Latest Anvil Hill legal case fails, but campaign continues!

28 November 2007

George Woods from Rising Tide The controversial Anvil Hill open cut coal mine has become a symbol not only for the rampant expansion of the coal industry in the Hunter Valley and its contribution to greenhouse gas pollution, but also of the failure of state and federal legislation to provide a responsible planning and accountability framework in a NSW that is “open for business.” The latest legal challenge against the mine (on which no work has yet begun) has failed, but in failing, has shown up the extent to which planning law in NSW has been slashed apart by the NSW Labor Government. The first legal challenge concerning Anvil Hill was successful: Peter Gray’s historic case in the Land and Environment Court twelve months ago enshrined in case law the principle that the impact of downstream greenhouse gas emissions from coal mines must be included in the environmental assessment of major projects of its kind, and that the principles of ecologically sustainable development apply to all developments in NSW – expedited or not. The victory, though significant, was brief. The State Government had pre-emptively amended the Planning Act to prevent incomplete assessment processes from delaying approval of major projects. The result? In NSW, now, environmental assessments of major projects do not need to comply with Government requirements for the project to be approved. The greenhouse impact of Anvil Hill needed to be assessed, but failure to assess it need not stop the Planning Minister approving it. Which he subsequently did. The second legal challenge to the mine was heard in the Federal Court, and argued that the Commonwealth Government needed to assess the impact of the mine because the greenhouse gases released from the coal won from Anvil Hill will significantly impact matters of national environmental significance, like the Blue Mountains World Heritage Area, which is predicted to be consumed by more fierce and more frequent bushfires as the climate changes, and the Great Barrier Reef, which is predicted to be killed altogether by warming seas. That case was unsuccessful, showing up the inability of the complex and feeble Environment Protection Biodiversity Conservation Act to protect iconic Australian environments from gradual obliteration by global warming. And finally, the NSW Land and Environment Court handed down a decision today (28th November, 2007) dismissing a challenge by Newcastle activist Annika Dean to the mine’s approval on the grounds that 10% of the area to be cut open for coal was zoned for scenic protection – a local environmental zoning that wholly prohibits open cut coal mining. The Court’s finding that the Minister for Planning had the power to approve the mine speaks volumes for the executive power that now resides in the NSW Planning Minister following ten years of planning “reform.” It is conceivable now that major projects – housing subdivisions, mines, aluminium plants, tourist resorts – could be approved for construction on lands that have been zoned almost entirely for environmental protection, or open space. As long as some of the area is zoned for development, the judgement implies, the Minister can approve what he likes. Anvil Hill is now an icon of the climate change issue in NSW. The Minister’s approval of the mine will send an additional 24 million tonnes of carbon dioxide into the atmosphere every year, and yet, it is allowed, even encouraged, to go ahead, in the teeth of community opposition and growing alarm about accelerating greenhouse pollution. It is also, thanks largely to the Planning Minister, Frank Sartor, an icon of the kind of unaccountable, irrational and damaging decisions that get made by executives with too much discretionary power. Another round of planning reforms is on exhibition now… I wonder what else the Minister has in store?