The Precautionary Principle: A Thrill Ride on the Roller Coaster of Energy and Climate Law
| Date | 01 April 2009 |
| Author | Rosemary Lyster,Eric Coonan |
| DOI | http://doi.org/10.1111/j.1467-9388.2009.00619.x |
| Published date | 01 April 2009 |
RECIEL 18 (1) 2009. ISSN 0962 8797
38
© 2009 Blackwell Publishing Ltd., 9600 Garsington Road, Oxford OX4 2DQ, UK and 350 Main Street, Malden, MA 02148, USA.
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ORIGINAL ARTICLETHE PRECAUTIONARY PRINCIPLE: ENERGY AND CLIMATE LAW
The Precautionary Principle: A Thrill Ride
on the Roller Coaster of Energy and
Climate Law
Rosemary Lyster and Eric Coonan
The International Energy Agency has reported that,
in 2007, fossil fuels were the source of 66% of global
energy production, while the Intergovernmental
Panel on Climate Change has found that 60% of all
anthropogenic greenhouse gas emissions in 2004
were carbon dioxide emissions from the stationary
energy sector. This article relies on recent case law in
Australia to assess the extent to which the precau-
tionary principle is a relevant consideration for
development consent authorities determining appli-
cations for energy-generation facilities, including
coal-fired power stations, coal mines, wind farms
and uranium mines. What emerges is that there is
really no certainty that the precautionary principle
will be applied consistently by Australian courts to
determine the legal responsibilities of decision mak-
ers assessing energy projects. In this sense, the pre-
cautionary principle has taken a thrill ride on the
roller coaster of energy and climate law in Australia.
In 2007, the International Energy Agency reported
that fossil fuels (coal, oil and natural gas) were the
source of 66% of global public electricity production.
In Organization for Economic Cooperation and Deve-
lopment (OECD) countries, they represent 61% of the
fuel mix, while in developing countries and countries
in transition, they average 72% of the mix. Only 20
countries in the world account for 80% of current
global electricity production from fossil fuels, with the
USA and China together accounting for 44% of the
global total.1
The 2007 Fourth Assessment Report of the Intergovern-
mental Panel on Climate Change (IPCC)2 estimated
that in 2004 anthropogenic greenhouse gas emissions
were 50 Gt CO2-e.3 Almost 60% of this total was
emissions of carbon dioxide from the stationary energy
sector, i.e. electricity generation and use of energy in
industrial processes (such as cement production and
natural gas flaring). The IPCC also reported that
carbon dioxide emissions from land-use change and
forestry make up 17% of total emissions. Slightly less
than 25% of emissions were from other gases includ-
ing methane (14%), nitrous oxide (7%) and a range of
industrial gases (1%).
More than 40% of global emissions emanate from
China, the USA and the EU, while the 20 largest emitters
(including emissions from land-use change and forestry)
are responsible for more than 80% of global emissions.
Carbon dioxide emissions from fossil fuels are the
largest and fastest-growing source of greenhouse gases.
They have expanded by 3% per annum in the early
twenty-first century. Non-OECD countries are driving
global trends in emissions, which, since 2000, have
been growing almost eight times faster than OECD
emissions, accounting for 85% of the growth in global
emissions. In 2005, non-OECD countries were re-
sponsible for just over half of global energy use and
emissions, and 45 per cent of global output.4
Given the well-documented link between energy
production and consumption and global climate change,
there is cause for concern about the future sustainability
of life on the planet unless energy and climate law
actively counteracts these impacts. This body of law
cannot be developed in isolation. It must incorporate
the principles of ecologically sustainable development
(ESD). The principles of ESD – intergenerational
equity, the polluter pays principle, the precautionary
principle and conservation of biological diversity – are
now well known. They were clearly articulated in the
1 International Energy Agency, Worldwide Trends in Energy Use
and Efficiency (IEA, 2007), at 72 available at
Textbase/Papers/2008/cd_energy_efficiency_policy/1-Croos-sectoral/
1-Indicators_2008.pdf>.
2 Working Group I to the Fourth Assessment Report of the IPCC,
Climate Change 2007 – The Physical Science Basis (Cambridge
University Press, 2007); available at .ipcc.ch/
SPM2feb07.pdf>.
3 CO2e is a measure which describes how much global warming a
given type and amount of greenhouse gas may cause, using the
functionally equivalent amount or concentration of carbon dioxide
(CO2) as the reference.
4 R. Garnaut, The Garnaut Climate Change Review Final Repor t
(Cambridge University Press, 2008), at 55–56, available at
www.garnautreview.org.au/index.htm>.
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documents which emanated from the 1992 United
Nations Conference on Environment and Develop-
ment (the Rio Conference). These include the Rio
Declaration5 and Agenda 21.6 In addition, imperatives
for reducing greenhouse gas emissions were included
in the United Nations Framework Convention on
Climate Change (UNFCCC), as well as its Kyoto Protocol.7
The Johannesburg Plan of Implementation (JPOI),8
emanating from the 2002 World Summit on Sustainable
Development (WSSD), reiterated the links between
sustainable development and the supply of energy9
and climate change.10
This article assesses the relevance of the precautionary
principle to energy and relies upon an excursus of the
principle provided elsewhere in this issue of RECIEL
by Jaqueline Peel. It is divided into four parts. In the
first part, principles of international environmental
law are discussed to establish the basis for the applica-
tion of the precautionary principle to energy and climate
law. In the second part, the range of regulatory meas-
ures that should be adopted in accordance with the
precautionary principle to curb greenhouse gas emis-
sions from the energy sector is discussed. In the third
part, the acceptance or rejection of the precautionary
principle at the hands of the Australian judiciary, when
assessing energy-related development applications, is
analysed. Finally, the fourth part questions the role of
the principle where uranium is mined.
THE PRECAUTIONARY
PRINCIPLE AT THE
INTERNATIONAL LEVEL
While Agenda 21 draws attention to the necessary links
between climate change and energy, the UNFCCC and
the Kyoto Protocol are the principal international law
instruments for reducing greenhouse gas emissions.
Article 3.3 of the UNFCCC states:
The Parties should take precautionary measures to anticipate,
prevent or minimize the causes of climate change and
mitigate its adverse effects. Where there are threats of
serious or irreversible damage, lack of full scientific certainty
should not be used as a reason for postponing such measures,
taking into account that policies and measures to deal with
climate change should be cost-effective so as to ensure global
benefits at the lowest possible cost. To achieve this, such
policies and measures should take into account different
socio-economic contexts, be comprehensive, cover all
relevant sources, sinks and reservoirs of greenhouse gases
and adaptation, and comprise all economic sectors. Efforts
to address climate change may be carried out cooperatively
by interested Parties.
The Kyoto Protocol, by requiring developed countries
to reduce their emissions by on average 5% by 2008–
2012,11 was the first international measure adopted to
deal with climate change. By incorporating the Protocol’s
flexibility mechanisms of the Clean Development
Mechanism, Joint Implementation and emissions
trading, the international community agreed to measures
that would be ‘cost-effective so as to ensure global
benefits at the lowest possible costs’.
The JPOI, developed at the WSSD, highlights other
energy-specific measures that should be adopted.
Significantly, the JPOI requires countries to integrate
energy considerations, including energy efficiency,
affordability and accessibility, into socio-economic
programmes.12 They should also develop alternative
energy technologies to secure a greater share of
renewable energies in the energy mix.13 The JPOI calls
on governments to reduce market distortions to
promote energy systems compatible with sustainable
development. This could be done through the use of
improved market signals, including restructuring
taxation and phasing out harmful subsidies to reflect
their environmental impacts.14 Governments are further
encouraged to improve the functioning of national
energy markets in such a way that they support sus-
tainable development, overcome market barriers and
improve accessibility.15
The international environmental law instruments,
discussed above, contain a number of key messages
for the development of energy and climate law. They
are that energy use should be ecologically sustainable,
including by adopting the precautionary principle;
renewable energy technologies should be promoted
and adequately represented in the energy fuel mix;
national energy efficiency programmes should be
pursued; market distortions and perverse subsidies,
which impede a sustainable energy market, should
be removed; national energy markets should function
5 Rio Declaration on Environment and Development (A/CONF.151/
26, 14 June 1992), Vol. I, Annex I available at .unep.org/
Documents.Multilingual/Default.asp?DocumentID=78&ArticleID=1163>.
6 Agenda 21 (A/CONF.151/26, 14 June 1992), Vol. I, Annex I available
at .un.org/esa/sustdev/documents/agenda21/english/
agenda21toc.htm>.
7 Kyoto Protocol to the United Nations Convention on Climate
Change (Kyoto, 13 December 1997), available at
resource/docs/convkp/kpeng.pdf>.
8 Johannesburg Plan of Implementation (UN Doc. A/CONF.199/L.1,
4 September 2002), Resolution I, Annex available at
org/en/docs/aconf199d20&c1_en.pdf>.
9 Ibid., Principle 20.
10 Ibid., Principle 38.
11 See Kyoto Protocol, n. 7 above, Annex B.
12 See JPOI, n. 8 above, Article 19(b).
13 Ibid., Article 19(c).
14 Ibid., Article 19(p) and (q).
15 Ibid., Article 19(r).
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in a way that promotes sustainable development;
and grid extensions are not necessarily the preferred
method of increasing access to electricity.
DESIGNING AN ENERGY AND
CLIMATE LAW FRAMEWORK
POLICY IN ACCORDANCE
WITH THE PRECAUTIONARY
PRINCIPLE
It has been suggested elsewhere16 that where govern-
ments do commit to reducing greenhouse gas (GHG)
emissions, as they should do consistently with the
precautionary principle, the following policy choices
are available to them:
• information and education campaigns;
• various forms of regulations or standards, includin g
renewable energy, energy efficiency and GHG re-
porting measures;
• fiscal measures, including grants, subsidies and
rebates;
• market-based instruments, including carbon taxes
and emissions trading.
While information and education campaigns as well as
fiscal measures are all desirable, the authors are of the
view that GHG emissions will not be effectively abated
unless enforceable legislative measures are introduced.17
The negative externalities of global energy systems
must be internalized through regulation, not voluntary
programmes. In this regard, emissions-trading schemes
are being established all around the world to require
liable entities to reduce their GHG emissions. In addi-
tion to this, Renewable Portfolio Standards are being
adopted in many jurisdictions, as are demand-side
management and energy-efficiency obligations. Courts
around the world, meanwhile, are developing a sound
energy and climate law jurisprudence with respect to
public and private law matters.18
JUDICIAL PRONOUNCEMENTS
ON THE PRECAUTIONARY
PRINCIPLE AND ENERGY-
RELATED DEVELOPMENTS
Turning to the development of energy and climate law
jurisprudence, this section comprises four different
categories of decisions. They are decisions relating to
the construction of coal-fired power stations, the mining
of coal as a key energy resource, the GHG emissions
associated with a large redevelopment project and the
construction of wind farms. In all of these cases,
aspects of the development consent process, and the
relevance of the precautionary principle, was dealt
with by the Australian courts. The theme which runs
through these cases is the findings of the courts
regarding whether the decision maker is required, under
various pieces of legislation, to consider ecologically
sustainable development, and especially the precau-
tionary principle, as a matter of law. As the analysis
shows, the precautionary principle has had a thrill ride
up and down the roller coaster of climate law at the
hands of the Australian judiciary.
THE PRECAUTIONARY PRINCIPLE
AND POWER STATIONS
One of the earliest decisions handed down in Australia
which links energy and the precautionary principle is
Greenpeace Australia Ltd v. Redbank Power Company
Pty Ltd and Singleton Council.19 This was a merits appeal
in the Land and Environment Court of New South
Wales against a decision to grant development consent
for the construction of a power station and ancillary
facilities. The applicant’s concern was with the GHG
emissions from the power station when it was fully
operational. It was contended that the Court should
take into account the precautionary principle and
refuse to grant consent. Chief Justice Pearlman accepted
that the project would emit carbon dioxide which
would contribute to the enhanced greenhouse effect and
that this was a matter or national and international
concern.20 Her Honour held, however, that there was
nothing in the UNFCCC and domestic policy documents
which prohibited the development of energy projects
that emit GHGs. Furthermore, they ‘do not cast
obligations upon individual operators in the energy
field’.21 Judge Pearlman also noted the uncertainty of
the impact of the emissions on global warming at the
State, national and international levels. Although, Her
16
Prime Ministerial Task Group on Emissions Trading, Task Group
Report (Department of the Prime Minister and Cabinet, 2007), at
45, available at .au/tep/72614>. This repor t
was prepared by a joint government–business Task Group on Emis-
sions Trading on behalf of the former Prime Minister of Australia,
John Howard.
17 See R. Lyster, ‘The Implications of Electricity Restructuring for a
Sustainable Energy Framework: What’s Law Got To Do With It?’,
20:5 Environmental Planning and Law Journal (2003), 359.
18 R. Lyster, ‘Chasing Down the Climate Change Footprint of the
Public and Private Sectors: Forces Converge’, 24:4 Environmental
Planning and Law Journal (2007), 281; and R. Lyster, ‘Chasing
Down the Climate Change Footprint of the Public and Private
Sectors: Forces Converge – Part II’, 24:6 Environmental Planning
and Law Journal (2007), 450, as well as all of the academic com-
mentary cited therein.
19 Greenpeace Australia Ltd v. Redbank Power Company Pty Ltd
and Singleton Council (1994), 86 LGERA 143.
20 Ibid., at 153.
21 Ibid.
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Honour acknowledged that in these circumstances the
precautionary principle was ‘triggered’ and that it
dictated that a cautious approach should be adopted
in determining whether or not to grant consent, it did
not ‘require that the greenhouse issue should outweigh
all other issues’.22 Development consent was granted
and all of Greenpeace’s proposed conditions of consent
relating to GHG emissions were rejected.23 The only
GHG-related condition imposed was a modification of
one imposed by Council (the original consent authority)
relating to tree planting. The judge required a tree-
planting programme to the reasonable satisfaction of
the appropriate council officer that ‘may constitute a
greenhouse sink’.24
THE PRECAUTIONARY PRINCIPLE
AND COAL MINING
Assessing Coal Mines under the Environ-
mental Planning and Assessment Act 1979
(NSW) The facts of Gray v. The Minister for Planning
and Others25 were that Centennial Hunter Pty Ltd had
applied to the Minister for Planning for approval
under Part 3A26 of the Environmental Planning and
Assessment Act 1979 (NSW) (EPAA) to develop a coal
mine known as the Anvill Hill project in the Hunter
Valley. The coal mine would produce 10.5 million tonnes
of coal per annum over a lifespan of 21 years. Part 3A
establishes a scheme whereby the Director-General
of the Department must prepare environmental assess-
ment requirements to assist the Minister in deciding
whether or not to approve projects. Section 75F(2)
requires the Director-General to prepare environmental
assessment requirements in respect of the project. An
application for judicial review was made to the Land
and Environment Court of New South Wales claiming
that in determining these requirements, the Director-
General had failed to consider the Scope 3 emissions27
of the coal mining project.
Justice Pain held that the environmental assessment
required by the Director-General of the proponent
omitted to assess the full impact of GHG emissions
resulting from the project. Although there was a
detailed assessment of emissions arising directly from
the project and from its electricity use, the environ-
mental assessment was held to be insufficient for
failing to detail the indirect impacts of the burning of
the coal by third parties. In handing down this judgment,
Her Honour relied on the objects clause28 of the EPAA,
which encourages ESD, including the adoption of the
precautionary principle.
Relying on Telstra Corporation Ltd v. Hornsby Shire
Council,29 Justice Pain held that the Director-General
must act in the public interest and that consideration
of the public interest means that the principles of ESD
must be considered by a decision maker,30 with the
precautionary principle and intergenerational equity
being the two most relevant ESD principles in the
present case.31 The applicant submitted that the Director-
General had failed to take the precautionary principle
into account. Her Honour held that:
. . . the function of the precautionary principle is to require
the decision-maker to assume that there is, or will be a
serious or irreversible threat of environmental damage and
to take this into account, notwithstanding that there is a
degree of scientific uncertainty about whether the threat
really exists or its extent.32
Justice Pain went on to say that:
What is required is that the Director-General ensure that
there is sufficient information before the Minister to enable
his consideration of all relevant matters so that if there is
serious or irreversible environmental damage from climate
change/global warming and there is scientific uncertainty
about the impact he can determine if there are measures he
should consider to prevent environmental degradation in
relation to this project.33
Her Honour concluded that the Director-General had
failed to take into account the precautionary principle
when he accepted the proponent’s environmental
assessment of the Centennial project, absent Scope 3
emissions, as adequate34 and proceeded to place it on
public exhibition under Section 75H(3) of the EPAA.35
This section requires the Director-General, after he
has accepted the environmental assessment, to make
it publicly available for at least 30 days. During that
period, under Section 75H(4), written submissions may
22 Ibid., at 154.
23 Ibid., at 156–157.
24 Ibid., at 156.
25 Gray v. The Minister for Planning and Others, [2006] NSWLEC
720 (27 November 2006). For a full discussion of this case, see
D. Farrier, ‘The Limits of Judicial Review: Anvil Hill in the Land and
Environment Court’, in T. Bonyhady and P. Christoff (eds), Climate
Law in Australia (Federation Press, Sydney, 2007), 189.
26 Part 3A of the Environmental Planning and Assessment Act 1979
(New South Wales) requires the consent of the Minister for ‘major
infrastructure’ projects. See Environmental Planning and Assessment
Act 1979 (New South Wales), available at
au/legis/nsw/consol_act/epaaa1979389/>.
27 Ibid. Scope 3 emissions relate to the burning of the coal and may
be regarded as a ‘downstream’ effect of a coal-mining project.
28 Ibid., Section 5(a)(vii).
29 Telstra Corporation Ltd v. Hornsby Shire Council (2006), 146
LGERA 10.
30 See Gray v. The Minister for Planning and Others, n. 25 above, at
para. 41.
31 Ibid., at para. 45.
32 Ibid., at para. 127.
33 Ibid., at para. 133.
34 Ibid., at para. 72.
35 Ibid., at para. 135.
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be made by any person (including a public authority)
to the Director-General concerning the matter.
There are a number of aspects of this judgment that
require further exposition. The first is that Justice
Pain considered that there is a ‘sufficiently proximate
link’ between the mining of coal, its use in power
stations and the emission of GHGs which contribute
to climate change/global warming.36 Her Honour
rejected the submission of the Director-General that
the use of the coal as fuel occurred only through
voluntary, independent human action, thus breaking
the necessary link between the project and climate
change/global warming.37 Second, Her Honour held
that the fact that there are many contributors to climate
change/global warming does not mean that a single
large contributor, such as the Anvill Hill Project,
should be ignored in the environmental assessment
process.38 In this respect, Justice Pain found that the
approach to environmental assessment required,
once the precautionary prinicple is applied, is the
knowledge of impacts that are cumulative, on going
and long term.39
A third and important aspect of the case is that, given
that the precautionary principle is only triggered in
cases of scientific uncertainty, should it have been
applied given the substantial scientific consensus that
climate change is occurring, and more rapidly than
predicted in the IPCC’s 2007 reports? This issue was
raised in the Telstra case where Preston CJ held that
‘if there is no, or not considerable, scientific uncer-
tainty but there is a threat of serious or irreversible
environmental damage, the precautionary principle
will not apply’.40 Justice Pain makes is clear, however,
that in the present case the scientific uncertainty relates
to the ‘impact’ of climate change/global warming on
biological diversity and ecological integrity.41 Finally,
Her Honour held that the ESD principles do not
require that the GHG issue, including downstream
emissions, override all other considerations. Rather,
the Minister is entitled to decide how to apply these
principles in terms of integrating environmental and
economic decision making.42
Assessing Coal Mines under the Environ-
ment Protection and Biodiversity Conser-
vation Act 1999 (Cth) What is interesting is that
the Anvill Hill coal mine was also the subject of judicial
review under the Environment Protection and Bio-
diversity Conservation Act 1999 (Cth) (EPBCA). Under
this Act, if the federal Commonwealth Minister
declares an activity to be a ‘controlled action’ under
Section 75, then the Minister must decide on the
approach to be used by the Commonwealth to assess
the relevant impacts of the action. An action will only
be declared a ‘controlled action’ if it will have or is
likely to have a significant impact on certain aspects
of the environment. There are a limited number of
issues43 that will ‘trigger’ the Act and the emission of
GHGs is not one of them.44 The Minister’s delegate
decided that the coal mine was not a ‘controlled
action’. In Anvill Hill Project Watch Association Inc.
v. Minister for Environment and Resources,45 the
applicant took issue with the way in which the Minister’s
delegate dealt with questions about the adverse impact
of GHG emissions arising from the proposed mine,
including the extraction, transport and use of the coal, on
matters protected by Part 3 of the Act. For example, it
was argued that the Minister’s delegate failed to take
into account a relevant consideration when assessing
the provisions of Section 75(2) by failing to consider
that the GHG emissions that will result from the coal
mine project will contribute to ‘loss of climatic habitat
caused by anthropogenic emissions of greenhouse
gas’, which is a key threatening process on the list
established under Section 183 of the Act.
In her statement of reasons, the delegate showed that
she accepted that GHG emissions are causing global
climate change which might affect matters protected
by Part 3, such as the Hunter Estuary Wetlands
Ramsar site. However, once she found that if all the coal
produced by the proposed mine was to be consumed
by end users, the combustion of that coal would produce
per annum the equivalent of 0.04% of the current
annual GHG emissions, she concluded that the
emissions were ‘likely to be negligible in the context of
existing emissions’.46 The Court upheld the delegate’s
decision, holding that there was no error in not being
satisfied that the GHG emissions constituted ‘a sig-
nificant impact or the likelihood of one’.47
What is interesting about this decision is that Section
3(1)(b) of the EPBCA states that one of the objects of the
Act is ‘to promote ecologically sustainable development
through the conservation and ecologically sustainable
36 Ibid., at para. 100.
37 Ibid., at para. 97.
38 Ibid., at para. 98.
39 Ibid., at para. 134.
40 See Telstra Corporation Ltd v. Hornsby Shire Council, n. 29
above, at para. 149.
41 See Gray v. The Minister for Planning and Others, n. 25 above, at
para. 134.
42 Ibid., at para. 136.
43 These include ‘significant impacts’ on world and national heritage,
Ramsar wetlands, listed threatened species and communities and
listed migratory species; see the third part of this article.
44 For commentary on this omission, see R. Lyster and A.
Bradbrook, Energy Law and the Environment (Cambridge University
Press, 2006), Chapter 4.
45 Anvill Hill Project Watch Association Inc. v. Minister for Envir-
onment and Resources, [2007] FCA 1480 (20 September 2007),
available at http://www.austlii.edu.au/au/cases/cth/FCA/2007/1480.html.
See also D. Farrier, n. 25 above.
46 Ibid., at para. 27.
47 Ibid., at para. 49 and para. 44.
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use of natural resources’. Although, in setting out
the principles of ESD, the precautionary principle is
expressly mentioned, it was not raised by the applicant
in the judicial review proceedings.
Similarly, in Wildlife Preservation Society of Queensland
Proserpine/Whitsunday Branch Inc. v. Minister for the
Environment and Heritage and Others,48 the decision
not to declare two coal mines in the Bowen Basin
‘controlled actions’ was taken on review. Again it was
argued that the Minister’s delegate did not consider
the adverse impacts of GHG generation and climate
change on matters protected by Part 3 of the EPBCA,
although in this case the applicants focused on impacts
on World Heritage Areas within Australia. In this case,
the applicant did seek to rely on the precautionary
principle.49 However, this was rejected by Dowsett J,
who stated that: ‘[i]t is not clear that this “principle” can
be applied to the decision-making process prescribed
by s. 75. In any event it has not been established that
either project will cause serious or irreversible environ-
mental damage. Mr Flanigan (the delegate) has decided
that there is no likely significant impact’.50 Ultimately,
none of the grounds of review were successful with
Dowsett J holding:
However I am far from satisfied that the burning of coal at
some unidentified place in the world, the production of
greenhouse gases from such combustion, its contribution
towards global warming and the impact of global warming
upon a protected matter, can be so described . . . There
has been no suggestion that the mining, transportation or
burning of coal from either proposed mine would directly
affect any such protected matter, nor was there any attempt
to identify the extent (if any) to which emissions from such
mining, transportation and burning might aggravate the
greenhouse gas problem. The applicant’s case is really
based upon the assertion that greenhouse gas emission is
bad, and that the Australian government should do whatever
it can to stop it including, one assumes, banning new coal
mines in Australia.51
Much has been written about these cases.52 What is
important to understand is: the important distinctions
between the legislation at issue, namely the EPAA
and the EPBCA; the sections in these Acts which the
different courts were required to interpret; and the
grounds of review raised by the applicants. Beyond
this, it is also important to understand the different
approaches adopted by the judges to some of the key
issues that arose, such as ‘causation’ and cumulative
impacts.
The Benefit of an Ecologically Sustainable
Development Jurisprudence In the Gray case,
Justice Pain was asked to consider whether or not the
Director-General ought to regard the environmental
assessment submitted by the proponent as adequate.
In applying the precautionary principle to this question,
Justice Pain had a considerable body of case law, handed
down by the Land and Environmental Court of New
South Wales, to rely upon.53 These decisions led Justice
Pain to state that ‘all decisions under the EPAA Act
require that ESD principles be considered in any
event’.54
The Federal Court of Australia’s consideration of the
precautionary principle is far more limited and not
favourable. In Friends of Hinchinbrook Society Inc. v.
Minister for the Environment,55 Sackville J declined
to accept that the precautionary principle was a
relevant consideration for the Minister for the Envi-
ronment when allowing a substantial development to
proceed in a World Heritage Area. His Honour held
that:
. . . [t]here is nothing to suggest that in 1983 any particular
formulation of the precautionary principle commanded
international approval, let alone endorsement by the
Parliament.56
Justice Sackville’s reference to 1983 is the year in
which the World Heritage Properties Conservation Act
48 Wildlife Preservation Society of Queensland Proserpine/
Whitsunday Branch Inc. v. Minister for the Environment and
Heritage and Others, [2006] FCA 736 (15 June 2006), available at
736.html?query=title(Wildlife%20Preservation%20Society)>. For a
full discussion of this case, see K. Ruddock, ‘The Bowen Basin Coal
Mines Case: Climate Law in the Federal Court’, in T. Bonyhady and
P. Christoff, n. 25 above, at 173.
49 Ibid., at para. 53.
50 Ibid., at para. 54.
51 Ibid., at para. 72.
52 See D.E. Fisher, ‘The Statutory Relevance of Greenhouse Gas
Emissions in Environmental Regulation’, 24:3 Environmental
Planning and Law Journal (2007), 210; J. Peel, ‘The Role of Climate
Change Litigation in Australia’s Response to Global Warming’, 24:2
Environmental and Planning Law Journal (2007), 90; and R. Lyster,
‘Chasing Down the Climate Change Footprint of the Public and Pri-
vate Sectors: Forces Converge’, n. 18 above.
53 Justice Pain specifically referred to Mur rimbidgee Ground-Water
Preservation Association v. Minister for Natural Resources, [2004]
NSWLEC 122, at 128; BGP Properties v. Lake Macquarie Council
(2004), 138 LGERA 237; Bentley v. BGP Properties Pty Ltd (2006), 145
LGERA 243; BT Goldsmith Planning Services Pty Ltd v. Blacktown
City Council, [2005] NSWLEC 210; and Telstra v. Hornsby (2006),
146 LGERA 10. Other Land and Environment Court cases in which
the precautionar y principle has been applied include Davfast Pty
Ltd v. Ballina Shire Council, [2000] NSWLEC 128; Brunsdon v. The
Council of the City of Wagga Wagga, [2003] NSWLEC 168;
Providence Projects Pty Ltd v. Gosford City Council, [2006] NSWLEC
52; and Gales Holding Pty Lt v. Tweed Shire Council, [2006]
NSWLEC 85.
54 See Gray v. The Minister for Planning and Others, n. 25 above, at
para 114.
55 Friends of Hinchinbrook Society Inc. v. Minister for the Envir-
onment, [1997] FCA 55 (14 February 1997).
56 Ibid., at para. 200.
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1983 (Cth) was enacted.57 This decision was referred to
in Booth v. Bosworth,58 where Branson J acknowledged
that the precautionary principle would ‘tend to avoid
the risk to biological diversity and the environment’,
although she found it unnecessary to give the principle
any further consideration in that case.59 Given this
paucity of precedent, it was not surprising that in the
Wildlife Preservation Society case, Dowsett J did not
recognize that the precautionary principle ought to be
applied to all decision making under the EPBCA.
The Acid Tests: ‘Significant Impacts’, Serious
Or Irreversible Damage, Incrementalism and
Proximity In applying the precautionary principle
in the context of the EPAA, Justice Pain was not
required to establish that the Anvill Hill coal mine
would have a ‘significant impact’ on a narrow range of
environmental matters as did the judges of the Federal
Court. All that had to be established in the Gray case
was that the Director-General had failed to take into
account the precautionary principle, which is required
under the EPAA, when deciding that the environmental
assessment report was adequate. There is a great deal
more to this than semantics. As the facts of the Anvill
Hill Project Watch Association indicate, it is all too
easy for the respondent to assert that a 0.4% increase
per annum in global GHG emissions as a result of the
project should not be regarded as a ‘significant’ impact
on matters protected under Part 3 of the EPBCA.
Furthermore, if the argument is made that, in deter-
mining whether or not the impact is ‘significant’, the
decision maker should apply the precautionary principle,
one gets into similar difficulties. One must still be able
to demonstrate that there is ‘a threat of serious or
irreversible environmental damage’. If the evidence
fails to convince a judge that the proposed impact is
‘significant’, and this is what is legally required, it is
unlikely to persuade a judge that the precautionary
principle is a relevant consideration. Even worse,
according to Dowsett J in the Wildlife Preservation
case, no attempt had been made ‘to identify the extent
(if any) to which emissions from such mining, trans-
portation and burning might aggravate the greenhouse
gas problem’.60 The triggers for finding a significant
impact and for applying the precautionary principle
are inextricably linked. What is the way around this
dilemma? Clearly, the first step is to lead expert evidence
of the extent to which a particular coal mining project
contributes to global climate change. Without this, one
fails to reach the starting blocks.
The next challenge is to convince the court that the
precautionary principle is a relevant consideration for
all decision makers approving coal mines because
the concentration of GHGs is ‘cumulative’, as is the
regulatory process. This was accepted by Justice Pain.
The US Supreme Court came to a similar conclusion in
Massachusetts v. EPA,61 where it held that the Envir-
onment Protection Agency (EPA) had jurisdiction to
regulate GHGs under the US Clean Air Act. Here the
EPA had argued that any attempt on its behalf to
regulate GHG emissions from motor vehicles would
contribute so insignificantly to ameliorating global
climate change, and the plaintiff’s associated injuries,
as to not warrant an application for review. The agency
claimed that marginal domestic decreases in GHG
emissions would be offset in light of the projected
escalation in GHG emissions from India and China.
However, the US Supreme Court rejected this argu-
ment, holding that a ‘small incremental step’ by an
agency as part of a longer-term regulatory strategy
was defensible, and even desirable.62 It went on to say
‘[a] reduction in domestic emissions would slow the pace
of global emissions increases, no matter what happens
elsewhere’.63 What Justice Pain accepted is that all
GHG emissions contribute incrementally to global
warming, with the US Supreme Court applying a
similar line of reasoning by holding that incremental
regulatory steps which reduce GHG emissions incre-
mentally are legally justifiable and desirable. Incre-
mentalism is the key issue here.
Finally, the question of proximity must be addressed.
In the Gray case, Justice Pain held that the EPAA is
concerned with ‘controlling development of land to
prevent inappropriate environmental effects. Implicit
in the assessment is that it is the project itself which
causes effects on the environment in a proximate
way’.64 Her Honour went on to find that ‘there is a
sufficiently proximate link between the mining of a
very substantial reserve of thermal coal in NSW . . .
and the emission of GHG which contribute to climate
change/global warming’.65 Attempts by the applicants
to turn this finding into a test of legal ‘causation’ were
57 See R. Lyster, ‘The Relevance of the Precautionary Principle:
Friends of Hinchinbrook Society v. Minister for the Environment’, 14:5
Environmental and Planning Law Journal (1997), 390. Note also
that the World Heritage Properties Conservation Act 1983 (Cth)
was repealed upon the enactment of the Environment Protection
and Biodiversity Conservation Act 1999 (Cth).
58 Booth v. Boswor th [2001] FCA 1453 (17 October 2001).
59 Ibid., at para. 98.
60 See Wildlife Preservation Society of Queensland Proserpine/
Whitsunday Branch Inc. v. Minister for the Environment and Heritage
and Others, n. 48 above, at para. 72.
61 Massachusetts v. EPA, 415 F.3d 50 (D.C. Cir), reh’g en banc
denied, 433 F.3d 66 (2005), cert granted, 126 S. Ct. 2960 (26 June
2006) (No. 05–1120).
62 Ibid., at 21.
63 Ibid., at 23.
64 See Gray v. The Minister for Planning and Others, n. 25 above, at
para. 53.
65 Ibid at para 100.
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unsuccessful in the Federal Court in both the Anvill
Hill66 and Wildlife Preservation Society67 cases.
THE PRECAUTIONARY PRINCIPLE
AND THE GHG FOOTPRINT OF
REDEVELOPMENTS
In Drake Brockman v. Minister for Planning and
Another,68 it was argued that the Minister, in approving
a concept plan for redevelopment of a site,69 failed to
consider ESD, including the precautionary principle and
inter-generational equity. In particular, the applicant
claimed that there was insufficient information about
GHG emissions in connection with the redevelopment
of the site to enable the Minister to carry out a careful
evaluation to avoid serious or irreversible damage to
the environment as a result of the redevelopment; the
Minister failed to treat the proponent as bearing the
onus of proving that the redevelopment of the site
would have no or negligible impacts on climate change;
the Minister did not undertake a risk-weighted assess-
ment of the various options for redevelopment of the
site; and the Minister did not consider alternatives
that could reduce impacts on climate change.
Jagot J held that, to succeed, the applicant would have
to show that the EPAA, by necessary implication,
requires the Minister to consider GHG emissions in a
particular manner and to a particular extent. In the
context of this case, it was contended that the Minister
should consider the total embodied energy involved in
the production and construction of the development
and the total annual operational emissions or the
relative significance of those emissions in the context
of the City of Sydney local government area or more
generally. Jagot J held that the Minister was not so
required and had in fact considered ESD by consider-
ing the Director-General’s report, which included
references to the Building Sustainability Index,
which requires a 40% reduction in GHG emissions in
all new buildings,70 Nationwide House Energy Rating
Scheme (NatHERS),71 Australian Building Greenhouse
Rating Scheme (ABGR) energy performance,72 Green
Star Rating,73 and the high modal split away from
private vehicle use. These would all reduce GHG
emissions.
THE PRECAUTIONARY PRINCIPLE
AND WIND FARMS
In Taralga Landscape Guardians Inc. v. Minister for
Planning and RES Southern Cross Pty Ltd, the Land
and Environment Court of New South Wales, in a
merits appeal,74 had to balance the objections of local
residents to a wind farm proposal against the increasingly
important issue of climate change. Considerations of
climate change triumphed. The objections were initiated
by a group of residents exercising their third party
right of appeal to the Court against the Minister’s
approval under the State Significant Development
provisions of the EPAA.75 The residents claimed that
the construction of 62 wind turbines in close proximity
to their houses would have unacceptable noise, visual
and ecological impacts on the area, including harm to
local flora and fauna.
In approving the proposal, the Court relied on evidence
of the detrimental effects of climate change contained
in reports of the IPCC and the 2006 Stern Review on
the Economics of Climate Change.76 The Court also noted
that Australia’s energy needs have almost doubled
in the past two decades and that projected energy needs
indicate a further increase of 50% before 2020.77
Key to the Court’s decision was the concept of inter-
generational equity, in that the ‘the present generation
should ensure that the health, diversity and productivity
of the environment is maintained or enhanced for the
66 See Anvill Hill Project Watch Association Inc. v. Minister for
Environment and Resources, n. 45 above, at para. 34.
67 See Wildlife Preservation Society of Queensland Proserpine/Whit-
sunday Branch Inc. v. Minister for the Environment and Heritage and
Others, n. 48 above, at para. 57.
68 Drake Brockman v. Minister for Planning and Another, [2007]
NSWLEC 490 (13 August 2007).
69 See Part 3A of the EPAA, n. 26 above.
70 See Building Sustainability Index (BASIX) (undated), available at
basis for BASIX is provided by State Environmental Planning Policy
(Building Sustainability Index: BASIX) 2004 (NSW), available at
and Environmental Planning and Assessment Regulation 2000
(New South Wales), Schedule 1, clause 2A, available at
austlii.edu.au/au/legis/nsw/consol_reg/epaar2000480/sch1.html>.
71 See Nationwide House Energ y Rating Scheme (undated), avail-
able at .au/>.
72 Note that this Scheme has now been rebranded as NABERS Energy;
see NABERS (2008), available at
73 Note that this is a rating tool developed by the Green Building
Council of Australia; see Green Building Council of Australia, Green
Star (undated), available at
what-is-green-star/1539.htm>.
74 Taralga Landscape Guardians Inc. v. Minister for Planning and
RES Southern Cross Pty Ltd, [2007] NSWLEC 59. Note that the
Land and Environment Court has an appeals as well as a review
jurisdiction. For a full discussion of this case, see J. Jones, ‘Global or
Local Interests? The Significance of the Taralga Wind Farm Case’,
in T. Bonyhady and P. Christoff, n. 25 above, at 262.
75 EPAA, n. 26 above, Section 76A(7)(c).
76 See Taralga Landscape Guardians Inc. v. Minister for Planning
and RES Southern Cross Pty Ltd, n. 74 above, at 67–71 and 138.
See also Stern Review Final Report (HM Treasury, 2006), available
at .gov.uk/stern_review_report.htm>.
77 See Taralga Landscape Guardians Inc. v. Minister for Planning
and RES Southern Cross Pty Ltd, ibid., at 72.
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benefit of future generations’.78 (The precautionary
principle was not argued by the applicants.)
In the context of the production of energy this involves
meeting at least two requirements: (1) the mining of
and subsequent use of finite, fossil fuel resources
needs to be sustainable so it may be available to future
generations and to maintain the environment includ-
ing the ecological processes on which life depends,
and (2) as far as practicable, energy sources that pro-
duce high GHG emissions should be replaced with
energy sources that produce lower GHG emissions,
thereby reducing the long-term and cumulative effects
of anthropogenic climate change.79
The Court held that the visual impact of the wind
farms did not outweigh the need to develop renewable
energy sources in the area. It did, however, impose a
number of conditions on the proposal. In the prologue
to his judgment, Chief Justice Preston stated that ‘the
Court’s role has enabled the inclusion of a range of
conditions founded on the precautionary principle.
These include, for example, new conditions to ensure
measures are available to deal with occurrences of
threatened flora or grasslands if they are subsequently
discovered during construction of the windfarm’.80
The Court stated that the development must comply
with noise guidelines, and where it could not, it must
pay for sufficient noise insulation. The court held that
there would be minimal impact on local flora and
fauna but where there was an impact on local wedge-
tail eagles, the developer must pay compensation to
the Wildlife Rescue Service for each eagle killed as a
result of the wind farm. Two properties were considered
to have unacceptable impacts from the development
and the Court required the proponent to purchase
these properties (should their owners elect to sell).81
As Preston CJ stated, ‘[a]lthough the Guardians will
be disappointed by the Court’s decision, their launching
of an appeal and the Court’s hearing and determina-
tion of it have made the development a significantly
more environmentally responsible project than that
originally approved’.82
THE PRECAUTIONARY
PRINCIPLE AND URANIUM
MINING: WHAT ROLE?
In recent times, nuclear energy has come to be
regarded by many as a sustainable form of energy
given its low GHG emission profile compared with
coal-fired power stations. Although nuclear energy
is presently not, and is not proposed to be, part of
Australia’s energy mix83 under the Rudd Commonwealth
Government, Australia exports a significant amount of
uranium.84 Consequently, Australia is implicated in the
nuclear fuel cycle of many other countries. Australian
uranium exports are regulated under both Federal and
State regulatory regimes governing: the environmental
assessment of uranium mining and milling; anti-
nuclear proliferation; nuclear safety; and export
licence requirements. With increased global interest in
nuclear energy, a number of recent government
reports have reviewed the potential of Australian
uranium to supply global needs for uranium on the
basis that nuclear energy is regarded as a lower source
of GHG emissions.85 Although they called for a better
integration of required authorizations under Federal
and State laws, these reports failed to analyse the role
that the precautionary principle plays in the environ-
mental assessment, and authorization, of Australian
uranium mining projects.
There are two different approaches to the mining of
uranium ore. These two approaches are:
• extraction, or often referred to as ‘winning’, where
the uranium ore is extracted from the Earth using
an excavation process, in much the same manner
as open-cut coal mining; and
• in-situ leaching (ISL), whereby an acidic solvent
solution is injected underground that dissolves the
uranium ore into a solution that is recovered
through wells.
Both approaches involve milling in which the
extracted or leached uranium ore may be physically
processed then chemically treated to extract and
purify the uranium. The milled product is called
uranium oxide (U3O8), or often referred to as ‘yellow
78 Ibid., at 73.
79 Ibid., at 74.
80 Ibid., at 5.
81 Ibid., at 157.
82 Ibid., at 4.
83 See S. Mascher, ‘Too Hot to Handle?: Uranium and Nuclear
Power in Australia’s Energy Mix’, 26:3 Australian Resources and
Energy Law (2007), 330.
84 According to Year Book Australia 2006 (Australia Bureau of
Statistics, 2006), during 2005–2006, Australia exported a total
of 12,637 PJ of energy products. In terms of energy content of
exported material, the largest contributors were black coal (52%)
and uranium (38%).
85 Commonwealth of Australia 2006, Australia’s Uranium –
Greenhouse Friendly Fuel for an Energy Hungry World: A Case Study
into the Strategic Importance of Australia’s Uranium Resources for
the Inquiry into Developing Australia’s Non-Fossil Fuel Energy
Industry, House of Representatives, Standing Committee on
Industry and Resources (November 2006); Commonwealth of
Australia 2006, Uranium Mining, Processing and Nuclear Energy –
Opportunities for Australia?, Report to the Prime Minister by the
Uranium Mining, Processing and Nuclear Energy Review Taskforce
(December 2006); and Commonwealth of Australia 2006, Uranium
Industry Framework, Report of the Uranium Industry Framework
Steering Group (September 2006), at 36–39.
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cake’ due to its colour and consistency. After drying,
the uranium oxide is packed into 200 litre drums for
export.
Of the two approaches, ISL is the more contentious
approach because of the potential of environmental
harm from:
• groundwater contamination;86
• spills by acidic or uranium solutions, with the
South Australian Environment Protection Authority
in 2002 investigating 20 spills of varying size at
the Beverley Uranium Mine, with most of the spills
minor (less than 100 litres) and 2 spills of over
10,000 litres;87
• contamination of land by uranium;
• pollution as a result of generation of on-site waste,
such as low-level radioactive waste, and the remote-
ness of uranium mining activities from recycling or
resource recovery/landfill sites; and
• contamination from disposal of liquid wastes by
re-injection.88
Although it has not yet been proven, it is reported that
natural degradation of the disposed liquid wastes
would return the water chemistry of these wastes to
pre-mining conditions within a timeframe of over
several years to decades.89 The Commonwealth Scien-
tific and Industrial Research Organization (CSIRO)
has recommended that acid ISL mining of uranium and
re-injection of liquid wastes into the aquifer be allowed
to continue, subject to monitoring demonstrating that
there is no excursion of leach solution or waste liquids
into other aquifers.90
The mining of uranium in Australia is governed
under the ‘nuclear action’ provisions of the EPBCA.91
Nuclear action, including uranium ore mining and
milling,92 is prohibited if it has, will have or is likely to
have a significant impact on the environment. It can
only be undertaken with the approval of the Minister
who must decide on the appropriate assessment
approach.93
THE BEVERLEY URANIUM MINE
EXPANSION
The only operating ISL uranium mine in Australia is
the Beverley Uranium Mine.94 Another ISL mine is
expected to commence operation in 2009, being the
Honeymoon Uranium Mine.95 On 28 August 2008,
the Federal Minister for the Environment gave an
approval under the EPBCA96 for the Beverley Uranium
Mine to expand its operations to include the Four Mile
Mining Lease Application which is located around 600
km north of Adelaide in South Australia, around 8 km
west of the existing Beverley Uranium Mine. The
approval permits mining of the Four Mile uranium ore
deposits by ISL using the existing Beverley Uranium
Mine infrastructure and workforce for processing the
product, and also permits the extension of the Beverley
operations.97 As this approval is recent and as its envir-
onmental assessment was carried out jointly by the
federal and South Australian government, it is a useful
case study for comparing uranium mining with coal
mining in Australia and for analysing whether the
precautionary principle plays any greater role in
approving uranium mines than coal mines under the
EPBCA.
On 12 December 2007, the Federal Department of the
Environment Heritage Water and the Arts and the
South Australian Primary Industries and Resources
issued a joint guideline for the preparation of a Public
Environment Report (PER).98 This guideline neither
specifically referred to ESD nor the precautionary
principle.99 However, it did stipulate that the purpose
of the PER was as follows:
The purpose of the PER or Mining Lease Proposal (hereafter
referred to as the Proposal) is to facilitate consultation
86 See, e.g., G. Mudd, An Environmental Critique of In Situ Leach
Mining: The Case Against Uranium Solution Mining, A Research Report
for Friends of the Earth (Fitzroy) with The Australian Conservation
Foundation (Victoria University of Technology, July 1998).
87 Government of South Australia, Environment Protection Authority
South Australia, Report on Activities and Operations at Beverley ISL
Mine (Government of South Australia, May 2002), at 7.
88 CSIRO Land and Water, Review of Environmental Impacts of the
Acid In-situ Leach Uranium Mining Process (CSIRO, August 2004),
at III.
89 Ibid.
90 Ibid., at 46.
91 See Environment Protection and Biodiversity Conservation Act
1999 (Commonwealth) (EPBCA), Sections 21–22A, available at
92 Ibid., Section 22(1)(d).
93 Ibid., Section 87.
94 Heathgate Resources, an affiliate of General Atomics, operates the
Beverley Uranium Mine; see Heathgate Resources (undated), available
at cid=1>.
95 Q3 2008 Management Discussion and Analysis (UraniumOne,
November 2008) at 14, available at
uploads/report/Uranium%20One%20interim%20MDA%202008%
20Q3.pdf>.
96 The Hon Peter Garrett AM MP, Federal Minister for the Envir-
onment, Heritage and the Arts, ‘Beverley Uranium Mine expansion’
(Press Release, 28 August 2008).
97 Ibid.
98 Federal Department of the Environment Heritage Water and the
Arts and the South Australian Primary Industries and Resources,
Guidelines for Preparation of a Public Environment Report (PER)
under the Commonwealth Government’s Environment Protection
Biodiversity Conservation Act 1999 and a Lease Proposal and Mining
and Rehabilitation Program (MARP) under the South Australian Mining
Act 1971 (Australian Government, December 2007) (the Guideline).
Note that this Guideline may be regarded as a ‘tailored guideline’
issued under Section 97 of the EPBCA since the action is taking place
in the State of South Australia; see EPBCA, n. 93 above, Section
97(3).
99 Neither ESD nor the precautionary principle is found in the Mining
Act 1971 (SA), available at
consol_act/ma197181/>.
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across a wide stakeholder base to identify the risks inherent
in the Proposal, and propose a set of credible outcomes that
are likely to be acceptable to the majority of stakeholders,
and at least demonstrate a net public benefit if the Proposal
were to proceed. The focus of the assessments under the
EPBC Act and Mining Act will be to ensure appropriate
environmental outcomes are developed, and these will form
the basis of the approval conditions under the EPBC Act
and mining lease.100
The emphasis in the guideline is on a risk-performance
based process.101 As to whether this risk-performance
based process addresses the precautionary principle,
one needs to determine:
• whether the risk-performance based process provided
in the guideline for the PER adequately addresses
the precautionary principle, and
• whether the Beverley Mine Mining and Rehabilita-
tion Programme102 (MARP), submitted to satisfy the
requirements of the PER, amongst other regulatory
requirements, properly identifies and addresses
threats of serious and irreversible environmental
damage as required by the operation of the precau-
tionary principle.103
Again, the MARP does not directly refer to ESD nor
the precautionary principle. As expected, because the
MARP addresses the requirements of the PER, it
adopts a risk-performance approach which identifies
seven areas of environmental risks:
• soils;
• vegetation;
• surface water;
• hydrogeology;
• fauna;
• air quality; and
• heritage.104
The MARP identified that the risk was ‘high’ for chemical
and radiological contamination of soil and watercourse
sediments that would prevent its return to pastoral
use arising from:
• seepage from water management ponds through
construction defects, wear and tear and accidental
damage;
• pond overflows of mining solutions and waste dis-
posal solution due to high rainfall events or control
system failure; and
• the escape of mining solution due to accidental
breakages of piping from poor welds, vehicle damage
or pipe defects.105
Measures proposed to address contamination of soil
and watercourse sediments include pressure testing of
pipes and continuous flow monitoring. The MARP
concluded that the residual risk was ‘low’ on the basis
that the likelihood was ‘low’ and that the consequence
was ‘minor’. Similar risk identification and residual
risk assessments follow in the MARP for the other areas
of risk.
EFFECT OF NOT APPLYING THE
PRECAUTIONARY PRINCIPLE TO
THE PER AND MARP
Arguably, the omission of the precautionary principle
from the PER and MARP is inconsequential since the
risk-performance approach adopted in these documents,
in terms of assessing the identified risks (or threats)
on the basis of their likelihood and consequence, goes
further than the precautionary principle’s requirement
to identify ‘measures to prevent environmental de-
gradation’.106 It is difficult to speculate hypothetically
about which measures a decision maker, applying the
precautionary principle, might impose on a proponent,
or be required to impose by a reviewing court.
However, what if an applicant were to challenge the
failure of the Commonwealth Minister to apply the
precautionary principle in this instance? In the first
place, an applicant might argue that the Minister
failed to apply the precautionary principle to a uranium
mining activity by selecting a PER process under the
EPBCA, rather than an assessment by environmental
impact.107 The requirements to prepare an environmental
assessment impact statement are more onerous than
those of a PER.108
Or the MARP might be challenged for failing to
mention the precautionary principle as the principle
guiding the measures identified in the MARP. These are
sound challenges given that ESD and the precautionary
100 See the Guideline, n. 98 above, at 6.
101 Ibid., at 8.
102 Beverley Mine Mining and Rehabilitation Programme (Heathgate
Resources Pty Ltd, November 2008).
103 See the Guideline, n. 98 above, Part 3.5 (Environmental
Assessment).
104 Ibid., at 76.
105 Ibid., at 77.
106 See Rio Declaration, n. 5 above, Principle 15.
107 See EPBCA, n. 91 above, Section 87(1)(d).
108 Essentially, once the Minister has decided that an action is a
‘controlled action’ he must decide on an assessment approach,
which ranges from the least to the most onerous assessment
process for the proponent. The approaches are assessment by an
accredited assessment process; assessment on referral information
under Division 3A; assessment on preliminary documentation under
Division 4; assessment by public environment report under Division
5; assessment by environmental impact statement under Division 6;
and finally, assessment by inquiry under Division 7. See ibid., Sec-
tion 87.
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principle are objects of the EPBCA and given the threats
posed by uranium mining to human health and the
environment.
Unfortunately, as the case law discussed above has
demonstrated, an applicant would find it difficult
to convince the Federal Court of Australia that the
Commonwealth Minister was required to apply the
precautionary principle to uranium mining activities.
No applicant has been successful in this regard to
date. It might be possible, however, to distinguish the
coal mining cases from uranium mining if the Court
were to accept that the mining of uranium has a direct
and measurable impact on the environment which is
‘significant’, unlike GHG emissions consequent upon
coal mining.
Could the Guideline and MARP be challenged under
the Mining Act 1971 (SA)109 for failure to take into
account the precautionary principle? This is question-
able given that the Act does not include any reference
to the precautionary principle. However, it is worth
noting that the Supreme Court of South Australia held
in Rowe v. Lindner110 that the precautionary principle
must be applied to decisions under the Natural
Resources Management Act 2004 (SA)111 since that Act
referred to the principle, but that this did not mean
that it was inapplicable to the Development Act 1993
(SA),112 which was also implicated in the decision
under review. The Development Act does not refer to
the precautionary principle.
CONCLUSIONS
The international instruments referred to at the begin-
ning of this article make it clear that the precautionary
principle is inextricably linked with the development
of a body of energy and climate law that is ecologically
sustainable. In Australia, the precautionary principle
has been included in the objects clause of important
environmental planning and assessment legislation
such as the EPBA and the EPAA. Yet what this analysis
has shown is that the precautionary principle is not
given equal treatment by the courts and tribunals
where decisions made under this legislation are being
challenged, either by way of a merits appeal or judicial
review. It is clear that, since Telstra Corporation Ltd v.
Hornsby Shire Council,113 the precautionary principle is
now regarded by the Land and Environment Court of
New South Wales as a mandatory relevant consideration
in the context of development applications where the
‘public interest’ must be considered. Even so, in applying
the precautionary principle, judges in that jurisdiction
might differ as to the obligations which the principle
imposes on the decision maker, as is evident in the
Gray114 and Drake-Brockman115 cases. Furthermore,
as the analysis of the case law offered in this article
demonstrates, the Federal Court of Australia has been
reluctant to regard the precautionary principle as a
mandatory relevant consideration. Given this, it can truly
be said that the precautionary principle has taken a
thrill ride on the roller coaster of energy and climate
law in Australia. There is really no certainty that the
precautionary principle will be applied consistently by
Australian courts to determine the legal responsibilities
of decision makers assessing energy projects.
Associate Professor Rosemary Lyster is the Director of
the Australian Centre for Climate and Environmental Law,
University of Sydney. She is also a Legal Consultant to
Mallesons Stephen Jaques.
Eric Coonan, who contributed to the discussion on
uranium mining, is a Ph.D. candidate in the Faculty of
Law, University of Sydney.
109 See Mining Act 1971 (South Australia), available at
austlii.edu.au/au/legis/sa/consol_act/ma197181/>.
110 Rowe v. Lindner, (2006) LGERA 100.
111 Natural Resources Management Act 2004 (South Australia),
available at
nrma2004298/>.
112 Development Act 1993 (South Australia), available at
austlii.edu.au/au/legis/sa/consol_act/da1993141/>.
113 See Telstra Corporation Ltd v. Hornsby Shire Council, n. 29 above.
114 See Gray v. The Minister for Planning and Others, n. 25 above.
115 See Drake Brockman v. Minister for Planning and Another, n. 68
above.
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