Private vs. Public right (Civil Enforcement)

In the case of Gray[1] the applicants were two members of a climate change activist group and as private citizens brought proceedings pursuant to an open standing provision to enforce pollution laws so as to require mitigation of MG’s total emissions. While private rights generally focus on common law protection, the tort of public nuisance protects public rights and can be brought in respect of public environmental harm. At common law, the attorney general can bring actions in public nuisance where such act or omission endanger the life, health, property, morals or comfort of the public or obstruct the public in the exercise or enjoyment of their rights. Because the court has failed to apply analogous cases between public nuisance and environmental harm by operation of s115(1) of the POEO Act,[2] with respect, such point ought to be properly addressed in by the next court of appeal hearing/judgment.

It is argued that MG, during the relevant period, has indirectly altered the environment by increasing the atmospheric concentration of anthropogenic CO2. This has contributed to global warming and ocean acidification in a manner that has harmed the environment within the meaning of s115 of the POEO Act[3] which has resulted “pollution” within the meaning of the Act. Such air pollution defined under the POEO Act[4] means that any air impurity which include smoke, dust, cinders, solid particles of any kind, gases, fumes, mists, odours and radioactive substances which has harmed the environment directly or indirectly has altered the environment in the effect of degrading the environment.

Statutory interpretation

The purpose of the POEO Act[5] is to assist in the management of the environment. In December 1996, the Protection of the Environment Operations Bill[6] was introduced with the aim of strengthening the State’s regulatory framework from pollution control to protecting the environment and to reduce pollution, to improve the efficiency and effectiveness of environment protection legislation and to assist the achievement of the objectives set forth in the Waste Minimisation and Management Act 1995 (NSW)[7] which is consistent with the objectives of the EPA under the POEO.[8] The POEO Act[9] now replaced the pollution control legislation for which objectives has broadened by using variety of tools to protect, restore and enhance the environment to reduce pollution. Such objectives in these various pieces of legislation translate into the EPA’s corporate goals, which are to improve the state of the environment in NSW to support an environmental friendly community and to continue to improve the EPA’s organizational performance. Matters to be taken into consideration in licensing functions are that the EPA is required to consider all relevant effects of granting a licence to bodies that may pollute. CO2 is a greenhouse gas that is not environmental friendly especially when it is produced in excess. Despite the fact that MG had a licence to emit pollution which didn’t cover CO2, yet such a requirement clearly fit as a consideration that should be considered by the EPA. In assessing such a licence, the appropriate regulatory authority ought to consider its environmental policy,[10] the EPA’s objectives[11] or guidelines issued by the EPA.[12] Consider whether such activity or work is likely to cause environmental harm[13] by taking practical measures to prevent or to mitigate the pollution so as to protect the environment from environmental harm[14] or to restore the environmental value.[15] In addition, the EPA must consider whether the applicant is a fit and proper person to hold such the licence.[16] Such applicants may be granted licences either unconditionally or subject to conditions such as to limit on the types and quantities of pollution or monitor with reporting requirements so as to prevent any likely environmental harm.[17]

Despite part 3.5 of the POEO Act[18] provides a non-exhaustive list of conditions that may be attached to a licence. However if such licence condition is challenged in court, any condition imposed must reasonably relate to the subject of the licence. If such licence condition imposed by the EPA is irrelevant to the purpose of the licence grant, that is the pollution control, or if such licence condition is unclear in its application or is unreasonable according to the Wednesbury[19] principles, a court or tribunal may strike down such condition/s.[20] It is an offence for a licence holder to supply information to the EPA if it is false or misleading.[21] Conditions may also require MG, as a licence holder to provide information in relation to the pollution incident of a type for which to notify the EPA in accordance with part 5.7 of the POEO Act.[22] In addition, s117 of the POEO Act[23] provides that the emission of ozone depleting substances in a manner that harms the environment would constitute as the most serious offence.[24] For such operation of premises in such a manner to cause air pollution is guilty of an offence,[25] provided such air pollution was caused from premises within the meaning of sections [124]-[126] of the POEO Act,[26] unless MG satisfies the court that such air pollution did not cause air pollution outside the premises.[27]

Conclusion

The Court of Appeal's decision provides some certainty to all holders of pollution licences that conditions and limitations on such licences won't be arbitrarily implied. Whether CO2 may be found to constitute a "waste" for the purposes of section 115(1) of the POEO Act[28] in future remains a live question.

 

Bibliographies

Secondary Sources

Alex Gardner and Jessica Lee, ‘Case note: Macquarie Generation v Hodgson [2011] NSWCA 424’ (2012) Australian Environment Review, 322.

Maddocks, ‘Protection of the Environment Guide’ (2006) Protection of the Environment.

Cases

Associated Provincial Picture House Ltd v Wednesbury Corporation [1948] 1 KB 223.

Environment Protection Authority v Cleary Bros (Bombo) Pty Ltd (1996) 92 LGERA 101.

Gray v Macquarie Generation [2010] NSWLEC 34.

Gray v Macquarie Generation (No 2) [2010] NSWLEC 82.

Gray v Macquarie Generation (No 3) [2011] NSWLEC 3.

Kent v Jackson (1973) 2 ACTR 1.

Macquarie Generation v Hodgson [2011] NSWCA 424.

Massachusetts v Environmental Protection Agency (2007) 549 United 497.

Newbury District Council v Scretary for the Environment [1981] ACT 578.

Van Son v Forestry Commission of New South Wales (1995) 86 LGERA 108.

Legislation

Civil Procedure Act 2005 (Cth).

Energy Service Corporation Act 1995 (NSW).

Environment Operations Act 1997 (NSW).

Environment Operations Bill 1996 (NSW).

Protection of the Environment Operations Act 1987 (NSW).

Uniform Civil Procedure Rules 2005 (NSW). 

Waste Minimisation and Management Act 1995 (NSW).

 

[1] Macquarie Generation v Hodgson [2011] NSWCA 424; (2011) 186 LGERA 311. 

[2] Protection of the Environment Operations Act 1997 (NSW), s115.

[3] Protection of the Environment Operations Act 1997 (NSW), s115.

[4] Protection of the Environment Operations Act 1997 (NSW).

[5] Protection of the Environment Operations Act 1997 (NSW).

[6] Environment Operations Bill 1996 (NSW).

[7] Waste Minimisation and Management Act 1995 (NSW).

[8] Protection of the Environment Operations Act 1997 (NSW), s3.

[9] Protection of the Environment Operations Act 1997 (NSW).

[10] Protection of the Environment Operations Act 1997 (NSW), s45(a).

[11] Protection of the Environment Operations Act 1997 (NSW), s6.

[12] Protection of the Environment Operations Act 1997 (NSW), s45(m).

[13] Protection of the Environment Operations Act 1997 (NSW), s45(c).

[14] Protection of the Environment Operations Act 1997 (NSW), s45(d).

[15] Protection of the Environment Operations Act 1997 (NSW), s45(fl)(ii).

[16] Protection of the Environment Operations Act 1997 (NSW), s45(f), s45(g).

[17] Protection of the Environment Operations Act 1997 (NSW), s63.

[18] Protection of the Environment Operations Act 1997 (NSW), part 3.5.

[19] Associated Provincial Picture House Ltd v Wednesbury Corporation [1948] 1 KB 223.

[20] Newbury District Council v Scretary for the Environment [1981] ACT 578; Environment Protection Authority v Cleary Bros (Bombo) Pty Ltd (1996) 92 LGERA 101.

[21] Protection of the Environment Operations Act 1997 (NSW), s66(2).

[22] Protection of the Environment Operations Act 1997 (NSW), part 5.7, s66(2A).

[23] Protection of the Environment Operations Act 1997 (NSW), s117.

[24] Maddocks, ‘Protection of the Environment Guide’ (2006) Protection of the Environment.

[25] Protection of the Environment Operations Act 1997 (NSW), s124.

[26] Protection of the Environment Operations Act 1997 (NSW), s124-s126.

[27] Protection of the Environment Operations Act 1997 (NSW), s127.

[28] Protection of the Environment Operations Act 1997 (NSW), s115(1).

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