Current Cases

We represent individuals and community groups in public interest litigation to protect the environment. These are the cases that we are currently working on.

Western Downs Alliance v Minister for the Environment & Santos Limited

We are acting for Western Downs Alliance in its challenge to a decision by the Federal Minister for the Environment to approve the Santos GLNG Gas Field Development Project in Queensland.  

This is the first CSG case brought under national environmental laws to challenge the application of the Water Trigger, and is an important test case.

The Minister’s approval allows Santos to develop 6,100 coal seam gas (CSG) wells across approximately 1 million hectares of land in the Surat Basin in South-Central Queensland. This represents a substantial expansion on the 2,650 CSG wells approved for an overlapping (but significantly smaller) area in 2010.

Over the project’s predicted life of more than 30 years, Santos is proposing to extract up to 219 billion litres of water, with potential impacts on the Great Artesian Basin. The Environmental Impact Statement (EIS) for the project outlines proposed methods of managing the extracted water, one of which is to release water from the wells into surface water systems such as rivers and lakes.

Western Downs Alliance argues that the approval of the project was unlawful because the Minister did not properly assess the project’s impacts on surface water.

The EIS notes that the project is likely to have a number of surface water impacts, including:

  • increased sedimentation;
  • erosion of stream banks;
  • surface water contamination, including toxicity to aquatic ecosystems; and
  • altered surface water flow.

In November 2014, the Independent Expert Scientific Committee, which was set up in 2012 to provide scientific advice to decision makers on the impact that coal seam gas and large coal mining development may have on Australia's water resources, advised the Minister that there is ‘considerable scientific uncertainty about potential impacts [of this project] on surface water and groundwater and associated ecosystems’. The Committee specifically stated that the potential impacts of discharging water into the Dawson River, including ecological impacts, should be assessed.

This case raises the question of what is required of the Minister under the ‘Water Trigger’, which was added in 2013 as a ‘matter of national environmental significance’ to Australia’s national environmental law, the Environment Protection and Biodiversity Conservation Act 1999 (EPBC Act). Under the Water Trigger, any proposed CSG development that has, will have, or is likely to have a significant impact on a water resource requires comprehensive assessment and approval at a national level by the Minister under the EPBC Act.

Western Downs Alliance argues that the Minister incorrectly formed the view that it was not necessary to assess the impacts of releasing CSG water to surface waters as part of the project approval, and that as a result the approval was unlawful.

The case has been listed for a case management hearing in the New South Wales Registry of the Federal Court of Australia on 27 June 2016.

We are grateful to barristers Geoffrey Kennett SC and Ashley Stafford for their assistance in this matter.

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People for the Plains v Santos and Others

People for the Plains, represented by EDO NSW, is seeking an injunction in the NSW Land and Environment Court to prevent Santos from developing its 'Leewood' coal seam gas (CSG) wastewater treatment facility without first undertaking the proper planning and environmental assessment. The facility will be located near the Pilliga State Forest, near Narrabri in North-West NSW.

The case was heard in the Land and Environment Court on 17 and 18 May 2016. Judgment is expected to be handed down on 7 July. In the meantime, Santos has agreed not to begin the irrigation component of the Leewood facility until after 8 July 2016.

The Leewood facility will form one component of Santos's Narrabri Gas Project, and would treat over one million litres of toxic CSG wastewater each day.

In August 2015 the NSW Department of Industry approved the Leewood project through an amendment to the operational plan for Santos’ petroleum exploration in the area. People for the Plains argues that this approval is invalid because the Leewood project should have been assessed as an independent project, not as part of the company’s exploration work.

The Leewood project is best characterised as a waste or resource management facility, not a petroleum exploration project. Waste or resource management facilities need development consent under the NSW Government's State Environmental Planning Policy (Infrastructure) 2007. Santos avoided the need to obtain development consent by characterising the Leewood project as part of its broader petroleum exploration activities.

The development consent process for water treatment facilities is more rigorous and transparent than the process for petroleum exploration activities. It would require Santos to obtain an Environmental Impact Statement for the project, which would need to go on public exhibition for at least 30 days, giving the community a chance to have their say about the impacts of the proposal. It would also mean that, if the project is approved following this process, objectors would have the right to appeal this approval on the merits of the project in the Court.

We are grateful to barristers James Johnson and Simon Chapple for their assistance in this matter.

For more on this case, read our blog Defending the Pilliga in Court, 21 January 2016.

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4nature Inc v Centennial Springvale Pty Limited and Others

On behalf of 4nature Inc, EDO NSW has launched landmark legal action against a decision by the NSW Planning Assessment Commission (PAC) to approve an extension to the Springvale coal mine underneath the Newnes State Forest in the Blue Mountains.

The approval will allow the mine operator – Centennial Coal – to extract 4.5 million tonnes of coal per year for a further 13 years and discharge large amounts of mine water into the river system that forms part of Sydney’s drinking water catchment. 

This is the first case to test laws passed in 2009 that were introduced to protect Sydney’s drinking water catchment.

The Springvale mine will discharge millions of litres of highly saline mine water every day into the Coxs River, which flows into Lake Burragorang – Sydney’s major drinking water reservoir. Water discharged from the mine also contains nitrates, phosphates, zinc, nickel and other contaminants.

4nature is taking the owners of the mine (Centennial Springvale Pty Limited and Springvale SK Kores Pty Limited) and the Minister for Planning to the NSW Land and Environment Court in a challenge to the approval.

In 2009, the NSW Government introduced laws designed to protect Sydney’s drinking water catchment. Under those laws, a development cannot be approved unless the consent authority is satisfied that the development will have a ‘neutral or beneficial’ effect on water quality.

Because the Springvale mine extension lies within the Sydney drinking water catchment, the project should not have been approved unless the PAC was satisfied the development would have a neutral or beneficial effect on water quality.

4nature argues that there is no evidence the PAC was satisfied the project would have a neutral or beneficial effect on water quality, which 4nature contends would be very difficult given the volumes of mine water the mine will discharge into the river system each day. As such, 4nature argues that the PAC’s approval of the project was unlawful.

The case was heard in the NSW Land and Environment Court on 9-10 May 2016.

EDO NSW is grateful to barristers Richard Lancaster SC and Nicholas Kelly for their assistance in this matter.

Additional information
Centennial Coal is facing a number of legal challenges relating to the water impacts of its coal mining operations in the Blue Mountains. Recently, the NSW Environment Protection Authority (EPA) launched a ‘Tier 1’ prosecution against the company’s Clarence Colliery for an incident that released hundreds of tonnes of coal material into the surrounding environment, with coal slurry entering the Wollangambe River that flows into the Blue Mountains World Heritage Area.

Tier 1 offences are the most serious under the Protection of Environment Operations Act 1997 and come with a maximum penalty of $2m for corporations.

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Bulga Milbrodale Progress Association Inc v Warkworth Mining Limited and NSW Minister for Planning

Our client Bulga Milbrodale Progress Association have withdrawn their appeal against the Warkworth coal mine expansion. Read more on our blog »

The case was to be heard in the Land and Environment Court in June 2016. The expansion is very similar to the project that was refused by the Land and Environment Court in 2013 and then that refusal was upheld by the NSW Court of Appeal in 2014.

The community group says that in granting the approval this time, the PAC breached the law by failing to consider what would happen if the Warkworth Sands Woodland, an endangered ecological community becomes extinct as a result of the project. The group also says that both the Office of Environment and Heritage and the PAC failed to apply the NSW Government’s Offsets Policy for Major Projects in accordance with the law.

The approval lets Warkworth extract an additional 230 million tonnes of coal from the mine over the next 21 years, and will bring the mine closer to Bulga village. Controversially, the approval lets Warkworth mine part of a biodiversity offset that the company was originally required to protect as a condition of a former approval from 2003. As well as providing habitat for threatened plants and animals, the offset area acts as a buffer between the village of Bulga and the mine. The offset area is ecologically significant, as it contains a unique and endangered ecological community, Warkworth Sands Woodland, and is home to threatened squirrel glider and speckled warbler. This Warkworth Sands Woodland is unique to the area and only 13 per cent of the original forest remains.

The PAC approved  a very similar expansion to the mine in 2012. Bulga Milbrodale Progress Association challenged this approval, and won, with the Land and Environment Court finding that the project would have significant and unacceptable impacts on biodiversity, as well as unacceptable noise and social impacts. The Court considered that the proposed conditions of approval were inadequate and would not allow the project to achieve satisfactory levels of impact on the environment, including the residents and community of Bulga. The Court found that these matters outweighed the substantial economic benefits and positive social impacts of the project on the region, and that the extension project should not go ahead.

When Warkworth appealed the Land and Environment Court’s disapproval of the mine, the community was again victorious.

The expansion project approved by the PAC in 2015 is very similar to the project that both the Land and Environment Court and the Court of Appeal ruled could not go ahead. The community does not have merit appeal rights in the Land and Environment Court this time round as merit appeal rights are extinguished where a public hearing about the project is held. There were two public hearings held into the project.

We are grateful to barristers Geoffrey Kennett SC and Robert White for their assistance in this matter.

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Help us run cases like this and deliver the best possible public interest legal service to the community. Please make a donation today.

Image: John Krey

Friends of Tumblebee v ATB Morton & Cessnock City Council

EDO NSW clients Friends of Tumblebee have successfully challenged Cessnock City Council’s approval for the construction of a steel fabrication and workshop facility in an area of forest that is home to the Regent Honeyeater, a bird that is listed as ‘critically endangered’ under both NSW and Australian environmental laws.

The Land and Environment Court’s decision could save habitat critical for the survival of the Regent Honeyeater, a bird species on the brink of extinction.

Friends of Tumblebee argued that a species impact statement should have been undertaken before the development was approved as the development is likely to significantly affect the habitat and survival of the critically endangered bird. The case was reinforced by independent scientific research showing that the Hunter Economic Zone, where the development would have been located, contains one of the few remaining viable breeding sites for this extremely rare bird. The area supports about 10 per cent of the national (and therefore global) population of between 350 to 400 birds, according to the latest expert assessment.

A scientific paper published in the journal Australian Field Ornithology, presented as evidence to the court, reveals that the Hunter Economic Zone where the development is proposed contains one of the most important breeding habitats left for this extremely rare bird.

Read the Court's judgment.

Dr Stephen Debus and Mr. Mick Roderick assisted the Court with expert evidence.

EDO NSW is grateful to barristers Jason Lazarus and Josie Walker who acted as counsel for Friends of Tumblebee in this matter.

With your support, we can continue to help community groups like Friends of Tumblebee defend the environment. Please make a donation today.

Regent Honeyeater. Image: Dean Ingwersen/Birdlife Australia

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Watts v Department of Planning and Environment

Mr John Watts,  a member of the Gloucester community affected by AGL's Coal Seam Gas (CSG) project, succeeded in gaining access to important documents on changes made in 2014 to the NSW Government’s CSG policy.

Represented by EDO NSW, Mr Watts sought information from the Department of Planning and Environment about changes to CSG policy. The NSW Government amended its CSG policy in July 2014, with the result that many significant CSG projects could be approved without a full Environmental Impact Assessment.

The changes directly impacted on AGL's CSG fracking program, which was approved without a full Environmental Impact Assessment.

Mr Watts first sought access to the information in September 2014. After the Department refused access twice, Mr Watts sought a new decision in the NSW Civil and Administrative Tribunal. On 3 March 2016, the Tribunal released its decision ordering the Department of Planning and Environment to release information sought by Mr Watts.

While AGL has announced that it will not proceed with the Gloucester Gas Project, the release of the information is an important win confirming that policymakers are accountable to the community and that policies impacting the environment must be made transparently, and in accordance with the law.

We are grateful to barrister Alexander H Edwards for his assistance in this matter.

With your support, we can help other communities gain access to information to defend the environment. Please make a donation today.

Hills around Gloucester. Image: Dean Sewell/Groundswell Gloucester

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