New coal mines in NSW, or those seeking to expand operations, could be compelled to offset their greenhouse gas emissions if a landmark court case is successful.
In the first case of its kind, the NSW Land and Environment Court indicated last November that the expansion of an open cut coal mine near Mudgee may only be granted if it offsets its direct emissions.
The matter returns to court in Sydney on Friday.
If it expands, the Ulan Coal mine, a joint venture between Xstrata Coal and Mitsubishi Development, is expected to pump out approximately 575 million tonnes of carbon dioxide over its 20 year life span, according to a submission by the Environmental Defender’s Office.
Of this, direct emissions – or scope one emissions – are expected to produce an average of more than 100,000 tonnes of carbon dioxide per year, sustainability consultant David Blyth told the court.
In a decision handed down on November 24, the court said that although forcing a mine to offset these emissions was the “first such condition imposed on a coal mine in NSW” it was not “necessarily discriminatory.”
“As other operating coal mines seek approval to modify or extend their operations, or new coal mines are opened, it would be open to the consent authority which may be the (planning) Minister, to impose a similar condition,” Justice Nicola Pain said in her decision.
She said approval should “in principle” be granted to the project, “subject to conditions”.
These conditions are to be discussed in Sydney on Friday by both parties before they are finalised.
Principal Solicitor Kirsty Ruddock from the Environmental Defender’s Office said the case could have wide-ranging ramifications for future coal and coal seam gas projects in the state.
“It will set a precedent … if this happens, that other communities could argue, in particular circumstances, that scope one emissions should be offset,” Ms Ruddock told AAP.
“There are 20 or 30 mines sitting on the books in NSW to be approved in the next year.
“It will certainly impact on those.”
Ulan has argued that making them offset their greenhouse gas emissions would be unfair.
“The conditions are discriminatory, not being imposed on any other coal mines in NSW,” the court heard.
Meanwhile the NSW Department of Planning argued in its submission that the proposed conditions pre-empted the Federal Government’s carbon reduction scheme.
“The proposed conditions pre-empt the imposition of a national policy, and in a manner that would be anomalous to the way that the structure of the international climate change regime was set up,” the court heard.
However, Ms Pain said “no such system is yet to operate in Australia or NSW and this approval is sought now”.