The EDO’s Sue Higginson: solastalgia, subplots and lawfare

Trials and tribulations: Sue Higginson spoke of her work with the Environmental Defenders Office
Trials and tribulations: Sue Higginson spoke of her work with the Environmental Defenders Office at Il Passaggio in February.

NSW Environmental Defenders Office CEO Sue Higginson paints a picture of EDO lawyers, haggard and caffeinated, racing between their office on Clarence Street and the Land and Environment Court on Macquarie Street, chasing “mining companies with the deepest pockets you can imagine” and “lawyers who lodge Notices of Motion at 1 am”.

It’s comical until you realise the gravity of the work. The Environmental Defenders Office (EDO) concentrates its resources on the cases that other lawyers don’t take on. Important public interest cases. Cases where there’ll be a lasting or permanent impact on the environment, where governments haven’t followed the law. Blowing the whistle, holding governments to account.

The EDO is a community legal centre specialising in public interest environmental law. It employs 22 lawyers who play a critical role in providing legal advice and assistance to communities seeking to protect the environment.

Over the years we’ve seen huge improvements to urban and natural environment planning processes. We had the laws (the Environmental Planning and Assessment Act, 1979), and a specialist court (the Land and Environment Court, 1980), but there was no community access to the law, and that’s where the EDO was born, in 1984—”the intersection between the community, the law and the environment”.

“When local communities engage [in environmental decision-making], you get better outcomes,” said Sue, who spoke at the Bermagui Institute Public Dinner at Il Passaggio restaurant on Wednesday 22 February.

Anyone can contact the EDO. It has an advice service; citizens can consult it about their rights when, say, a neighbour cuts a tree down. It has its litigation service, as above.  And it has a Policy and Law Reform team who advise on “what the laws should look like”. For instance, there was nothing in the planning laws for coal mines about mitigation of climate change, so when those laws were up for renewal, the EDO made submissions—which are now part of the review process.

But one of Sue’s passions has been “educating people, bringing them on board, making them understand that they are a part of the lawmaking system”.

Two of the EDO’s “war stories” are its fights against large coalmines: the expansion of Rio Tinto’s Warkworth coalmine in the Hunter region of NSW, and the proposed Adani-Carmichael coalmine in Queensland’s Galilee Basin.

The small town of Bulga and the nearby Warkworth coalmine, the largest in NSW, have coexisted since 1981. But with the coal export boom, the NSW Coalition government granted permission for Rio Tinto to expand its mine, despite it meaning the destruction of a unique woodland—the Warkworth Sands Woodland—which happened to also provide a buffer between the mine and Bulga.

Was this legal?

In 2012 Bulga Milbrodale Progress Association approached EDO lawyers, who quickly saw that they could fight a “merits-based case”. This means that they didn’t need to restrict their arguments to points of law; they could bring in environmental and social impacts. But the EDO also suspected that Rio Tinto’s economic claims were exaggerated. They consulted the Australia Institute.

“Richard Dennis and his team debunked Rio Tinto’s economic experts and their shallow analysis,” said Sue. They exposed errors in Rio Tinto’s calculations of income, royalties and what goes back to the community. They talked about “the cost of extinction”. And then they brought up “solastalgia”.

Solastalgia has been defined as a form of existential distress caused by environmental change. “It’s the illness, the state of mind you experience when your environment changes so drastically in a negative way in front of your eyes,” said Sue.

The judge didn’t appreciate the solastalgia concept. He was more comfortable talking about social impacts (Sue was gratified, a year later, when that same judge cited solastalgia in a ruling on a case in Queensland. It appears he’d come to terms with it). But he found that, in the Bulga case, the social and environmental impacts were so significant that they outweighed any economic benefits of the mine’s expansion.

The EDO had succeeded in reducing the economic benefits of the expansion to their true value, and escalating the social and environmental impacts to their true value. “For the first time ever in Australia, the courts had refused a mine.”

Two days later, Rio Tinto’s CEO flew from London and went to Premier Barry O’Farrell’s office. The EDO’s funding was placed on “radical hold”. Sue said, “That’s when I realised that there’s an entirely different subplot that can operate at a different level. I think that was the day I woke up.”

The Public Purpose Fund (PPF)—the NSW Law Society’s statutory trust fund—supports the legal service sector, eg Legal Aid—and the EDO. Sue had thought that the PPF was an independent source of funding. No. It turns out that the Attorney General signs off on funding from the PPF. And in 2012, Farrell’s Attorney General, Greg Smith, slashed EDO funding.

Sue realised she had to immediately diversify the EDO’s funding base. PPF, which constituted 80% of EDO’s funding, now equates to 30%. They now have a team member dedicated to fundraising.

Sue finished her talk with ‘war story’ number two: Mackay Conservation Group approached EDO in 2015. The Federal Government had just approved the biggest coalmine in the world—the Adani mine.

At the Commonwealth level, the EDO cannot bring a case on merits, as it did with Rio Tinto’s Bulgar mine expansion. “All I can do is ask, did Greg Hunt follow the law when he approved that coalmine? Or did he make an error?” They had 28 days of “discovery”, from when they received Greg Hunt’s reasoning, to decide if they had a case. They did.

“You have the world’s largest coalmine, just been approved. Why did Greg Hunt say that the greenhouse gas emissions generated from burning this coal is ‘of no consideration to me’?” The burning of that coal, wherever it would be burned, was going to make a measurable contribution to global greenhouse gases. The Barrier Reef would suffer significant impacts.

Greg Hunt also made a mistake on technical grounds. He had been required to consider any impact of the project on endangered species, and two species had been listed in the region: the Yakka Skink and the Ornamental Snake. Hunt had neglected to consider this factor.

Thirdly, the Minister was required to consider the past environmental performance of the proponent. “We had a plethora of material proving Adani is a very poor environmental performer in India.” Greg Hunt said he had not looked into Adani’s past performance because they had assured him of their good past behaviour in 2010.

Sue and her colleagues filed their written submissions, sat back and looked forward to their court date. But two days later they got a phone call; the government wanted to settle. They’d conceded defeat.

Of course that wasn’t the end of it. Soon Tony Abbott was in Parliament yelling about “vigilante litigants playing ‘lawfare’, using the courts to sabotage progress, jobs and growth” (he didn’t appear at all concerned that his minister had been incompetent and didn’t follow the law).

Guardian cartoonist First Dog on the Moon really went to town on that one (see below or see the whole cartoon). But to the Coalition government, it was no laughing matter. There were two immediate fallouts.

Within a week the Government proposed a change to the law. Currently, a member of the community or a group can bring a case like that against Adani if they have been engaged in environmental education, conservation or research for the previous two years—eg the Mackay Conservation Group. Now, only someone whose interests were directly affected would be able to bring a case.

Leaving aside the question of whose interests are directly affected (aren’t we all directly affected by climate change?), this raises the spectre of an individual farmer whose property adjoins a coal mine having to fight for his rights without the aid of a wider, experienced, resourceful organisation.

That bill is stuck in the Senate and has not been passed—yet.

The second fallout was that a coalition MP whose seat is in the Galilee Basin influenced Greg Hunt to hold an enquiry into the Register of Environmental Organisations.

“You know the saying, ‘Don’t play the man, play the ball,’?” said Sue. “I have never seen such a concerted effort to play the man rather than the ball. In a civil society, we expect to be able to play by the rules, especially in a rule-of-law country.”

Donors to organisations on the Register can claim a tax deduction. This is integral for environmental organisations’ fundraising. The committee running Greg Hunt’s enquiry had a conservative majority and their recommendation was that the Register of Environmental Organisations should be limited to organisations that perform at least 25% of their work in “on the ground” activities, eg tree-planting. It’s an attempt to make it difficult for advocacy groups to raise funds.

This law, as well, has not changed—yet.

Lawfare, indeed.

The first frame of Firt Dog on the Moon's cartoon. See the whole thing:
The first frame of First Dog on the Moon’s cartoon. Click to see the whole thing.

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