living wonders extends with minister's legal definition

In a significant environmental law proceeding, the Full Court of the Federal Court of Australia dismissed appeals brought by the Environment Council of Central Queensland (ECoCeQ) challenging decisions of the Commonwealth Environment Minister to approve two coal-related projects: approvals relating to Whitehaven Coal’s Narrabri development and MACH Energy’s Mount Pleasant Optimisation Project.

Background

The appeals, publicly referred to as the Living Wonders cases, sought to challenge whether the Minister was required, under the Environment Protection and Biodiversity Conservation Act 1999 (Cth) (EPBC Act), to assess greenhouse-gas emissions arising from the combustion of coal produced by the approved projects, and the resulting climate-change impacts.

ECoCeQ, a volunteer-based environmental organisation from Central Queensland, was represented by Environmental Justice Australia (EJA). The group contended that the Minister’s assessment of the projects as “controlled actions” failed to consider downstream emissions and associated climate impacts which, they argued, posed risks to matters of national environmental significance, including threatened species, ecological communities, and heritage values protected under the EPBC Act.

The litigation raised questions about the extent to which indirect or downstream environmental consequences may constitute a relevant “impact” for the purposes of environmental assessment under the EPBC Act.

Legal Considerations

The central issue concerned the statutory construction of the term “impact” under the EPBC Act, and whether the Act required the Minister to take into account greenhouse-gas emissions resulting from the end use of coal extracted from the approved projects.

ECoCeQ argued that the Minister’s failure to consider combustion-related emissions amounted to legal error in the exercise of statutory power, including error in the application of the Act’s protective purpose and decision-making framework.

The Minister, supported by the project proponents, submitted that the EPBC Act does not mandate the consideration of downstream emissions from the use of exported coal when assessing impacts on matters of national environmental significance. That position emphasised the structure of the Act, the nature of the statutory approval regime, and the distinction between environmental impacts regulated through project-based approval processes and broader climate-policy mechanisms operating at a national and international level.

Additional issues addressed in the proceedings included:

• Whether the contribution of emissions associated with the projects could be regarded as material in the context of global greenhouse-gas emissions.

• Whether climate impacts could be assessed where the causal connection to protected matters was indirect and diffuse

• The extent of the Minister’s discretion in addressing emissions through reference to existing policy frameworks.

• The limits of judicial review where the statutory text does not expressly require consideration of particular categories of impact.

  
  

Court Proceedings

The proceedings were commenced in the Federal Court in 2023. In September 2023, a single judge dismissed ECoCeQ’s applications, finding no jurisdictional error in the Minister’s approval decisions.

ECoCeQ appealed to the Full Federal Court. The appeals were heard in February 2024.

On 16 May 2024, the Full Court (Chief Justice Mortimer, and Justices Colvin and Horan) delivered judgment dismissing both appeals. The Court held that, on the proper construction of the EPBC Act and in the circumstances of the approvals under challenge, the Minister was not required to treat greenhouse-gas emissions arising from the combustion of coal as a mandatory consideration when assessing impacts on matters of national environmental significance.

In its reasoning, the Full Court concluded that:

• The EPBC Act does not, as presently framed, require downstream emissions from the use of coal to be assessed as impacts of the approved actions in every case.

• The Minister’s construction of the statutory assessment framework was open on the text and structure of the Act.

• No legal error was demonstrated in the Minister’s decision-making process on the grounds advanced.

  
  

On 17 July 2024, the Full Court made no order as to costs, having regard to the public-interest character of the proceedings.

ECoCeQ sought special leave to appeal to the High Court of Australia. On 12 August 2024, the High Court refused special leave.

Outcome

The Full Court’s decision affirmed that, under the EPBC Act as currently enacted and applied in these approvals, the Environment Minister was not legally obliged to assess downstream greenhouse-gas emissions associated with coal combustion when approving the projects.

The judgments clarify the limits of the EPBC Act’s project-based assessment framework and confirm that, absent statutory amendment, the Act does not compel the inclusion of indirect emissions as a mandatory consideration in all approval decisions.

Professional Significance

The Living Wonders proceedings illustrate the central role of statutory construction in environmental litigation and the constraints on judicial review where legislative text does not expressly address particular categories of environmental harm.

For legal practitioners advising on EPBC Act approvals, the decisions reinforce that:

• The assessment of “impact” remains grounded in the statutory framework and its application to the specific approval under consideration.

• Downstream or indirect emissions from the end use of exported fossil fuels are not presently required to be treated as mandatory considerations in every EPBC approval.

• Challenges seeking to expand the scope of environmental assessment to encompass climate-related harm face significant legal limits under existing legislation.

• Meaningful expansion of climate-impact assessment obligations would require legislative reform rather than judicial reinterpretation.

  
  

The cases also highlight the distinction between environmental risk identified by scientific evidence and the scope of legally enforceable obligations under Australia’s federal environmental approval regime.

Conclusion

Living Wonders provides a detailed articulation of the boundaries of environmental impact assessment under the EPBC Act as it presently operates. The Full Court’s reasoning confirms that, in the absence of legislative change, indirect emissions from fossil-fuel projects do not automatically trigger statutory assessment obligations.

The decisions delineate the legal boundary between project-specific impacts and broader global environmental consequences, and demonstrate the limits of judicial intervention in extending statutory schemes beyond their enacted scope.

Authored by Campbell Dore

Publisher

The Brief

campbell@thebrieflaw.com.au