Thread by @DrChrisMcGrath

What are the implications for other coal mines of the landmark climate & human rights litigation recommending Clive Palmer's Waratah Coal Mine be rejected? Some thoughts building on yesterday's thread about the Drug Dealers Defence.

https://twitter.com/DrChrisMcGrath/status/1596337467254132737?s=20&t=SM9I35ER8VQTwLHNSI_V1Q

If President Kingham's reasoning had been applied to the Wandoan, Alpha, Adani coal mines in 2012, 2014 and 2015, each of those mines would also have been rejected.

While neither the Wandoan or Alpha coal mines proceeded due to the poor market outlook for coal making them uneconomic, the Adani Coal Mine did proceed #Adani theguardian.com/environment/20…

The fact that applying the same reasoning to the Adani mine would lead to it being rejected points to the fundamental weakness of the original approvals and its shaky future outlook. It can only defy gravity for so long. #StopAdani #StrandedAsset abc.net.au/news/2022-06-1…

President Kingham's reasoning also poses a major obstacle for new coal mines in Queensland, particularly for thermal coal used in power generation (although most of Qld’s coal is metallurgical coal used in steel making, which is more economically valuable).

President Kingham's reasoning poses a major obstacle for new mines even though the Qld & Australian governments have shown wilful blindness to the harm caused by coal & gas due to the money & politics involved, & are likely to continue this wilful blindness in the future.

New mines in Qld are going to have to dance around the reasoning and hope they don't face an objection hearing in the Land Court so that they can rely on the wilful blindness of the Qld government protecting them.

But what are the implications of the decision for existing coal mines besides the Adani mine? How does this decision affect their potential future liability for the harm caused by the coal they produce contributing to climate change?

While President Kingham’s decision was not about attributing legal liability for climate climate, it certainly has implications for this issue. @EDOLawyers @SeanRyan271 @dbarnden @djmor6 @David_Ritter #ClimateLitigation

President Kingham found, at [1304], that “the following facts [were] either agreed or established by the evidence: 1. If the mine proceeds, the thermal coal ... will be extracted, exported and burned, emitting GHGs into the atmosphere .... 2. No tonne of CO2 is immaterial."

Her Honour made numerous findings that the 1.58 Gt CO2-e emissions from burning the coal from the mine would make a "material contribution" to harm from climate change and infringe human rights.

For instance, at [1505]: "The evidence presents a clear and pressing threat to the right to life that is now experienced by people in Queensland and will only be exacerbated by increasing emissions, to which the Project would make a material contribution. …"

These findings are the sleeper issues in the decision. They are based on uncontested or established facts. They are landmines buried and set to explode. Wilful blindness is rarely a good defence strategy for avoiding legal liability.

While tests for legal causation vary, across the differences in jurisdictions and statutes, a common principle is that where two or more causes combine to bring about harm, an act is legally causative if it “materially contributes” to the harm.

As McHugh J said in Henville v Walker [2001] HCA 52 at [106] "If the defendant’s breach has 'materially contributed' to the loss or damage suffered, it will be regarded as a cause of the loss or damage ...."
www8.austlii.edu.au/cgi-bin/viewdo…

This isn't to say emitting a single tonne of CO2 by burning coal attracts legal liability for climate change, but large coal mines cause millions or even billions of tonnes of emissions (the Waratah Mine's projected scope 3 emissions were 1.58 GtCO2). They are far above 1 tonne.

So President Kingham’s reasoning that “No tonne of CO2 is immaterial” and 1.58 Gt of emissions is a "material contribution" to harm certainly flashes a warning sign of legal liability being imposed on existing coal mines for their contributions to climate change in the future.

This liability extends both to Australia and overseas. #climatelitigation envlaw.com.au/climate-litiga…

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