Submission on Proposed Maxwell Underground Mine

I recently prepared a detailed public submission (objection) to the proposed Maxwell Underground Coal Mine in Muswellbrook Shire. Proposals for new coal mines in NSW, to me, defy the conventions on Climate Change (such as the Paris Agreement) that Australia has signed on to, and have no place in our future as we progress to clean and sustainable energy. New coal mines undermine (pun intended) the future the world is trying to make - one where global temperatures are well below a 2-degree increase from pre-industrial levels.

I understand that simply objecting to such proposals on environmental grounds will often go nowhere, and simply result in both the government and proponent labelling me as just another 'greeny'. So, rather than creating a submission detailing the environmental implications of new coal projects in NSW, I decided to go down a different avenue. I accept that any submission made by myself is not likely to get the proposal refused outright. However, by referring to various planning instruments, cases in the Land and Environment Court, and judicial precedent, I can create a submission that can significantly slow the approval process. As the age-old saying goes, time is money. This is particularly the case for the fossil fuel industry. The longer they are made to wait for their approval, the more money they squander on their unused land and the less viable the project becomes. The project may eventually be approved - but at least I have the potential to weaken (even slightly) the lobbying and financial power of the fossil fuel industry.

The following objection was submitted to the Department of Planning, Industry and Environment. This submission was written of my own volition and represents my own views and findings.

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20 July 2020

Lauren Evans, Energy & Resource Assessments

lauren.evans@planning.nsw.gov.au

Dear Madam,

Additional Public Submission for Maxwell Underground Coal Mine Project Application SSD-9562 Reference is made to the “Submissions Report” prepared by the proponent Malabar Coal and submitted to the Department of Planning, Industry and Environment (DPIE). The report addresses submissions made by members of the public, organisations and local consent authorities. In particular, the Report addresses the concerns raised in my initial public submission made during the exhibition period of the Application on the 29th of September 2019. This submission reads as follows.

“I strongly object to this project. New South Wales should not be permitting any new coal mining projects and should be actively discouraging applications of this type. Australia needs to reduce its dependency on coal significantly and this cannot be achieved if new projects such as this are supported and approved. The long term environmental effects of mining far outweigh the minor economic benefits a new coal mine will bring to this state. In addition, automation has rendered many jobs in the mining industry redundant. Mining no long generates as much employment opportunities as it once did. I recommend that the New South Wales Government reject this application on the grounds of environmental impacts and the projects inconsistency with Australia's overall target in reducing coal dependency.”

The proponent's response to the concerns outlined in my submission are detailed below, with commentary and additional feedback provided.

Use of Project Product for Coking Coals

“At least 75% of coal produced by the Project would be capable of being used in steel-making (coking coals)”

It is unclear from the proponent's response if their Greenhouse Gas Assessment and calculation of Scope 1, Scope 2 and Scope 3 emissions have been based on the anticipation that a minimum of 75% of coal produced from the project would be used in steel-making. Should this be the case, then the DPIE should impose a condition of consent requiring that the proponent ensures that at least 75% of their product is used for such purposes. Anything less would clearly void their Greenhouse Gas Assessment and the assessment undertaken by the DPIE into the overall impact of the Project.

In addition, it is unclear whether this calculation has taken into consideration the changes in policy, financial markets and technology that will drive a reduction in greenhouse gas emissions. It is unclear if any modelling or forecasting for an anticipated reduction in coking coal demand due to reductions in greenhouse gas emissions have been taken into consideration. The International Energy Agency’s World Energy Outlook 2017 Report that modelled a Sustainable Development Scenario, predicted a 39% decline in coking coal, slightly less than the 52% decline in total global coal use by 2040 vs. 2016.

No commentary has been provided on this matter, nor what the product generated by the project would be used for in the event that demand for coking coal is significantly reduced in the near future.

Consideration of the Paris Agreement and other Climate Change Policies

“Under the Paris Agreement, each country is required to determine NDCs that will contribute to the long-term goals of the Paris Agreement to achieve a balance between anthropogenic emissions by sources and removal by sinks of greenhouse gases in the second half of this century (United Nations Framework Convention on Climate Change [UNFCCC], 2019). It is important to note that, under the Paris Agreement, each climate plan reflects the country’s ambition for reducing emissions, taking into account its domestic circumstances and capabilities (UNFCCC, 2019). Each country will have its own range of opportunities and priorities to trade off various alternative emission reduction (and carbon sink) options that relate to the economic status and physical attributes of the country.”

It is noted that cl. 14(2) of the State Environmental Planning Policy (Mining, Petroleum Production and Extractive Industries) 2007 requires the consent authority to consider an assessment of the greenhouse gas emissions (including downstream emissions) of the development and must do so having regard to any applicable state or national policies, programs or guidelines concerning greenhouse gases. However, for the purposes of this assessment, policies such as the Paris Agreement, including Australia’s Nationally Determined Contribution under the agreement are not applicable policies or guidelines for the purposes of the SEPP. This was affirmed through Wollar Progress Association Incorporated v Wilpinjong Coal Pty Ltd [2018] NSWLEC 92 at [146-150] and [183]. Should the proponent and consent authority rely on the provisions of the Paris Agreement for the purposes of cl. 14(2) of the SEPP, then the proponent and consent authority are failing in their statutory duties to adequately consider an assessment of greenhouse gases. It is imperative that an appropriate assessment of greenhouse gases by all relevant policies and enforceable legislation be carried out by both the proponent and the consent authority. Failure to do so leaves any determination open to judicial review in the Land and Environment Court of New South Wales.

Expectation that product will be consumed by signatories of the Paris Agreement

“These emissions would be significantly less than the Scope 3 emissions produced by customers using Project product coal. It is anticipated that a significant majority of the Scope 3 emissions from the use of Project coal would occur overseas. Expected export markets for Project coal are described in Section 9.1.3 and Table 9-6 of the EIS. All of these export markets are either signatories to the Paris Agreement or have commitments to reduce greenhouse gas emissions”

As noted above, it is insufficient to rely upon the provisions of the Paris Agreement for the purposes of carrying out greenhouse gas assessment under the Mining SEPP. It is therefore by extension insufficient for the proponent to rely upon the emissions reduction commitments of signatories under this agreement when undertaking its assessment of the greenhouse gases for the project. A full assessment of the project should account for Scope 3 emissions of the project without taking into consideration any commitment that consumer countries may have made under the Paris Agreement.

Requirement of Assessment of Scope 3 Emissions

“The NSW Government has announced that it will introduce legislation to prevent the regulation of Scope 3 emissions in NSW mining approvals (NSW Government, 2019).”

This comment is irrelevant for the purposes of the legislation and relevant SEPPs at the time the Application was made. It is insufficient to waive consideration of Scope 3 emissions from the assessment of the Application just because the NSW Government has indicated it may remove this statutory requirement. As it currently stands, the proponent and the consent authority are required to account for the downstream use of coal mined from the proposed project.

Further to this, requirements to consider the impact of Scope 3 emissions for coal mine applications have been affirmed through the Land and Environment Court in recent years. As detailed in Gloucester Resources Limited v Minister for Planning [2019] NSWLEC7, scope 3 emissions were not only considered a requirement in assessing the environmental impact of a coal-mining project, but also as a matter of the public interest. On this matter, Judge Preston concluded that:

“I find, therefore, that the consideration of the impacts of the Project on the environmental and the public interest justify considering not only the Scope 1 and Scope 2 emissions but also the Scope 3 emissions of the Project.” [513]

Under cl. 4.15(1) of the Environmental Planning & Assessment Act 1979, in determining a development application, a consent authority is to take into consideration matters that are of relevance to the development including the public interest. As affirmed above in Gloucester Resources Limited v Minister for Planning [2019] NSWLEC7 [513], the consideration of Scope 3 emissions are a matter of the public interest. Therefore, the proponent will not be absolved of their requirement to consider Scope 3 emissions should the NSW government amend the Mining SEPP to prevent the regulation of Scope 3 emissions in NSW mining approvals. Appropriate consideration needs to be given to the project potential Scope 3 emissions as per the existing legislation and as a matter of the public interest.

Should you wish to discuss any of the matters raised in this submission, please contact me by email and/or phone.

Yours sincerely, Douglas Bennett