14 May 2019
Probably the most controversial and much-discussed aspect of the recent refusal by the NSW Land and Environment Court of planning approval for the Rocky Hill coal mine is how the Court supported its decision by drawing on international jurisprudence linking fossil fuels and climate change.
But by refusing development consent on the basis of the mine’s likely contribution to climate change and adverse social impacts, the Court has also drawn our attention to the increasing importance of human rights considerations in assessing the impact of major projects.
Proponents of major projects should be mindful of the link between climate change and human rights, particularly when assessing the public interest criterion of project impacts.
In an evocative closing paragraph, the Court summarised the basis for its decision:
'…an open cut coal mine in this part of the Gloucester valley would be in the wrong place at the wrong time. Wrong place because an open cut coal mine in this scenic and cultural landscape, proximate to many people’s homes and farms, will cause significant planning, amenity, visual and social impacts. Wrong time because the GHG emissions of the coal mine and its coal product will increase global total concentrations of GHGs at a time when what is now urgently needed, in order to meet generally agreed climate targets, is a rapid and deep decrease in GHG emissions. These dire consequences should be avoided. The Project should be refused.'
It is clear that this decision will have a considerable influence on the evidence required to be provided of the potential effects on climate change of new coal mines and other greenhouse gas (GHG) generating and fossil fuel-dependent industries in New South Wales.
The link between climate change and the burning of fossil fuels is well established. The Court cited evidence given by ANU Professor Will Steffen that the continuing effects of anthropogenic climate change initiated by excessive emissions of GHG’s include increases in sea levels, ocean warming and acidification, and increases in the intensity and frequency of extreme weather events – including flood, drought, heat waves and a harsher fire-weather climate.
Groundswell, a community organisation that was granted leave to join the proceedings, argued that the impact of climate change on the community is so great as to require the rejection of the project. On behalf of Groundswell, Professor Steffen’s evidence was that to keep the world’s temperature at global targets below 2C above pre-industrial temperatures, most of the world’s existing fossil fuel reserves must be left in the ground. It follows, he said, that no new fossil fuel development is consistent with that goal.
While the Court did not agree that no future fossil fuel development could ever again be approved, it suggested that there should be greater focus on prioritising comparatively less-damaging proposals. This would involve fully assessing both the absolute and relative merits of a proposal, including the amount of GHG emissions it would produce and the likely broader contribution to climate change.
Although the Rocky Hill decision did not expressly connect the climate change-related consequences of the project's approval with human rights impacts, the decision has significance for human rights.
In its concern for the social impact of the proposed development, the Court implicitly recognised the adverse human rights implications of climate change.
As outlined by Professor Steffen, climate change has clear and direct consequences for people across the world. It affects considerations enshrined in the Declaration of Human Rights, such as the right to life, adequate food, water, health, housing, to livelihoods, and an adequate standard of living.
Chief among these is the right to life. As Kyung-wha Kang, former UN Deputy High Commissioner for Human Rights, noted:
'Global warming and extreme weather conditions may have calamitous consequences for the human rights of millions of people … ultimately climate change may affect the very right to life of various individuals … [countries] have an obligation to prevent and address some of the direst consequences that climate change may reap on human rights'
Rising sea levels threaten to displace millions around the world, destroying livelihoods, communities and heightening human insecurity. Substantial increases in the number of extreme weather events (a consequence of climate change) also pose a direct threat to the right to life.
The risk has a particular impact on indigenous peoples, due to their deep engagement with the land. The Australian Human Rights Commission recently predicted that northern Aboriginal communities will bear the brunt of climate change and will face serious risk of disease and heat stress, as well as loss of food sources from floods, droughts and more intense bushfires.
The Court did not accept arguments that the impacts of one mine are too remote to warrant refusal on the basis of a scientifically complex force linked to global trends in resource and energy exploitation and use.
Rather, the Court acknowledged that these macroscopic impacts, which will affect humanity as a whole, are capable of justifying a decision to refuse consent to a single proposed project on its merits.
Although the GHG emissions and the consequent impact on climate change played a part in the decision to refuse development consent, the Court explicitly acknowledged that the primary and 'better' reason for its decision was the project's effect on social and other amenities. This is another aspect of the decision’s relevance from a human rights perspective.
Chief Justice Preston had significant regard for the fact that the project would 'adversely affect the social composition of the community and the current rural town atmosphere' and 'significantly affect people’s sense of place and hence community'. His Honour strongly endorsed expert evidence of Dr Askland where he stated:
'The risks associated with the project in relation to sense of place relate to:
(Askland Report, )
His Honour was concerned that these changes would undo strong community ties and the attachment the residents have to Gloucester as a place, in light of their lived experiences and strong emotional bonds to the land.
The Court also recognised that the distributive injustice of the project would also have social impacts. The benefits of the mine would be experienced by a select few for a limited period of time, but the detriment would be ongoing and not necessarily experienced by those who would benefit.
In all, it was thought that the resultant social risk was so extreme that overall, the project's effects would be more negative than positive — even taking into account the lost economic opportunity.
Ultimately the decision shows that the Court implicitly took into account a number of human rights consequences that may result from a large scale development. It did this by placing particular emphasis on the Rocky Hill project's social and community impacts and citing these as a specific and defined basis for refusing to grant consent.
The weight afforded by the Court to the project's perceived social detriment echoes an emerging sentiment among global policymakers that broader social 'well-being' is a key consideration that ought to be given greater weight.
The impetus behind this is the acknowledgement that decreased social well-being can indirectly bear upon fundamental human rights. One example is the right to the enjoyment of the highest attainable standard of physical and mental health and the right to an adequate standard of living under the International Covenant on Economic, Social and Cultural Rights (see Article 12). More generally, resultant human insecurity is seen as an undesirable end in itself.
It is also worth considering the relevance of rights to identity and self-determination. It is a generally-accepted principle that these rights are intertwined with the need to belong to a community or other social group. This is because humans exist naturally as a 'eusocial' species that is heavily dependent on communal relationships. In order for these rights to be fulfilled, community groups must be afforded stability and support to endure, flourish and grow.
There is academic recognition that local government and planning law can curtail and restrict or promote and assist the fulfilment of these rights, by regulating land use through zoning. Much of this discourse has centred around the emerging concept of a 'right to remain' amidst the phenomenon of gentrification and the marginalisation of particularly vulnerable or ostracised social groups. Those affected may include immigrants, particular ethnic groups, Indigenous peoples, and the socio-economically disadvantaged.
However, there is room to apply these concepts in a more mainstream manner, where there are contentious and large-scale projects that may cause enduring shifts in the composition and dynamic of local communities.
The Gloucester decision recognises a notion of ‘communal well-being’ that is not necessarily intertwined with the pursuit of economic gain. This shift away from abstractions like economic growth, and towards metrics better reflecting the tangible enrichment of human life, has long been stressed in development studies.
Amartya Sen, in his renowned book ‘Development as Freedom’ ((2004) Oxford University Press), argues that greater emphasis ought to be place on substantive freedoms, 'expanding the freedoms that people enjoy; the enrichment of human life'.
In a similar vein, the recent Marsh Global Risks Report 2019 recognises societal stress as a key risk for the first time ever. Like Chief Justice Preston’s judgment, the report suggests that communal ‘well-being’ is an important public interest consideration. It highlights how individual harms and stressors can contribute towards (and exacerbate) systemic risks, with grave implications. For instance, broader social discontent could generate greater political volatility, and increase the risk of social unrest.
As can be seen, policy makers, academics and now the courts, are taking a wider perspective on the environmental impacts of developments under assessment.
Proponents of highly-impactful developments should be mindful of the effects of climate change from this different perspective. GHG emissions affect the environment and must be fully assessed on that basis. The Rocky Hill decision makes clear that this 'pure' environmental assessment must include direct, indirect and downstream impacts of GHG emissions.
Proponents should also consider the social and, ultimately, the human rights impacts of the rapid and severe changes to the environment caused by climate change.
As non-economic metrics evolve and gain greater weight in environmental impact assessment, predictions of a project’s employment generation capacity alone will not satisfy the social and human rights expectations of planning authorities and communities into the future.