A fresh legal challenge could be brewing for Adani’s planned Carmichael coalmine. New advice has found the federal environment minister’s approval of the mine may have been unlawful in light of new scientific evidence of its impacts on the endangered black-throated finch.
As a result, the Australian Conservation Foundation (ACF) has asked the federal minister for the environment and energy, Josh Frydenberg, revoke the approval and ask Adani to resubmit its plans for consideration.
The Environmental Protection and Biodiversity Conservation (EPBC) Act says the minister must not act inconsistently with any official national recovery plan for an endangered species when approving a development. In addition, one of the conditions on the approval of Adani’s mine specifically stated that the company’s management strategies must be consistent with the recovery plan for the black-throated finch.
But according to legal advice given to the ACF by the Environmental Defenders Office (EDO) Queensland, new scientific evidence shows the approval of the mine by the former environment minister Greg Hunt was inconsistent with the recovery plan.
Fresh from a separate unsuccessful federal court challenge of the mine’s approval, ACF spokeswoman Basha Stasak said the group is now weighing up its legal options – and wouldn’t rule out the possibility of another court challenge.
“What’s being revealed here is the offset plan being put by Adani – according to the experts – is completely inadequate and we have serious concerns about that,” she said.
Adani’s Carmichael mine will destroy some of the most important remaining habitat for the endangered black throated finch. As a result, Adani has been required to create “offsets,” which are supposed to provide alternative habitats for the birds.
The legal issue arose after a team experts – the Black-Throated Finch Recovery Team – obtained Adani’s plans for managing the birds, including plans for offsets, under freedom of information laws.
They found the company’s plans would result in a net loss of habitat for the birds, despite the government’s official recovery plan stating that loss of habitat was the main threat facing the species.
The plans also rely on new habitat being created, despite the experts saying such a feat has never been achieved.
In addition, they say the mine will destroy the most important remaining habitat, which will not be able to be offset.
Finally, they concluded that errors were made in the calculation of the offset habitats required, and they didn’t take into account the reduced value of the offsets caused by their fragmentation.
“These dodgy figures dramatically underestimate the impact of the mine on an endangered species and significantly reduced the amount of land Adani had to provide compensate for its impacts,” Stasak said
“What is clear is that this mine will clearly have an unacceptable impact on the black-throated finch. Everywhere you look Adani has cut corners in a desperate bit to get this mine up.”
The letter to Frydenberg notes one of the reasons given for approval of the mine was that “it would not have any unacceptable impacts on listed threatened species in view of all avoidance, mitigation and compensation (offset measures to be adopted)”.
ACF says the evidence from the recovery team, after assessing the avoidance, mitigation and compensation plans, shows that there will be an unacceptable impact, meaning the minister should revoke his approval.
Jo Bragg, a lawyer from the EDO Queensland said: “The whole point of the act is to protect and assist the recovery of species like the black-throated finch.
“Here we have a case where the offsets won’t result in a net increase in habitat of the endangered species, therefore for this act to be working, the minister really does need to … revoke the approval and deal with the new information about the lack of net increase in habitat of the endangered black throated finch.”
Bragg said that when a minister’s decision was found to be unlawful, there were avenues for legal challenges of that decision.
The letter to Frydenberg from EDO Queensland says: “ACF considers that the complete loss of the best habitat in Australia for the BTF as a result of the construction of the Carmichael project is an unacceptable impact. Had the information above and expert advice been available at the time of decision it would have led to a decision to not grant the approval.”
A spokesman for Adani said it did not have a comment “on someone having a legal opinion based on an assertion”.
But the spokesperson did forward a response to the expert scientific opinion from last week, which said “all of Adani’s work is consistent with the team’s own black-throated finch recovery plan, as required by the governments.”
“Adani remains open to including and consulting with the team if the discussions are private, proactive and positive rather than held through media in a negative manner that is aimed more at blocking development of the Galilee,” the response said.
A spokesperson from Frydenberg’s office said: “The commonwealth environmental approval for the Carmichael coalmine went through an extremely rigorous process and includes conditions that will provide long-term benefits for the environment through the development of an offset package, including a biodiversity offset strategy.
“The conditions placed on the project followed a comprehensive environmental impact assessment process under the EPBC Act and state legislation, including opportunities for public comments.”