‘Triply nervous’: Massive coal mine braced for challenge after High Court ruling

The decision to allow a massive NSW coal mine to run until 2045 will be fought in court, legal experts predict, after the High Court struck down a separate approval for failing to grapple with the climate impact of Australian coal being burned in foreign power plants.

Lawyers for the HVO mega-project in the Hunter Valley - described as a “carbon bomb” by environmental campaigners due to the vast emissions it will unlock over its 19-year lifespan - are bracing for a challenge to last month’s approval decision.

But Premier Chris Minns is continuing to stare down calls from One Nation and the Coalition to pass new laws that would bar planning authorities from considering the climate impact of Australian coal burned abroad.

The High Court on Wednesday invalidated an approval to extend and expand the Mount Pleasant coal mine, which sits not far from its Hunter Valley competitor HVO.

“If I were the operator of the HVO mine, I’d be preparing for lawyers to knock on my door and issue me a writ appealing the decision,” Lily O’Neill, a senior research fellow at the University of Melbourne Law School, said.

HVO, which is co-owned by the resources giants Yancoal and Glencore, is expected to produce 800 million tonnes of climate-warming emissions over the next two decades. About 98 per cent of that would be from the transportation and end use of coal overseas, the Independent Planning Commission accepted .

O’Neill said HVO should be “triply nervous” about a challenge following the High Court ruling. The approval decision may be vulnerable because the commission failed to quantify the economic damage from greenhouse gases released in export countries, known as scope 3 emissions, she said.

The commission argued there was no reliable way of accounting for the costs to NSW, while pointing to local economic benefits such as jobs and tax revenue.

HVO won its extension approval a week before the High Court ruled in the Mount Pleasant case that planning authorities must consider all types of emissions when deciding whether to impose conditions on mine approvals.

Justice Michelle Gordon, a member of the majority in the 3-2 split decision, concluded it was wrong to push aside one category of greenhouse gases.

“The impact of greenhouse gas emissions is the same, regardless of how they are categorised,” Gordon wrote in an individual judgment. Justice James Edelman said the commission appeared to have been “distracted” by the different categories.

The Mount Pleasant mine owner, MACH Energy Australia, must now defend its project before the Land and Environment Court.

HVO’s legal team is concerned the mine’s opponents will seize on the High Court ruling to exploit any legal opportunity to force the controversial project back to court, according to a source familiar with the HVO legal team’s position.

“There is some degree of hope that [the court’s ruling] is specific to the situation MACH Energy found itself in, but there is no complacency,” said the source, who was not authorised to speak publicly.