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?