The Australian Conservation Foundation is taking the Morrison Government to court for failing to apply the 'water trigger' when it referred for assessment Adani's North Galilee Water Scheme project - essential infrastructure for the proposed Carmichael coal mine.
Australia's environment law has a water trigger that requires the federal government to comprehensively assess all large coal mines and coal seam gas developments to see if they will have a significant impact on our water.
In explaining why it did not apply the water trigger to this project, the government reasoned that the pipeline "is not a 'large coal mining development', nor does it involve 'large coal mining development'" and that the pipeline proponent (Adani Infrastructure Pty Ltd) "is a different legal entity" to the coal mine proponent (Adani Mining Pty Ltd).
The government reasoned that "The extraction of coal does not form part of the proposed action. Consequently, the proposed action is not a coal mining activity, nor does it 'involve' coal mining activity."
ACF will argue the government made an error of law in determining that the water trigger applies only to infrastructure that is directly involved with extracting coal.
ACF will argue the pipeline is essential infrastructure to service the coal mine and it would not be built at all if not for Adani's mine. Therefore, the water trigger should be applied.
ACF took similar legal action in December 2018. During that case it became clear the government had failed to properly consider some of the thousands of public submissions it received. In June 2019 the government acknowledged that error and conceded the case, leaving unaddressed the question of whether it failed to correctly apply the water trigger.
"In an era of climate change and extreme drought, the Morrison Government's decision not to apply the water trigger to Adani's project does not pass the pub test," said ACF Chief Executive Officer, Kelly O'Shanassy.
"Australians have a right to expect our government to make decisions lawfully and in the best interests of people, not big coal corporations."
Former independent MP Tony Windsor, a key architect of the water trigger during his time in parliament, said:
"Reliable, long-term access to clean water is vital for regional communities and demands that we sustainably manage our rivers and aquifers.
"Allowing companies to split up mining projects and assess them in isolation makes a nonsense of the process. You don't see much looking at just one piece of the jigsaw - you need to look at the whole puzzle.
"This government is asleep at the wheel when it comes to the threat climate change and big coal mines like Adani's pose to Australia's water sources."
Adani intends to take up to 12.5 billion litres of water per year - the equivalent of 5,000 full Olympic-sized swimming pools - from the Suttor River in central Queensland. Farmers and wetlands rely on the Suttor River, which floods at times and dries up at other times.
Adani plans to use the water to wash coal and suppress dust on the mine site.
There has been enormous public interest in this process, with the government receiving more than 7,000 submissions during the public comment period.
A summary of public comments, released to ACF, reveals that Geoscience Australia raised concerns that Adani's water modelling for the pipeline failed to assess the "potential for climate change (e.g. changes to rainfall patterns) to impact on flood frequency" and ignored the impact of floodwater harvesting on groundwater dependent ecosystems.
ACF lodged originating documents with the Federal Court today. ACF will be represented in court by barristers Neil Williams SC and Angus Scott and solicitors from the Environmental Defenders Office.
