Case brought by group from Hunter Valley town, which it says has been devastated by Peabody Energy’s Wilpinjong mine

In what is described as a landmark case, a New South Wales court will be asked to overturn a decision to extend the life of a coalmine on the grounds the state government failed to properly consider the impact on the climate.



The case is brought by a community group from the tiny Hunter Valley village of Wollar, which it says has been devastated by the development and gradual expansion of the Wilpinjong coalmine over the past decade.

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Mine owner Peabody Energy won approval last April to further expand the mine, which sits between the towns of Mudgee and Denman, to extend its life by seven years to 2033.

In a case starting on Thursday, the Wollar Progress Association will argue the decision was unlawful as it did not properly consider the impact of the increased greenhouse gas emissions, including “downstream” emissions when the coal is burned in NSW and overseas power plants.



It says the state also did not look at whether the extension was in step with state and national climate change policies and targets, including Australia’s commitment under the 2015 Paris agreement to keep warming below 2C.

Lawyer David Morris, from the Environmental Defenders Office NSW, said the association would argue 2007 legislation covering extractive industries was explicitly designed to ensure these two points were considered before decisions were made on whether projects could go ahead.

“What is the point of commitments and targets if they are not factored into and reflected in decisions about projects which contribute to emissions?” he said.

“We say it is a landmark case. When you think about a coalmine in 2017, it is difficult to think of a more important consideration than its contribution to climate change.”

The secretary of the Wollar Progress Association, Bev Smiles, said the mine had gradually grown from approval in 2006 to mine 9.5m tonnes a year to the current 13m tonnes. She said the proposed expansion would bring it to within 1.5 kilometres of the village.

She said many landholders had sold to the company, and the population had fallen from about 300 to 70.

“The impact from noise, dust and blasting has been extreme,” she said. “What happens under government processes is we are left to our own devices up against people who have a lot more resources than we have, and the treatment of people over time by this company has been quite disgraceful.”

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A spokeswoman for Peabody Energy said the company had been through a comprehensive process and the case related to the approval process by the state’s Planning Assessment Commission, not the merits of the extension project. She said the mine generated jobs and invested in the Mudgee region, employing 413 people.

Peabody Energy is also applying for an exploration licence over more than 1,600 hectares of land east of Wollar.

The case starts in the land and environment court on Thursday. The planning minister, Anthony Roberts, declined to comment while the issue was before the court.

Separately, Smiles and two others will be in Mudgee local court on Friday facing charges relating to a protest at the mine last April.

While the case is believed to be the first time a mine approval has been been contested over its climate impact under the 2007 NSW law, at least one decision has been challenged on similar grounds under federal legislation. In 2016, the federal court dismissed a case brought by the Australian Conservation Foundation (ACF) against the federal government’s approval of Adani’s Carmichael mega-coalmine.

The ACF argued the mine’s approval was inconsistent with the country’s obligations to protect the world heritage values of the Great Barrier Reef. The court found the then environment minister Greg Hunt had considered the impact of the emissions from burning the coal on the reef, and that Australia had latitude under the World Heritage Convention as to how it carried out its obligations.