How do we know which coal or gas development is producing the emissions that are ramping up climate change and destroying our ecosystems? It seems that this is the question at the core of a national cop out on reducing coal and gas production and the drive to reduce carbon emissions.

To say the least, this was the level of banality reflected in the Federal Government’s legal arguments presented to the Federal Court in which government lawyers proposed, among other things, that the emissions deriving from extensions at Whitehaven’s Narrabri and Mount Pleasant’s Muswellbrook coal mines would be a drop in the ocean of the broader problem of global carbon emissions.

This was not a denial that fossil fuel expansion would have the net effect of increasing global emissions, just that the minister has no way of knowing whether the carbon dioxide molecules deriving directly or indirectly from those mining operations are those specifically impacting protected ecosystems or threatened species within them.

Unfortunately, this is the sort of nonsense that wins legal cases, which are argued on black letter law not morality or principles.

This contributed to a Federal Court ruling that the Australian Environment Minister does not have to factor the impact of emissions and climate change on the environment into approvals of new fossil fuel development applications.

It was a blow for the Environmental Council of Central Queensland (ECoCeQ), which brought its so-nicknamed “living wonders” case  to the court in relation to these two mining extension applications, which are before the Federal Environment Minister, Tanya Plibersek.

The legislative framework within which the Minister must consider these applications is the EBAC Act – the Environment Protection and Biodiversity Conservation Act 1999.

The Environment Minister has veto power over projects that would directly impact important ecosystems, even protected species.

This was recently illustrated by Ms Plibersek’s decision on the Victorian Renewable Energy Terminal in Western Port and her similar disposition towards Toondah Harbour in Queensland. Both of these were based on their likely impact on fragile Ramsar wetlands, which are internationally protected.

What the Federal Court ruling means is that she could not explicitly take into account the impact of increased emissions directly or indirectly resulting from fossil fuel projects on those same wetlands or any other ecosystems.

The ruling against the living wonders case will undoubtedly re-energise the calls to fix the Act, which environment advocates have long argued is fatally flawed through omission of any requirement for consideration of climate impacts on the environment.

The Federal Court’s Chief Judges appear to support this view, remarking that the current environment laws are “ill-suited” for assessing the impact of climate change on the environment.

But of course, legislative action in any sphere reflects the will and purpose of the government to remove loopholes through which there is no doubt mining interests will turbocharge their efforts to expand existing and open new coal and gas extraction.

This may well play in mining communities and electorates in regions that the government must retain or win to hold office in 2025. But Australia’s stated aspirations for net zero by 2050 will start to ring hollow if the government turns a blind eye to this shortcoming within EBAC, or fails to establish alternative arrangements to broaden the scope of the Minister’s considerations and powers.

Without legislative change, ECoCeQ’s defeat will set an unfortunate precedent for those pursuing more aggressive and positive action to drive down carbon emissions to mitigate climate change. That’s the way the law works.

In the meantime, the fossil fuel industry will always be thankful their molecules travel incognito in an crowded atmosphere.

Photo by D koi on Unsplash