Opinion: Anthony Cox
Sister Brigid Arthur, a nun and bunch of rich kids represented pro bono by a very woke law firm have just taken Whitehaven and the minister for the environment, Sussan Ley to court:
Whitehaven had applied to extend their Vickery mine by 30 Mt. Whitehaven employs 100s of people, indirectly benefits 1000s in the surrounding towns and pays $millions in royalties and taxes.
However, none of that was relevant. The rich kids were very, very concerned that the burning of the extra coal from the proposed extension would ruin their future causing them to be either burnt alive by rising temperatures or drowned by rising seas, or both.
The rich kids sought two things: firstly, they wanted a declaration from the court that the minister had a duty of care to prevent foreseeable harm from the coal mine extension to happen to them. Secondly, they wanted the minister to order an injunction to stop the extension going ahead.
The rich kids engaged an expert, professor Will Steffen. Amazingly neither the minister nor Whitehaven bothered with experts to counter Steffen’s usual hyperventilating nonsense. Accordingly, Steffen was free to present uncontested evidence of the impending doom to the rich kids if the mine extension went ahead. This evidence was the usual pap from the IPCC that CO2 increase was all from humans, that this increase was causing runaway temperature tipping points, that the connection between the rising CO2, all from humans and runaway temperature was linear and proven; and so on.
In a big, kitchen sink Judgment Bromberg J (of Andrew Bolt fame) accepted the first of the rich kiddies’ demands and rejected the second. The reasoning for this was interesting. Bromberg J did a full historical appraisal of the laws of nuisance and negligence going back to when Oog the caveman spilt his dinner on his neighbour. None of this was pertinent because CO2 is not a pollutant and in reality the stuff of life. Regardless, at the end of this historical appraisal which no doubt will be made into a mini-series, Bromberg J concluded the minister did have a duty of care to the rich kiddies, that harm to the rich kiddies was foreseeable and that harm, based on the uncontested evidence of wonderful Will Steffen, was going to happen if coal was going to be burnt.
Here it gets really interesting; and the relevant sections of the Judgment are 81-82. For the injunction to be granted there had to be not only a foreseeable connection between the mine extension and harm to the rich kiddies but that connection had to be proportionate or as the Judge states coherent. Based on Will’s uncontested evidence the minister was able to calculate the temperature increase from 30 Mt of coal and the resulting 100 Mt of CO2 from the extension proposed by Whitehaven:
81 The Minister responded to that contention by quantifying the increase in global temperature that 100 Mt of CO2 would cause. Assuming a purely linear relationship between increased emissions of CO2 and increased temperature, the calculation was available by reference to Professor Steffen’s evidence that further emissions will increase global average surface temperature at a rate of about 1℃ for every 1,800 Gt of CO2 emitted. The emission of 100 Mt of CO2 would therefore result in an increase of one eighteen-thousandth of a degree Celsius.
82 The Minister contended that an increase of that magnitude was de minimis, which I take to mean negligible (see Bonnington Castings Ltd v Wardlaw  1 All ER 615 at 618-619 (Lord Reid)). To make good that contention, the Minister contended by way of example that if it were to be assumed that global average surface temperature would otherwise stabilise at 2℃, it would logically follow that, with the addition of 100 Mt of CO2, the temperature would instead stabilise at 2.00005℃. It was then said that there was simply no evidence before the Court about what that magnitude of increase meant in terms of measurable risk. It was suggested that climate change modelling does not operate at a sufficient level of specificity to provide an answer.
A temperature increase of 0.00005C!
This is the argument used by such commentators as Bolt, Jones etc. That is, Australia’s contribution to any temperature increase is so tiny it is unreasonable to expect Australia to ruin its economy by not using cheap, reliable coal when we export coal to other nations like China which use that economic advantage against us.
I don’t like this argument because it assumes the alarmist position is correct, which it isn’t.
Bromberg J did not completely accept this de minimis concept but still determined it would be incoherent for the minister to use her power of injunction against Whitehaven. So, the rich kiddies and the nun did not get their injunction.
However, the Judgment is still bad news. Firstly, because Will Steffen’s evidence was uncontested and until either a coal company or a conservative minister grows a pair to stand up to the alarmists that uncontested evidence is there as a precedent. Secondly, there remains the option for the nun and the rich kiddies to take an aggregate approach to the court. That is, they could say the 30 Mt of coal from the Whitehaven extension would cause temperature to rise by 0.00005C so the combined coal dug up by all of Australia’s coal mines would cause a much greater increase in temperature therefore all of Australia’s coal mining should be stopped, which is what Will advocated.
Given this it would have been preferable for the minister and Whitehaven to engage some of the many scientists here in Australia and overseas who could repudiate Will’s nonsense: people like Peter Ridd, Ian Plimer, Roy Spencer, Judith Curry etc. It’s not as though repudiating what Will said is difficult. For example, he stated the relationship between CO2 increase and temperature is linear. Sure it is:
Sources: Met Office Hadley Centre HadCRUT4 dataset; Etheridge et al. (1998); Keeling et al. (2001); MacFarling Meure et al. (2006); Merged IceCore Record Data, Scripps Institution of Oceanography