When Wendy Wales and Tony Lonergan and a few of their neighbours in the New South Wales Hunter region decided to take on the expansion of a local coalmine, people thought they were “crazy” to engage in the David and Goliath battle.
“When we started this, people thought we were crazy – a little community group taking on a billion-dollar coal company, arguing that the climate harm from burning this coal is our problem too,” Wales says.
The couple live on a farm adjacent to MACH Energy’s Mount Pleasant coalmine in Muswellbrook. For more than four years, the retired schoolteachers, former Greens candidates and longstanding environment advocates have been fighting a proposed expansion of the coalmine through the courts, with community members from the Denman Aberdeen Muswellbrook Scone Healthy Environment Group (Dams Heg).
They had a question they wanted a court to answer. Is the state government responsible for the greenhouse gas emissions from the burning of coal after it is sold and exported overseas?
On Wednesday, the high court found that it is.
In a landmark 3-2 ruling, a majority of judges found the Independent Planning Commission of NSW failed to consider imposing conditions aimed at minimising these emissions – known as scope 3 emissions – to the greatest extent possible when it approved MACH Energy’s coalmine expansion.
The approval was ruled invalid.
The case, an appeal by MACH Energy to an earlier decision by the NSW court of appeal, was the first time Australia’s highest court had been asked to consider climate change.
Sign up to get climate and environment editor Adam Morton’s Clear Air column as a free newsletter
The landmark decision brings to an end a long battle for Wales and her partner, Lonergan.
Wales says when the Mount Pleasant optimisation project was approved in 2022, “if anyone was going to take it on, it was going to be us”.
“Different things pointed us in this direction and we followed them,” Wales says.
When Dams Heg was established 12 years ago, it was because a small number of local professionals – including teachers, a childcare worker and a vet – had shared concerns about the health of the local environment and climate and the effects of mining.
“It really came down to, if not us, who, and if not now, when,” Lonergan says.
“Instead of complaining we needed to take the opportunity to challenge this project.”
In the initial proceedings brought by the community group in the NSW land and environment court, the ruling was in favour of MACH Energy.
Last year, Dams Heg was successful on appeal in the NSW court of appeal, which found the planning commission was required and failed to consider the impacts of all emissions associated with the project on the local environment, including from the exported emissions.
MACH Energy challenged this decision in the high court.
Wednesday’s judgment also found the approval was invalid but on a different basis to the court of appeal, with a majority of judges ruling the planning commission did not consider whether scope 3 emissions could be mitigated.
MACH Energy’s project would have doubled the mine’s coal output to 21m tonnes a year until 2048 and 98% of the projected emissions were scope 3 emissions.
after newsletter promotion
Elaine Johnson, the director of Johnson Legal, which represented Dams Heg, says the decision confirms that Australian governments need to take responsibility for emissions generated by coal exports.
“The court has said that when considering coalmine expansions, our planning authorities must consider how to limit emissions generated from coal burned overseas,” she says.
“Given that Australia is the second largest exporter of coal in the world, this is a very significant judgment. Courts and communities around the world will be looking to what our highest court has said about our responsibilities to reduce emissions from our exports.”
The Climate Council CEO, Amanda McKenzie, likens the win to the storyline from the cult Australian movie The Castle.
“This is a real-life moment from the film The Castle. A community group from the Upper Hunter took on a coal giant, went all the way to the high court, and won,” she says.
The NSW Greens climate change spokesperson and environmental lawyer Sue Higginson says the high court has “exposed the New South Wales coal approval process for the sham it is, and declared that new coal cannot be approved when 98% of the climate pollution are ignored”.
“What an incredible moment in time, that two retired school teachers who have lived and breathed big coal in the Hunter Valley for years and years, Wendy Wales and Tony Lonergan have won the day,” she says.
“They are climate heroes and thanks to their incredible advocacy the Hunter community will be spared from the horrific impacts of this proposal.”
She says the decision could also lead to significant legal difficulty for the recently approved Hunter Valley Operations extension – the largest coal project in NSW.
Wales says the community group feels “vindicated” by the court’s decision.
“We’re still a bit disbelieving. But the journey of a thousand miles really begins with the first step,” she says.
“The hardest thing is to overcome your inertia, your self-doubt, your fears, to say there’s a moral compunction here.
“We know it and we can’t turn away from it.”
