Current Cases

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

Wollar Progress Association Incorporated v Wilpinjong Coal Pty Limited & Anor

Update: The Wilpinjong matter was heard in the LEC on 8, 9 and 12 February 2018.

The Wollar Progress Association, represented by EDO NSW, commenced proceedings in the Land and Environment Court to challenge a decision by the NSW Planning Assessment Commission (PAC) to allow the extension of the Wilpinjong open cut coal mine near Wollar, Mudgee.

Wilpinjong Coal, a subsidiary of Peabody, sought permission to expand its open-cut mining operations for an additional seven years and develop a new open cut pit that will bring the mine closer to the village of Wollar. The Wollar Progress Association has long held concerns about the impact of the Wilpinjong mine on the local community and the environment. The PAC approved the extension in April 2017.

The Wollar Progress Association argued that the approval is invalid because, amongst other things, the PAC hasn’t considered climate change impacts in the way it should according to NSW planning law. The NSW Government introduced a State Environmental Planning Policy in 2007 which requires decision-makers to consider the greenhouse emissions of mines, including downstream emissions. The law requires the decision-maker to have regard to relevant State or national policies, programs or guidelines. NSW currently has a target of net-zero emissions by 2050 under its 2016 Climate Change Policy Framework.

The Wollar Progress Association argued that the emissions from the burning of this coal should have been considered by the PAC in light of government objectives to reduce greenhouse gas emissions.

Image of Bayswater and Liddell power stations by Brian Yap via Creative Commons.

This is the first case to test the efficacy of these requirements, which were designed to ensure the climate change impacts of mining are fully assessed, including emissions arising from the burning of product coal once sold. The proper assessment of downstream emissions is particularly important in this case because a substantial proportion of the coal from the Wilpinjong mine is planned to be burned at power stations within NSW.

The Wollar Progress Association  also argued that the approval is invalid on other grounds. Firstly, that the PAC was not properly constituted in accordance with legal requirements; secondly, that the PAC did not undertake a proper assessment of the impacts on biodiversity. The mine will clear endangered ecological communities.

Meg Lamb, Solicitor for EDO NSW, has carriage of this matter for Wollar Progress Association and our Principal Solicitor, Elaine Johnson, is the solicitor on record.

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

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Humane Society International Australia v Great Barrier Reef Marine Park Authority

Humane Society International Australia (HSI), represented by EDO NSW, is seeking independent review of the Great Barrier Reef Marine Park Authority’s (GBRMPA) decision to approve a lethal shark control program in the Great Barrier Reef Marine Park.

HSI has lodged an appeal in the Administrative Appeals Tribunal (AAT) which will require a full reconsideration of the approval of the shark control program. The 10 year lethal control program targets 26 shark species in the Marine Park, including threatened and protected species. The appeal is based on the public interest in protecting the biodiversity of the Great Barrier Reef Marine Park.

The Great Barrier Reef is a World Heritage Area globally recognised as an outstanding example of biological evolution, containing unique, rare and superlative natural features and areas of exceptional natural beauty. The World Heritage listing notes that the Great Barrier Reef is one of the richest and most complex natural ecosystems on earth, and one of the most significant for biodiversity conservation. Australia has a legal responsibility to ensure its protection.

As apex predators, sharks play a vital role in maintaining the health of the Great Barrier Reef. HSI is concerned about the ongoing impacts caused by the use of lethal drumlines which are known to impact not only on shark species but also dolphins, turtles and rays. HSI is calling for non-lethal alternatives for bather protection.

In these proceedings, the AAT will be presented with expert evidence based on the best available science relating to shark control programs and will determine whether the program as approved should go ahead.

Belinda Rayment, Solicitor at EDO NSW, has carriage of this matter for HSI Australia.

We are grateful to barristers Philip Clay SC, Saul Holt SC and Natasha Hammond for their assistance in this matter.

Link to this case summary.

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Australian Conservation Foundation v WaterNSW

Our client, the Australian Conservation Foundation (ACF), sought access to information held by WaterNSW (the NSW Government regulator) about Water Access Licences held under the Water Management Act on the Barwon-Darling River by major irrigators. Following a case lodged by ACF last year, WaterNSW decided to release the information. However, the irrigators have commenced their own case objecting to that decision. ACF argues the public has a right to know about the information.

ACF argues that the public has a right to know how the NSW Government is regulating and enforcing the use of one of our most vital natural resources and that transparency is key to public confidence in the regulatory system governing water access and use in the Barwon-Darling Basin.

On behalf of ACF, we are asking the NSW Civil and Administrative Tribunal (Tribunal) to decide that the release of this information is in the public interest.

Background

In December 2016, we applied, on behalf of ACF, for information about the Water Access Licences under NSW freedom of information laws.

WaterNSW released some licensing information in February 2017, but much of what our client requested was withheld on the basis that it would prejudice the business affairs of the licence holders.

In May 2017, we applied for further information, on behalf of ACF, in respect of other licences held by the irrigators. WaterNSW responded by refusing to release the majority of the information sought, again, on the basis it would prejudice the business affairs of the licence holders.The information sought is crucial to understanding how the Water Management Act is administered by WaterNSW. Accordingly, the release of the information is likely to inform an issue of significant public importance.

For this reason, on behalf of ACF, we appealed WaterNSW’s decisions to withhold the information to the Tribunal in July 2017. Midway through those proceedings, WaterNSW reversed its decision and decided to release the information. However, the irrigators objected to the release of the licensing data and sought a further review by WaterNSW. Ultimately, WaterNSW upheld its decision to release the information and, in late January this year (2018), the irrigators commenced their own proceedings in the Tribunal objecting to the release of the information.

ACF is not a party to those proceedings but, as the original access applicant, has a right to appear and be heard in the proceedings. ACF will argue that there is an overriding public interest in the disclosure of the information it seeks.

Access to this information is vital for the public to have confidence that important environmental laws protecting fair and equitable access to Australia’s water resources are being properly administered. This was most recently highlighted by the recommendations of the NSW Ombudsman and Ken Matthew’s independent investigations into water management and compliance in NSW.

The matter is next before the Tribunal on 19 June 2018.

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Humane Society International v Department of the Environment and Energy

Our client, Humane Society International (HSI), is seeking access to documents held by the Australian Department of the Environment and Energy on the adequacy of NSW’s biodiversity offsets policy for major projects ('the Policy').

HSI argues that the public has a right to know why the Australian Government believes, despite evidence to the contrary, that the NSW Policy meets national standards. On behalf of HSI, we are asking the Administrative Appeals Tribunal to find that it is in the public interest to release the documents under Freedom of Information laws. 

Background

Biodiversity offsets have become standard practice in the approval and assessment of major developments in Australia, even though there is little evidence that offset schemes achieve their intended purpose of protecting threatened species from extinction.

Biodiversity offsets allow developers such as mining companies to buy/manage land, or pay money into a fund, to compensate for the clearing of forests and areas containing threatened plants and animals.

Community groups such as HSI are concerned that the method for calculating biodiversity offsets in NSW, contained in the NSW Policy, does not properly protect the environment – including the plants and animals on the national list of threatened species and ecological communities.

The Australian Government, which is responsible for the national list of threatened species – and has international obligations to protect and conserve biodiversity in Australia – has stated that the NSW Policy meets national standards of environmental protection. However, analysis by EDOs of Australia shows clearly that the NSW policy provides weaker environmental protection than required under national environment policies.

With the Australian Government delegating more and more development approval powers to the states and territories under its ‘one stop shop’ policy, community groups fear that there will be fewer protections for our nationally threatened species and ecological communities.

HSI is therefore seeking access to documents detailing the Australian Government’s analysis of the NSW Policy. Access to this information is vital for the public to have confidence that important environmental protections are not being eroded.

Rana Koroglu, Senior Solicitor at EDO NSW, has carriage of this matter for HSI.

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Koala


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Inland Rivers Network v Harris & Another

EDO NSW, on behalf of its client the Inland Rivers Network, has commenced civil enforcement proceedings in the NSW Land and Environment Court in relation to allegations of unlawful water pumping by a large-scale irrigator on the Barwon-Darling River.

The two water access licences at the centre of these allegations allow the licence holder to pump water from the Barwon-Darling River in accordance with specified licence conditions, as well as rules set out in the relevant ‘water sharing plan’. The conditions and rules specify – amongst other things – how much water can be legally pumped in a water accounting year (which is the same as the financial year) and at what times pumping is permissible (which depends on the volume of water flowing in the river at any given time). 

Our client alleges that the holder of these licences pumped water in contravention of some of these conditions and rules, thereby breaching relevant provisions of the Water Management Act 2000 (NSW) (WM Act). The allegations are based on licence data obtained by EDO NSW earlier in 2017 from Water NSW, a state-owned corporation charged with the responsibility of regulating compliance with the WM Act. 

Analysis of this data, along with the relevant rules and publicly available information on river heights, indicates that the licence holder may have pumped significantly more water than was permissible on one licence during the 2014-15 water year, and taken a significant amount of water under another licence during a period of low flow when pumping was not permitted in the 2015-16 water year. Despite being made aware of these allegations by EDO NSW on two occasions, in April and August 2017, and having had access to the data since at least July 2016, Water NSW has not provided any indication that it intends to take compliance action against the licence holder.

Both allegations concern the potentially unlawful pumping of significant volumes of water, which may have had serious impacts on environmental flows in the river and downstream water users. However, our client is particularly concerned by the alleged over-extraction in the 2014/15 water year, as this period was so dry that the Menindee Lakes – which are filled by flows from the Barwon-Darling River – fell to 4 percent of their total storage capacity. This in turn threatened Broken Hill’s water security and led the NSW Government to impose an embargo on water extractions during part of that year in order to improve flows down the Barwon-Darling into the Lakes and Lower Darling River. 

In these proceedings, the Inland Rivers Network is seeking, amongst other things, an injunction preventing the licence holder from continuing to breach the relevant licence conditions. In addition, and in order to make good any depletion of environmental flows caused by the alleged unlawful pumping, our client is also asking the Court to require the licence holder to return to the river system an equivalent volume of water to that alleged to have been unlawfully taken, or to restrain the licence holder from pumping such a volume from the river system, during the next period of low flows in the river system. Failure to comply with a court order constitutes contempt of court, which is a criminal offence. 

EDO NSW is grateful to barristers Tom Howard SC and Natasha Hammond for their assistance in this matter.

Brendan Dobbie, Senior Solicitor at EDO NSW, has carriage of this matter for IRN.

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With your support, we can continue to help community groups like Inland Rivers Network defend the environment. Please make a donation today.