Class Action Suit Filed in Australia Opposes Coal Expansion Project on Behalf of Global Youth

On September 8, 2020, the law firm Equity Generation Lawyers filed a class action on behalf of young people globally, seeking an injunction to restrain the Australian Government's Minister for the Environment, Sussan Ley, from giving approval to the Vickery Extension Project. The Vickery Extension Project is an AUD $700 million proposal by Whitehaven Coal Limited to construct an open-cut coal mine and associated on-site infrastructure near Gunnedah, New South Wales, which Whitehaven estimates will provide a net economic benefit to New South Wales of AUD $1.2 billion and create 950 jobs during the construction and operation of the mine. The injunction was filed in the Federal Court of Australia and relies on a unique legal argument that could create new legal precedent in Australia if granted, as the class action is brought by eight young Australians as representative members of a class consisting of every young person in the world under the age of 18.

The Vickery Extension Project was initially approved in August 2020 by the New South Wales Independent Planning Commission under the Environmental Planning and Assessment Act 1979 (NSW), which requires review of projects of a certain size, economic value, or potential impact as "state significant developments." In its statement of reasons, the Independent Planning Commission concluded at paragraphs 222 and 223 that:

The Commission notes that between 60-70% of the coal proposed to be extracted is likely to be metallurgical coal, with the remainder being thermal coal . . . . The Commission notes that at this point in time, metallurgical coals are essential inputs for the current production of approximately 70% of all steel globally as stated by the Applicant [Whitehaven] in paragraph 200 above. The Commission is of the view that in the absence of a viable alternative to the use of metallurgical coal in steel making and on balance, the impacts associated with the emissions from the combustion of the project's metallurgical coal are acceptable . . . .

[T]he Commission is of the view that the GHG [greenhouse gas] emissions for the Project have been adequately considered. The Commission finds that on balance, and when weighed against the relevant climate change policy framework . . . the impacts associated with the GHG emissions of the Project are acceptable and consistent with the public interest.

Having received state approval under New South Wales law, the Vickery Extension Project now requires approval from the federal Minister for the Environment because the project is anticipated to impact threatened species and water resources, both of which act as "triggers" requiring approval under sections 18, 18A, 24D, and 24E of the Environment Protection and Biodiversity Conservation Act 1999 (Cth). Whitehaven has made an application to the Minister under those sections, and the Minister needs to decide whether to approve or reject this application, taking into account:

• the principles of ecologically sustainable development;
• the impacts of the proposed development;
• any referrals or recommendations made with respect to the development;
• any community or stakeholder inputs;
• relevant comments from other government members and members of the public (such as information on social and economic aspects of the proposed development); and
• any other relevant information on the impacts of the development, including any advice obtained from the Independent Expert Scientific Committee on Coal Seam Gas and Large Mining Development.

The class action was filed to enjoin the Minister for the Environment from issuing an approval. The class action argues that the Minister for the Environment owes the representative members and every young person in the world under the age of 18 a duty to exercise the powers under the Australian Environment Protection and Biodiversity Conservation Act 1999 (Cth) with reasonable care not to cause them harm. The representative members submit that if the Minister for the Environment approves the Vickery Extension Project, she will breach this duty of care because the project will materially contribute to climate change and cause harm to every young person in the world under the age of 18. In short, the class action claims the Minister for the Environment cannot approve projects or developments that will make climate change worse. 

Equity Generation Lawyers argues that a precedent for this kind of case was set in Australia in 2016, when an injunction stopped the then-Minister for Immigration from moving a refugee to anywhere besides Australia because he owed a duty of care to her. See Plaintiff S99/2016 v Minister for Immigration and Border Protection [2016] FCA 483.

The law firm also argues on its website that if the Vickery Extension Project is approved, the coal burned will result in 370 million tons of carbon emissions over the next 25 years, further fueling climate change.

The hearing and determination of this injunction is expected to occur toward the end of 2020, and until that time, the Minister for the Environment has undertaken not to decide whether to approve the Vickery Extension Project.