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The full bench of the Federal Court has unanimously found Environment Minister Tanya Plibersek has no legal requirement to assess the impacts of climate change when approving new coal and gas mines.

However, in joint findings, Chief Justice Debra Mortimer and Justice Craig Colvin found the case underscored the limits of the Environment Protection and Biodiversity Conservation (EPBC) Act in assessing environmental harms.

“Notwithstanding our conclusions on the grounds of appeal, the arguments on this appeal do underscore the ill-suitedness of the present legislative scheme of the EPBC Act to the assessment of environmental threats such as climate change and global warming and their impacts on MNES [matters of national environmental signficance] in Australia.”

Federal Environment Minister Tanya Plibersek.

Federal Environment Minister Tanya Plibersek.Credit: Alex Ellinghausen

“This proceeding, and the merits decision-making underlying it, might be said to raise the question whether the legislative scheme is fit for purpose in this respect.”

A legal challenge brought on behalf of 26-year-old Ashleigh Wyles, originally from the Queensland town of Mackay, had sought to force Plibersek to reconsider the approval of 19 coal and gas mines, including the Narrabri and Mount Pleasant coal mine expansions.

The case, led by the Environment Council of Central Queensland and represented in court by Environmental Justice Australia, challenged Plibersek’s refusal to scrutinise new coal and gas projects on the basis of their climate harm.

Narrabri Coal Operations (a subsidiary of Whitehaven Coal) and MACH Energy, joined Plibersek in defending the proceedings.

In October, Federal Court Judge Justice Shaun McElwaine dismissed the climate challenge, and the Environment Council of Central Queensland appealed the judgment.

But in a brief hearing in the Federal Court of Australia on Thursday, Justice Craig Colvin – on behalf of the full bench – dismissed the appeal.

He ordered the parties to try to reach agreement on costs by May 30 and, if they could not, to file submissions on costs by June 13.

Outside court, Wyles pronounced herself devastated, while her partner Merinda Bathe struggled to hold back tears.

“We fear this will open the floodgates for the Minister to now approve dozens of new coal and gas projects on her desk,” Wyles said.

“As the Environment Minister, her one job is to protect our environment. But instead of standing up to fossil fuel companies we saw her stand alongside them in court and defend her refusal to act on the climate harm of new coal and gas.”

Asked whether she would consider further appeals to the judgment, Wyles said the team would now consider its options.

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