Case: Minister for Environment and Heritage v Greentree [2004] FCA 741 ; (2004) 138 FCR 198
Outcome: applied
The applicant supports the assertion that the impact of actions should be assessed in the context of the impact of other potential actions by referring to Booth v Bosworth [2001] FCA 1453 ; (2001) 114 FCR 39, Minister for Environment and Heritage v Greentree [2004] FCA 741 ; (2004) 138 FCR 198, Greentree v Minister for Environment and Heritage [2005] FCAFC 128 ; (2005) 144 FCR 388, and Brown v Forestry Tasmania and Others (No 4) [2006] FCA 1729 ; (2006) 157 FCR 1. In my view none of these cases supports the applicant's argument. 44 Whether or not, in terms of greenhouse gas emissions, this approach would materially alter the assessment of the Anvil Hill Project, I have difficulty in conceiving how one would go about assessing a proposed action in the context of hypothetical/potential actions. Be that as it may, however, the Act does not prescribe the frame of reference by which the Minister is to assess the significance or substantiality of an impact upon a protected matter. It contains no requirement that such assessment be confined to a comparison with other, hypothetical, proposed actions. The assessment of whether an impact is or is not significant is a question of fact; Minister for Environment and Heritage v Greentree [2004] FCA 741 ; (2004) 138 FCR 198 at [192] . As such, the delegate was entitled to assess the significance and substantiality of the impact of the proposal as a whole rather than merely in comparison with other potential actions. The applicant's assertion must be rejected. 45 The applicant alleges that in assessing the impact of the proposed mine, the delegate failed to take a relevant consideration into account in that: the delegate failed to consider that the greenhouse gas emissions that will result from the action will contribute to "loss of climatic habitat caused by anthropogenic emissions of greenhouse gas" which is a key threatening process included in the list under s 183 of the EPBC Act. A process is a key threatening process if it satisfies the criteria established in s 188(3) and (4): (3) A process is a threatening process if it threatens, or may threaten, the survival, abundance or evolutionary development of a native species or ecological community. (4) A threatening process is eligible to be treated as a key threatening process if: (a) it could cause a native species or an ecological community to become eligible for listing in any category, other than conservation dependent; or (b) it could cause a listed threatened species or a listed threatened ecological community to become eligible to be listed in another category representing a higher degree of endangerment; or (c) it adversely affects 2 or more listed threatened species (other than conservation dependent species) or 2 or more listed threatened ecological communities. 46 Listing a process as a key threatening process under s 183 authorises the establishment of a threat abatement plan under Part 13 Div 5 of the Environment Protection and Biodiversity Conservation Act 1999 (Cth). A threat abatement plan must provide for the research, management and other actions necessary to reduce the process to a level that maximises the chances of the survival of affected species and communities.