Exporting coal, owning the damage: A legal reckoning arrives for Australian mining

October 7, 2026 — 6:01pm

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The decision by the High Court that NSW coal mines must account for the emissions caused by the product when burnt overseas is “a game changer” for coal production across the country, says Professor Jacqueline Peel, an international climate law expert with the University of Melbourne.

At first blush, the ruling is far more narrow than that. The court found that under NSW planning law, miners have to account for the climate damage done by their pollution. In the past, this has been interpreted to focus on what are known as “scope one” emissions – that is, pollution created in NSW in the process of digging the stuff up.

Now the High Court has found that under NSW planning law, miners must also account for “scope three” emissions – the pollution created when the coal is burnt by their overseas customers – and decision-makers have to consider whether measures are needed to mitigate these emissions.

If this is the case, then mines in other states should not be affected. So far. But as Sue Higginson, a NSW Greens MP and veteran environment lawyer, says you can bet that there are climate activists closely reading planning rules in other states to see if they can take down polluting mines around the country.

Of course, governments can legislate to change........

© The Age