An epic David and Goliath battle has finally come to an end with the High Court on Thursday rejecting an appeal by South Korean company Korea Electric Power Corporation (KEPCO or Hanjeon) to build a “massive” new coal mine in Bylong Valley in New South Wales’ mid west.

That means that South Korean company KEPCO has exhausted all available legal avenues to go ahead with the 25-year life span, underground and open-cut project. 

“The battle to protect the beautiful Bylong Valley from this coal mine is over,” said managing lawyer Rana Koroglu from the Environmental Defenders Office (EDO).

“The IPC’s decision to refuse this mine was sound. It was based on the evidence and the science, including evidence about the ‘problematical’ greenhouse gas emissions. The decision was tested to its limits and in every appeal the IPC’s decision has been upheld, defended by the EDO and BVPA. 

“This project would have generated over 200 million tonnes of greenhouse gas emissions. It would have been an affront to global efforts to limit climate change, particularly when South Korea itself has recently made strong commitments to reduce its greenhouse gas emissions.”

Background

In the lead-up to refusal, until 2018 KEPCO spent more than $700 million acquiring land and licences in order to secure approval for the project.  

In 2019, South Korean company KEPCO’s Bylong Coal Project in mid-western New South Wales was refused by the Independent Planning Commission (IPC), after EDO client the Bylong Valley Protection Alliance (BVPA) took successful legal action to preserve the scenic valley before the IPC, the NSW Land and Environment Court, the Court of Appeal, and the High Court of Australia. 

The NSW Independent Planning Commission released a Statement of Reasons for the refusal, citing impact to groundwater, climate, agricultural land and aesthetic, heritage and natural values. KEPCO applied for judicial review in December 2019. 

The battle for Bylong Valley has been won

Appeal was rejected in December 2020. A further appeal was lodged by KEPCO in March 2021.The Court of Appeal unanimously rejected KEPCO’s challenge in September 2021. KEPCO sought special leave to appeal to the High Court the following month. 

The High Court refused KEPCO’s application in February 2022. 

High Court Justices James Edelman and Michelle Gordan found that “the applicant identifies no question of principle which it would be in the interests of justice for this court to consider”. 

They stated: “An appeal to this court would not enjoy sufficient prospects of success to warrant the grant of special leave to appeal.” 

This brings the matter to an end. 

Looking to the future

In response, KEPCO stated it was “disappointed with the High Court’s decision to dismiss the special leave application”. 

KEPCO stated last year that they might consider the possibility of a hydrogen opportunity at Bylong instead.

EDO’s Ms Koroglu said that this is a landmark case for environmental protection against fossil fuel projects. 

“It means the IPC can be assured that an evidence-based decision to reject these kinds of destructive fossil fuel projects in the future is legally supported.” 

President of the Bylong Valley Protection Alliance and local farmer Phillip Kennedy told the ABC that KEPCO should return the land they have acquired back to the community of the Valley. 

“Sell the land back to the mums and dads that once had it. That would be the ultimate utopia.”

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