KEPCO Bylong Australia v. Independent Planning Commission and Bylong Valley Protection Alliance

Summary:

On September 18, 2019, the Independent Planning Commission of New South Wales rejected KEPCO Bylong Australia's application to build the Bylong Valley coal mine on several grounds, including its contribution to climate change. The Commission's grounds of refusal included the failure to develop a plan to manage the Scope 3 greenhouse gas emissions associated with the project and the fact that "the distribution of costs and benefits over and beyond the life of the mine [was] temporally inequitable in that the economic benefits accrue to the current generation and the environmental, agricultural and heritage costs are borne by future generations."

KEPCO, a major Korean utility company, appealed the decision in the New South Wales Land and Environment Court on December 16, 2019. After the Commission declined to participate in the proceedings, the Bylong Valley Protection Alliance, a community group, successfully intervened and was joined as a second respondent.

On December 18, 2020, the Court rejected KEPCO's appeal, upholding the Independent Planning Commission's findings that the mine was contrary to the principles of ecologically sustainable development and would have problematic climate impacts.

On March 19, 2021, KEPCO subsequently submitted another appeal to the NSW Court of Appeal. On August 25, 2021, the Court dismissed the appeal. The Court found that the Commission had adequately found that KEPCO had not proposed to minimize GHG emissions and that the State Climate Change Policy concerning GHG emissions was applicable.

On October 14, 2021, KEPCO applied for special leave to appeal the decision to the High Court in a final bid to overturn the refusal. The High Court declined to grant special leave, meaning KEPCO has exhausted all legal avenues to challenge the refusal.

At Issue: Whether a planning commission's rejection of a coal mine on sustainability and climate grounds was unlawful