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Last week, the senior judge in the NSW Land and Environment Court, Mr Justice Brian Preston (left), rejected the Rocky Hill coal mine’s application to operate for a number of reasons, one of them being “to meet generally agreed climate targets” for a “rapid and deep decrease” in emissions. The case against the mine was run by the activist Environmental Defenders Office NSW, which is funded in part by the state government and at which Preston once served as the founding principal solicitor.
Mr Preston was appointed to the leading legal role in the Land and Environment Court by Labor attorney-general Bob Debus in 2005. Debus said he was impressed by his record as an environmental activist when appointing him to the job.
Upon being elevated to the bench, Mr Preston talked about how the “pressing challenge facing the court now is to engage with and to explicate emerging international concepts and principles.” He further said,
The best illustration of an international concept that has taken root locally is that of ‘ecologically sustainable development’ (ESD). The ESD principles are hortatory but lack precision. The challenge is to articulate mechanisms for translating these laudable principles into specific actions. The court has a role to play in this task. The court has begun the task in a few cases but more work still needs to be done.
Many would note Mr Preston’s background and surmise he was predisposed to the forbid the mine’s development. They might observe, for example, that he could have rejected the planning application simply by citing local opposition, which his decision notes at some length, but he chose also to embark upon a lawmaking excursion by citing global warming in his reasoning. Coming from the senior judge in the court this must set a precedent for others to follow. It has certainly been seen that way by observers, many of them ardent believers and publicists for the notion that climatic catastrophe is imminent.
In the judgment, Mr Preston cites several authorities, including the 2017 paper in Nature, “Three years to safeguard our climate”, co-authored by diplomat and ex-head of the Climate Change Convention Christiana Figueres, as well as referencing the IPCC report itself.
Being open-minded and impartial, as his tenure as a judge requires, we can take for granted that Mr Preston also have read works, though he does not cite them, by world-renowned scientific experts such as Richard Lindzen, Judith Curry, Nils-Axel Morner and Roy Spencer in order to form a considered judgement. That wider reading did not figure in his published opinion.
In banning a new coal mine, Mr Preston sees himself as making a start in reversing global warming. Preventing Rocky Hill – even on the unrealistic assumption that no other mine replaces its output — puts a 0.6 per cent dint in coal production in Australia or 0.025% for the world as a whole.
Some would argue that this is a start to be built upon, as Mr Preston would surely have little difficulty in bringing to bear the logic of his ruling on other applications that might come before the courts.
Thus, to engage in speculation, an application to build a new freeway would need to be rejected, since the objective is to facilitate vehicular traffic with the associated increase in emissions. Similar considerations would pertain to any application to build or extend an airport, as aeroplanes burn fuel and strew greenhouse emissions about the stratosphere. And those abiding by Mr Preston’s frame of reference would warmly receive calls (already being made in some quarters) for preventing land use to allow more cud-chewing animals with their methane bi-products. Any chance of a planning application to construct a new building? Perhaps not, given that such a project would necessitate steel and concrete, which each involve emissions of greenhouse gases.
A widespread application of the decision’s logic would paralyse the nation and gradually take us back to a less-than-idyllic pre-modern life where we travel by foot, sailcloth and horse, warm our homes with firewood and substitute the technology of threshing floors and flails for combine harvesters. In short, it would take us to a state of poverty as extreme as that prevailing in any of the world’s most benighted nations you might care to mention. Of course, no green activist would tolerate such a diminution of their own living standards.
Meanwhile, who’s for a wind-powered jetliner jaunt to, say, Brazil, the Shangri-La Mactan Resort in the Philippines, New Zealand , Oslo, Singapore , Indonesia, Tokyo, Thailand, Spain, Boston, China, New Zealand again, Japan revisited, Bangkok, Vancouver, New Delhi, Singapore reprised, Wellington, Christchurch, Hong Kong, Trinidad and Tobago, Wellington redux, Kenya and many more interesting destinations with, presumably, nice sheets and adequate room service?
There are distressed calls for this idiocy to be appealed. Appealable it is, up to the High Court. If the Court felt inclined to hear it.
And there’s the rub. I have no inside knowledge of Rocky Hill’s owner Hans Mende’s views here ( I have had no professional contact for decades) so this comment is speculation based on long experience.
Hans will, I think, be under immense pressure from all angles to NOT appeal: Govt (State and Federal), judiciary (State and High Court), other miners, bureaucracies, various scientific bodies, green blobs from universities, virtue-signalling corporations and banks – none want the issue of rigorous scientific auditing of AGW played out, debated, in public. *We do not debate in public*, or deplatforming, is the crie de jour. Mark Steyn has been waiting about 5 years now for the US judiciary to stop sitting on its’ hands. Peter Ridd (ex James Cook Uni) had his listed court case suddenly “de-judged” (ie. an assigned judge was summarily unassigned) with no replacement, no date in sight … this disgraceful list grows constantly.
How may someone who is peeved enough to want to appeal be persuaded otherwise ? Endless court delays from all directions, sudden bureaucratic questioning about existing licences and operations, endless dishonest attention from the meeja, closed door pleas for quiescence from other enterprises … there are many avenues, all of which are quietly being enacted now.
There is also the nuclear option. The Crown in the form of State Govts own the mineral deposits (exceptions are the two Territories and submarine deposits from the low tide mark to international marine boundaries – the Feds own these deposits). Exploration and mining licences, while legally granted by the State Govt, are held at the Minister’s pleasure. There is more than enough precedent for these licences to be removed at the Minister’s displeasure (a long running example in NSW is extant).
A formidable phalanx of resistance to any appeal. Add to this the inclusion in this Rocky Hill decision of the *Paris Agreement*. International brouhahas take de facto precedence over our common law, and I suspect even over the Constitution. I’m sure lawyers will take exception to this statement, but the proof will be in the eating, not the rhetoric.
This is indeed a tipping point. Australia used to be a good place to live.
Not having read the judgment, I would be interested to know if the judge thouht it up himself or if the issue was raised in evidence. At this stage it sounds as if he decided to take judicial notice of something that is open to dispute without hearing the other side and if so that is grounds for appeal alone.
Effect of Australian Green policies on the climate insignificant.
Effect of Green policies on the Australian economy catastrophic.
Elites, public office holders, public servants, Organizations at the trough of Green subsidies need not be concerned.
The rest of us especially those on fixed incomes should be very afraid.
Twelve generations ago, Judges, advised by some theologians, ordered the Burning at the Stake, of 100,000 Witches at the Stake, in Europe and America during a reign of Superstition and Terror lasting 50 years.
The latest epidemic of mass hysteria is called global warming, and by my estimate it still has 20 years to run. Tony Abbott tried to stop it prematurely, and we all saw how that went.
A typical Aus Sunday (lowest demad in the week), last Sunday February 10:
https://papundits.files.wordpress.com/2019/02/021011totalwindsolarplant.jpg
Perhaps the good judge found the following ex-head of the Climate Change Convention Christiana Figueres’ authoritarian quote relevant:
” Those corporations that continue to invest in new fossil fuel exploration, new fossil fuel exploitation, are really in flagrant breach of their fiduciary duty because the science is abundantly clear that this is something we can no longer do.” Cited in Tim Flannery, Atmosphere of Hope. Solutions to the Climate Crisis, Penguin Books, 2015, pages 123-124 ISBN 9780141981048 referenced in https://en.wikiquote.org/wiki/Christiana_Figueres
Oz is dying by a thousand small cuts.
Our demise is now well advanced and unlikely to be reversed until a more vigorous and practical Chinese culture takes over and sweeps away the decay. In a delicious irony the first to go will be the useful idiots who long for totalitarianism to take over. The decline has happened imperceptibly, one cut at a time.
Back in the 1980’s I was an executive at a huge Australian corporation. In a new position I inherited a Court Case in which a foreign firm was suing us because they had been excluded from a tender on the grounds that their product did not meet the standard we required. Their argument was that the Australian Standard had been set at a higher level than the equivalent International Standard and therefore favoured the two Australian companies that had designed products to the AS.
I smiled at the stupidity of their claim, although our high-priced lawyers tried to convince me it was a tough case requiring lots of fees.
An Australian judge ruled that as Oz had signed up to GATT (from memory) we could no longer set our own standards but had to comply with lower internationally set levels where they existed. In our appeal, we pointed out that there were both safety and compatibility issues – but we lost that case too.
At the time, I was shocked at this loss of sovereignty, but did not join the dots and realize where the path lead. I do now, so have moved overseas to a sane country.