Queensland teenagers launch legal challenge of Adani mine
This week, Brooklyn O’Hearn, 17, will sit her year 12 exams in her home town of Townsville, just days after launching a legal request with her friend Claire Galvin, 19, to Environment Minister Sussan Ley to revoke federal approval for Adani’s controversial Carmichael coalmine.
Flanked by climate lawyer Ariane Wilkinson, the pair is armed with a dossier of expert evidence detailing some of the most compelling arguments to date that emissions stemming from the project are not negligible and can be linked to disastrous impacts on the Great Barrier Reef.
Drawing on the research of climate scientist Bill Hare, energy economist Paul Burke and financial analyst Tim Buckley, the dossier outlines, for the first time, how nearly 18,000 square kilometres of the Great Barrier Reef could be severely damaged or lost if the Carmichael coalmine goes ahead, opening up the Galilee Basin.
O’Hearn, who grew up around Townsville’s mining culture, laughs huskily as she tells me her stepfather is a coalminer. “It’s interesting but we both respect and support each other. I understand the difference – it’s not his fault. He needs a job.”
Jobs, she knows, are scarce. “So many young Queenslanders are out of work, especially in Townsville … and you want to be sensitive to that and understand what they are going through.” But growing up under the spectre of a changing climate is something O’Hearn hasn’t been able to shrug off.
Claire Galvin similarly felt helpless in the face of climate change. “I didn’t know what to do. I was just one person.” She grew up in Cairns, a four-hour drive north of Townsville, and had been visiting the Great Barrier Reef with her family for as long as she can remember. “Wherever the boat took us … I was in awe of the world beneath me, it was like something from a fairytale.”
After the mass coral bleachings that occurred across the reef in early 2016, and again in 2017, Galvin began organising the school strikes for climate in Cairns. And through these rallies she met O’Hearn.
In March, as Australia went into Covid-19 lockdown, the reef experienced the most widespread coral bleaching event recorded; for the first time, severe bleaching struck all three of its regions. The news devastated Galvin.
For a year, she had been in conversation with Ariane Wilkinson, of Environmental Justice Australia (EJA), a non-profit legal firm. The pair started talking after Galvin sent EJA an email asking whether she could do anything about the damage climate change was having on the reef, whether there was a legal avenue she could pursue. Wilkinson said there was, but Galvin was undecided.
After the 2020 bleaching, she told Wilkinson she was ready – she wanted to go ahead with the legal request. When she asked O’Hearn to join her, the 17-year-old didn’t blink.
It’s commonly thought that in matters of the law, the clients come before a case, but sometimes it can go the other way. Long before meeting Galvin, Wilkinson had been ruminating on the Carmichael mine’s federal approval in 2015 and what she refers to as the “insidious” market substitution argument.
An argument regularly deployed by proponents of new coal projects, it tends to go like this: refuse a new coalmine and supply will simply be sourced from elsewhere, drawing the neat conclusion that a new mine will not contribute additional emissions because its emissions are offset by the coal it outcompeted.
“Some people like to call the market substitution argument the drug dealer’s defence,” says Wilkinson, “because the law would never accept it … if a drug dealer rocked up to court and said, ‘Me selling ice is not causing community harm because it is purely demand driven … and whether I exist or not, that harm would still occur.’ Nobody – whether it’s the pub test, a politician or a judge – nobody is going to accept that argument in criminal law.”
Yet the substitution argument remains one of the biggest barriers to blocking new carbon-emitting projects in Australia, Wilkinson says, “enabling the federal government to duck and weave [and avoid taking] responsibility for Australia’s contribution to global warming”.
Last year, though, in what climate lawyers have called a landmark ruling, New South Wales Land and Environment Court chief judge Brian Preston cited climate change as one of the key reasons for rejecting the Rocky Hill open-cut coalmine near the Hunter Valley.
Justice Preston called the market substitution argument “flawed”, saying that “the environmental impact does not become acceptable because a hypothetical and uncertain alternative development might also cause the same unacceptable environmental impact”.
The 2015 federal approval of the Carmichael mine and rail project, says Wilkinson, used a “variation of the market substitution argument” as part of its reasoning that it would be too uncertain for the government to contemplate the additional emissions the new coal project would contribute globally.
Justifying his approval, Greg Hunt, then Environment minister, wrote that it was “not possible to draw robust conclusions on the likely contribution of the project to a specific increase in global temperature” and it was “difficult to identify the necessary relationship” between the Carmichael mine and “relevant matters of national environmental significance”.
A “range of variables”, the minister reasoned, including “whether the new coal would replace coal currently provided, whether the new coal is used as a substitute for other energy resources, and the efficiency of the coal burning power plants” led Hunt to conclude there was insufficient evidence to point to a causal link between the Carmichael coalmine and a specific increase in global temperatures. This allowed the federal government to give the mine, and by way of inevitability the vast Galilee Basin coal seam, the green light.
Hunt’s first “variable”, that new coal could keep other coal in the ground, is, according to Wilkinson, just as insidious as the “if we don’t dig it up, someone else will” market substitution argument. “It is this smokescreen that climate change is death by a thousand cuts – that it’s no one’s fault, it’s everyone’s fault, it’s too hard, this might replace this, this might replace that, let’s not apportion blame,” she says. “Well, we say it’s not too uncertain. We can apportion blame.”
To build the teenagers’ case, Wilkinson asked Bill Hare, Paul Burke and Tim Buckley a range of questions to test the plausibility of the market substitution argument. Specifically, she wanted to know if it was possible to attribute the effect of the anticipated emissions stemming from the Carmichael project on the Great Barrier Reef, which the Environment minister is required to protect.
The result of Hare, Burke and Buckley’s work is a staggering, cogent and at times overwhelming compilation of expert evidence. The three reports, says Wilkinson, provide Ley with strong legal grounds to revoke approval for the Carmichael mine and rail project under section 145 of the Environment Protection and Biodiversity Conservation Act (EPBC Act), which allows the minister to act on new evidence.
Most significant is the finding by Paul Burke, an associate professor and energy economist at the Australian National University, that the market substitution assumption in the case of the Carmichael project is “implausible”. Rather, he writes, “it is much more likely that the extraction of coal from the mine would lead to a net increase in emissions”.
Burke lists key factors such as price effect, when more coal on the market cheapens the resource and leads to an overall increase in consumption; the likely displacement of energy sources with lower emissions; the emissions in development and transportation; the consequences of opening up the Galilee Basin; and the diversion of resources from low-emissions projects.
Perhaps most telling is what Burke refers to as the “signalling effect”. Carmichael, he writes, “would mean that both Australia and the project participants are acting in a way that is inconsistent with the Paris Agreement”. Not only does this undermine the global response to contain climate change, he continues, it encourages others to do the same.
Financial analyst Tim Buckley, of the Institute for Energy Economics and Financial Analysis, states that two neighbouring coal projects, China Stone and Hyde Park, must be factored into Carmichael emissions estimates, because both will benefit immensely from the approval precedents set by the project. He quotes former Liberal politician Ian Macfarlane, chief executive of the Queensland Resources Council, who referred to the Carmichael project in June last year as the “icebreaker that will lay down those baselines and will provide the infrastructure” for mining in the Galilee Basin.
But it’s here that Bill Hare, an adjunct professor and climate scientist at Murdoch University, does something interesting. In his evidence, Hare estimates total carbon dioxide emissions from the three mines would amount to nearly 6 per cent of the remaining allowable emissions if we want to keep global warming below 1.5 degrees.
At these levels, Hare estimates emissions from the Carmichael, China Stone and Hyde Park mines would see somewhere between 13,908 and 17,908 square kilometres of the Great Barrier Reef severely damaged or lost.
Even if emissions are half Hare’s estimate, he says up to 8990 square kilometres of the reef could be severely damaged or lost as a result of the Carmichael project.
“There is no modelling available which can attribute additional carbon to a loss of so many square kilometres of the reef,” he explains, “so this … is a way of getting an idea of what this means for the Great Barrier Reef area.”
“Certainly, those specific carbon molecules won’t kill those specific bits of reef,” says Wilkinson. “But that’s the apportion of blame, and is that significant? And what is the power of the federal government, whose requirement is to protect the reef? Saying, ‘We can’t help it, it’s global’ – well, we could avoid further emissions to at least protect 7000 [square] kilometres. Is that significant?”
On Thursday, Adani responded to O’Hearn and Galvin’s legal request, dismissing the expert evidence and reiterating the market substitution argument. “The quality of coal from the Carmichael mine is better than the coal it will replace in the market,” the mining giant said, adding that in the absence of Carmichael, supply would be sourced from “higher” emissions coal from Indonesia.
Burke’s report counters this oft-repeated claim in regard to coal from Indonesia – where Adani runs a coalmine on Bunyu Island and intends to export it to the Godda power station where the Carmichael coal is also destined – writing that the Carmichael mine could displace already existing Australian thermal coal exports with lower emissions, as well as renewables.
A second point in Adani’s response is the company’s current plan to shift 10 million tonnes a year, not the federally approved 60 million. However, a video leaked to the ABC earlier this year showed Adani Australia’s former chief executive Lucas Dow speaking at a Liberal National Party fundraiser on the Gold Coast, emphasising that the 10 million tonnes a year was an “initial phase.”
“The one thing we’ve been very clear on is we’re permitted up to 60 million tonnes,” he said, assuring his audience of the mine’s ability to expand.
O’Hearn and Galvin’s case is certainly far from the only legal challenge to the Carmichael project. Earlier this year, Adani Australia dismissed 12 other legal proceedings against the mine as “lawfare tactics”, implying both an abuse of process and that environmental defenders are misusing the courts to wage war against the mining giant.
Neither allegation is supported by evidence. In May, an ANU-led peer-reviewed study of public interest litigation in the Federal Court on environmental matters over the past decade found “strong evidence that public interest litigants are not abusing court processes to disrupt and delay proponents”.
The government’s own interim review of the EPBC Act found that rather than causing a “green tape” problem, existing laws have failed to protect Australia’s environment. This followed the federal auditor-general’s report documenting the scandalous neglect, inefficiencies and inadequate processes in administering the act.
“My job as a climate lawyer,” says Wilkinson, “is to look at the evidence and apply the law.”
And, she says, “It is one of the unfortunate perks of accelerating climate change: the evidence keeps getting stronger.”
“The coral reefs are one of the biggest and first systems under threat from climate change,” says Bill Hare. He points to a 1999 paper from the eminent coral scientist Professor Ove Hoegh-Guldberg, which predicted that most corals across the planet would not survive the next century under unchecked climate change.
Those predictions are rapidly coming to bear.
Last year, the Great Barrier Reef Marine Park Authority downgraded the reef’s outlook from “poor” to “very poor”, while an Australian government report in December stated that in relation to the criteria upon which the reef gained World Heritage status in 1981, “components that underpin all four natural criteria have deteriorated”.
In 2018, the United Nations Intergovernmental Panel on Climate Change reported the reef had already lost 50 per cent of its shallow water corals, and a study released two weeks ago by the Townsville-based ARC Centre of Excellence for Coral Reef Studies at James Cook University found the number of small, medium and large corals had fallen by more than 50 per cent between 1995 and 2017. Climate change, says the Great Barrier Reef Marine Park Authority, is the “single greatest challenge” facing the reef.
And yet the Australian government, says Hare, continues “to ignore it and downplay it and somehow seems to wish the issue would go away … I don’t know where they stand on this but the impression you get is that they just wish the Great Barrier Reef would go away and they could get on with something else.”
Today, it’s two teenagers standing in the way of that “something else”. School exams, first year at university – these milestones pale beside the understanding that the long coral labyrinth Galvin and O’Hearn have grown up alongside is in serious trouble.
To date, the world has already experienced about 1.1 degrees of human-induced global warming. “Claire is 19 and Brooklyn is 17,” says Wilkinson. “They’re going to see damage that current politicians in power and many of us acting on behalf of young people, we’re not going to be there to see it.
“It is extraordinary what we are asking young people to face.”
This article was first published in the print edition of The Saturday Paper on Oct 22, 2020 as "New research links Adani mine to Great Barrier Reef bleaching".
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