Tag: law

Denniston Coal: October 2026 update

Last month I wrote a long post about the legal risks that would be involved if regulators in Aotearoa New Zealand were to approve Bathurst’s application for the Denniston coal project.

A couple of things have happened since then, so in this post I’ll try to make sense of developments.

First, the EPA’s rejection of Bathurst’s fast-track application causes delays to the project, although it doesn’t stop it. Second, legal advancements in New South Wales bring the combustion emissions argument closer to home.

Environmental Protection Authority returns Bathurst’s fast-track application

Under section 46 of the Fast-Track Approvals Act (FTAA), the Environmental Protection Authority (EPA) returned the application to Bathurst as incomplete. The EPA had asked Bathurst for more information about how it would protect native wildlife in the area, especially lizards. Despite further information being provided, the EPA found that the application still did not comply.

Although this has nothing to do with the combustion emissions issue that I argued should cause the EPA to seriously consider returning the application, it’s a clear set back for the Denniston proposal, causing further delays. Bathurst, of course, will probably just revise and resubmit the application. But the timeline will begin again under s 46(5) FTAA.

If Bathurst reapplies, and if the EPA accepts the application, and if it gets through to the panel stage, there’ll be something else to think about:

A new landmark ruling from NSW: the Mount Pleasant mine and downstream combustion emissions

Today the High Court of Australia released its ruling in Mach Energy Australia v Denman Aberdeen Muswellbrook Scone Healthy Environment Group [2026] HCA 35. The case concerned a proposed extension of the Mount Pleasant coal mine, enabling an extra 406 million tonnes of coal to be extracted over 22 years. About 98% of the projected emissions from the project would be scope 3—the vast majority of which would be downstream combustion emissions.

This case was different to the Denniston one, in that Mach Energy’s Environmental Impact Statement accompanying its proposal already identified scope 3 emissions—most of which came from downstream combustion.

The consent authority granted consent to the project. In doing so it noted that most of the coal would be exported, and stated that under the Paris Agreement, scope 3 emissions are attributed to the country within which they are emitted, and would be “appropriately regulated and accounted for”. It did not consider whether to impose conditions to minimise scope 3 GHG emissions.

By a 3-2 majority, the High Court of Australia held that the consent authority’s approval of the mine extension was invalid, because it had failed to consider how to mitigate the greenhouse gas emissions that would be generated by the mine when the coal is exported and burnt overseas, as required by cl 2.20(1)(c) of the State Environmental Planning Policy (Resources and Energy) 2021 (NSW) and s 4.15(1)(a)(i) of the Environmental Planning and Assessment Act 1979 (NSW). Clause 2.20(1)(c) of the Resources SEPP required the consent authority to consider “whether or not the consent should be issued subject to conditions aimed at ensuring…that greenhouse gas emissions are minimised to the greatest extent practicable”.

It was held that the meaning of “greenhouse gas emissions” in this clause included scope 3 emissions. Edelman J said cl 2.20(1)(c) Resources SEPP ‘does not exclude from the ambit of minimisation conditions those emissions that might be accounted for, or even regulated, by other countries’ (para. 239). The judgment of Gordon J noted that there is no reference to emissions scopes in the UNFCCC, Paris Agreement, or any other international law at the treaty or customary level: ‘The impact of greenhouse gas emissions is the same, regardless of how they are categorised.’ (para. 182)

Implications for Denniston

It’s a different fact pattern. And there is no comparable provision to cl 2.20(1)(c) Resources SEPP in the FTAA: the only sections of the FTAA that on their face enable conditions to be set are ss 84-84AA, and neither of these requires the panel to consider any conditions at all, let alone specifying the consideration of minimising GHG emissions.

But let’s look more closely at the FTAA. As I outlined in the previous post, under s 85(3) a panel may decline to approve an application if it forms the view that (a) there are one or more adverse impacts in relation to the approval sought; and (b) those adverse impacts are sufficiently significant to be out of proportion to the project’s regional or national benefits, “even after taking into account – (i) any conditions that the panel may set in relation to those adverse impacts; and (ii) any conditions or modifications that the applicant may agree to or propose to avoid, remedy, mitigate, offset, or compensate for those adverse impacts.”

Implicit in s 85(3)(b) is a requirement that the panel consider conditions. Think about it: if there weren’t an implicit requirement that the panel take into account possible conditions after determining that there is an adverse impact, the subsection would make no sense.

As I argued in the previous post, it’s highly likely that the effect on global warming of the combustion emissions from the mine constitutes an adverse impact. So the panel, if it found this adverse impact existed, would then be required to consider any conditions it could set or that the applicant might agree to, to avoid, remedy, mitigate, offset or compensate for the GHG emissions generated by the mine when the coal is burnt.

That in my view is the real implication of the High Court of Australia’s judgment in Mach Energy v DAMSHEG: its reasoning can be applied by analogy to bolster the case for the consideration of conditions under s85(3) to include conditions relating to downstream combustion emissions.

Next steps

We’ll see, when Bathurst inevitably reapplies, whether it makes the right decision to include downstream combustion emissions in its application. If it does not, as I argued before, the EPA has the option to reject the application (again). If the EPA accepts the application, it is then open to the panel to find an adverse effect that is sufficiently significant to be out of proportion to the project’s benefits. Finally, if the panel approves the application regardless, it is then open to anyone who submitted on the application to appeal. There’s still a long way to go.

How I won the Whewell Scholarship in International Law

In 2016, at the end of my LLM year in Cambridge, I won a thing called the Whewell Scholarship in International Law. Nearly a decade on, I still, somehow, get the occasional email from people asking me how I did it. I am sick of receiving these emails. Hence I am writing this blog post. (I will no longer reply to such emails.)

This post will first outline what the scholarship is (and what it is not), before going through what I did in preparation for the exam. If you’re not a current Cambridge LLM student, definitely skip this post.

What the Whewell Scholarship Is (And What It Is Not)

Here’s what the Cambridge website has to say about the Whewell Scholarship:

“LLM candidates in international law are eligible to be considered for the award of the Whewell Scholarship in International Law. The award will be made on the basis of a candidate’s performance in any three of the papers designated as specialist papers in international law, together with a candidate’s performance in an additional examination for Paper 40 (the Whewell Paper) on “Problems and Disputed Points in International Law”. This additional examination does not form part of the LLM curriculum, nor does the mark awarded in this paper contribute towards the overall classification of a candidate’s LLM degree. Instead it is intended exclusively for candidates for the Whewell Scholarship. The examination on “Problems and Disputed Points in International Law” will be held at the same time as the other LLM examinations.“

In other words, to win the scholarship you have to come top, or do very well, in three of your four international law papers, as well as top the Whewell exam (“Problems and Disputed Points in International Law”).

The scholarship entitles you to a place at Trinity College for your PhD, plus a small (and I should stress: small) monetary award. It is not a full PhD scholarship. It may, however, assist you in gaining further funding (I got the Commonwealth Scholarship off the back of my Whewell win).

It’s also worth noting that the Whewell has a certain reputation. Because some very eminent jurists have won the Whewell in the past, certain people (Cambridge or Cambridge-educated international lawyers) will think about you / treat you differently if you win. I definitely noticed it. This is true among only a very small and select group of people though, and will obviously benefit you more if you plan to have a career in (academic) international law.

Finally, you get to have your name painted on a nice little board somewhere in the Lauterpacht Centre 🙂

How I Prepared for the Whewell Exam

It’s difficult or impossible to know what will come up in the Whewell exam; in my opinion in compares only to the All Souls specialist exams for its broad range. My strategy was threefold: revise for my other exams very well; practice past papers; and read widely.

  1. I revised for my other exams very well indeed. I chose not to pick and choose topics, but instead revised everything. (Throughout the year, I read the entire reading lists, too.) This added significantly to my workload, but in my opinion proved worth it. I also revised topics in international environmental law, in which I did not sit the exam (I wrote a dissertation in that paper instead). This latter strategy was very worthwhile as the first question on the paper related to the Paris Agreement, which had then recently been adopted.
  2. I found past papers and practiced writing essay skeletons and full essays. This was the bulk of my preparation for the exam. It helped to get a sense of the kinds of questions that could be asked, and helped me to practice thinking broadly or structurally about the issues. It also helped my overall preparation for all my other exams; in my opinion, it’s impossible to practice essay writing too much.
  3. I read widely. I got a sense from reading past papers that many questions touched on then-current topics or disputes in international law. Hence I read current and recent issues of leading journals like EJIL, AJIL and ICLQ. I read some classic/famous books in international law. I got out my old textbook from undergrad and made sure I was fully across the entire spectrum of general issues in public international law.
  4. This wasn’t part of my deliberate strategy, but that whole year I kept on reading broadly outside of law, as I always do, and I think this proved useful. I remember citing Peter Singer in one of my exam answers, for example, to make some point or other.

That’s all. Will doing these things guarantee a win? No. Will they help? Definitely. Will they make you a better international lawyer? I think so.

Remember, if you don’t win – which is the most likely outcome – there are other ways to do a PhD, and other ways to pursue success in international law.

Good luck!