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Federal Environment Minister Sussan Ley has approved an expansion of Whitehaven’s Vickery coal mine in northern NSW.Credit:Alex Ellinghausen

NSW approved the mine plan in 2020,but Whitehaven has had a long wait to secure the green light from the federal government. The process was delayed as a group of teenagers launched a class-action lawsuit arguing Ms Ley would violate a duty of care to protect young people against climate change if she approved the mine expansion.

Earlier this year,the court stopped short of issuing an injunction to prevent the project’s approval,but Justice Mordecai Bromberg agreed that the minister had an obligation to children to consider the harm caused by climate change as part of her decision-making in approving coal projects.

“Those potential harms may fairly be described as catastrophic,particularly should global average surface temperatures rise to and exceed 3 degrees beyond the pre-industrial level,” he said.

Ms Ley,who has since launched an appeal arguing the court erred in its findings,has attached 37 conditions to her Vickery approval announced on Wednesday.

A spokesperson for Ms Ley said the approval was made in accordance with the Commonwealth Environment Protection and Biodiversity Conservation Act following a “rigorous assessment process and includes strict environmental protection measures”.

The lawyer representing the children,David Barnden,principal at Equity Generation Lawyers,was shocked by the timing of Ms Ley’s determination as it pre-empted finalisation of the case before the court.

“The approval is a surprise in light of the Federal Court’s decision that the minister has a duty of care not to harm children,especially given that duty is the subject of ongoing legal action,” he said.

“The duty of care should act to restrain the minister from approving fossil fuel projects that will cause carbon emissions that in turn will harm children in the future.

“To make this decision is a risky move from the minister.”

‘It’s incredibly disappointing. Obviously the environment minister had a deadline to approve or deny this mine,but it’s disappointing she hasn’t extended it to wait for this whole ‘duty of care’ case to play out.′
17-year-old Anjali Sharma

Some of the teenagers and environmental campaigners,who have been fighting the project,described the approval as a “betrayal of young people and future generations”.

“It’s incredibly disappointing,” said 17-year-old Anjali Sharma,the class action’s lead litigant.

“Obviously the Environment Minister had a deadline to approve or deny this mine,but it’s disappointing she hasn’t extended it to wait for this whole ‘duty of care’ case to play out.”

The need to arrest climate change has accelerated international efforts and demands for countries to stop mining and burning thermal coal,the world’s heaviest-emitting source of energy.

UN Secretary-General Antonio Guterres last month said the latest Intergovernmental Panel on Climate Change (IPCC) report on the dramatic effect of human-induced climate change “must sound a death knell for coal and fossil fuels,before they destroy our planet”.

“OECD countries must phase out existing coal by 2030,with all others following suit by 2040,” he said.

A growing number of banks,insurers and institutional investors have also been increasingly dumping coal assets and pledging not to make new investments in the industry,citing concerns about fossil fuels’ contribution to global warming.

Still,coal prices have been rallying this year to multi-year highs,signalling the commodity’s enduring near-term demand.

The price of top-quality Australian thermal coal has surged to a decade-high $US180 a tonne as economies re-emerge from lockdowns and a warmer-than-expected summer in the northern hemisphere drove significant demand from airconditioners,while metallurgical coal prices have also been rallying.

“Against the current backdrop of record high-coal prices and strong demand in seaborne markets,the company sees a continuing role for high-quality coal of the type Vickery will produce in contributing to global carbon dioxide emissions reduction and containment efforts while simultaneously supporting economic development in our near region,” Whitehaven said on Thursday.

Coal producers and analysts say coal mined in Australia – which has a relatively high quality and energy content – could face a brighter demand outlook than coal from other sources,as coal-reliant countries in Asia retire older,less-efficient coal-fired generators and move towards newer,lower-emissions facilities.

The class-action lawyers on Thursday said they were considering the minister’s approval and further legal action.

“Our fight is far from over,” Ms Sharma said.

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