The New South Wales Land and Environment Court’s provisional judgement was made after an action by environmental group Hunter Environment Lobby that argued that the Ulan mine would create scope 1, 2, and 3 emissions.

Scope 1 emissions include fugitive methane emissions, scope 2 emissions come from the mine operations themselves, and scope 3 emissions are generated by the overall economy when generating power using coal. By the end of the case, HEL sought conditions for Ulan to offset scope 1 and 2 emissions.

It claimed Ulan would emit 28.7 million tonnes per annum of carbon dioxide equivalents, which would release 575Mt of carbon dioxide equivalents into the atmosphere over the mine life.

As a result of these arguments Justice Pain has set a condition for Ulan to mitigate and offset the additional scope 1 emissions that would be generated under the expansion of the mine.

Ulan has estimated it would cost $2.2 million a year to offset these additional emissions.

The Ulan expansion to 20Mtpa would create an additional 295 full-time jobs, more than 880 indirect jobs, and $A11.9 billion in direct increased economic activity over its extended mine life, according to Xstrata.

In her provisional judgement, Justice Nicola Pain found that it was not discriminatory for Ulan to pay to offset greenhouse gases and that the court had the power to impose conditions on major resource and infrastructure projects prescribed by NSW’s now defunct Part 3A planning procedure.

Former Labor Party planning minister Tony Kelly approved the expansion a year ago under Part 3A

''That this is the first such condition imposed on a coalmine in NSW is not necessarily discriminatory,'' she is reported as saying in the SMH..

''It is simply the first occasion that has occurred.

''As other operating coalmines seek approval to modify or extend their operations, or new coalmines are opened, it would be open to the consent authority, which may be the minister, to impose a similar condition.''

Xstrata is expected to appeal the provisional decision. Xstrata spokesperson James Rickards is quoted in the SMH as saying: "Discussions are yet to be conducted, as guided by the court, as we look towards trying to resolve the matter definitely and progress the Ulan operation."