensland has already decided to veto any loan to the Indian mining company from the Northern Australia Infrastructure Facility.
Options under the existing legal framework
The simplest way for a future government to kill Adani’s ambitions to build its mine under the existing framework is to call on one of two little-used sections of the EPBC Act.
Sections 144 and 145 of the EPBC act allow for an environment minister to, respectively, suspend or reject an approval that has already been made.
Section 145, which allows for the approval to be revoked entirely, simply requires that the minister believes that the mine would have an impact a matter of national environmental significance, which was not identified at the time the approval was granted.
If the minister finds the information available now would have meant the original approval would not have been made, they may then simply revoke the approval.
In fact, this particular section of the EPBC was cited by lawyers at Environment Justice Australia who, acting on behalf of the renowned coral scientist Charlie Veron, wrote to the minister for energy and the environment, Josh Frydenberg, in July 2017, asking him to revoke approval.
The lawyers said the two back-to-back bleaching events on the Great Barrier Reef in 2016 and 2017 could not have been known back in 2015 when the approval was granted, and constitute new information that shows the mine will have an impact on a matter of national environmental significance.
“When your predecessor approved the proposed action of Adani Mining Pty Ltd to develop and operate the Carmichael Coal Mine and Rail Infrastructure Project on 14 October 2015, information about the extent and severity of the 2016 and 2017 coral bleaching events and the probability of the increase in frequency and severity of coral bleaching events due to climate change noted above was not before the him,” they wrote.
“In effect we have moved from scientific prediction, which is open to challenge, to current reality, which is there for all to see.”
The lawyers also pointed to new scientific data showing that the bleaching events would have been virtually impossible without human greenhouse gas emissions. That study also found continued greenhouse gas emissions would mean conditions like those in 2016 would be normal in less than two decades.
“Maintaining the approval for the Adani mine under the EPBC act is inconsistent with the need to protect the Great Barrier Reef from climate change,” the lawyers concluded. “You have it within your power to revoke the approval and we ask that you do so.”
There are other “matters of national significance” that might also be used to trigger this section too.
The minister might become aware of new information about how the mine might impact the threatened black-throated finch, for example, which is expected to lose its best habitat as a result of the mine being built. There are also rare ecological communities that rely on springs, some of which will disappear when groundwater is used under the mine’s unlimited water licence.
The super trawler
Some experts point to another precedent set in 2012 when the then Labor government amended the EPBC act to ban a super trawler that intended to fish in one of Australia’s fishery zones.
The government amended the legislation to allow the environment minister, then Tony Burke, to prohibit a declared commercial fishing activity until an expert panel could assess what the owners of the super trawler intended to do.
The owners of the super trawler, Seafish, challenged the government’s move but the legal challenge was dismissed by the federal court.
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