Macquarie Generation v. Hodgson

Peter Gray & Naomi Hodgson v. Macquarie Generation [2010] NSWLEC 34: Environmental activists brought suit against a state-owned power company, seeking a declaratory judgment that one of their power stations had been emitting carbon dioxide into the atmosphere in a manner that has harmed or is likely to harm the environment in contravention of § 115(1) of the Protection of the Environment Operations Act 1997. Defendant Macquarie Generation’s motion for summary dismissal was denied on March 22, 2010, although Justice Pain did dismiss the applicant’s case in part. The court found that even if Defendant has an implied authority to emit some amount of carbon dioxide in generating electricity under its license, that authority is limited to an amount which has reasonable regard and care for people and the environment. Macquarie appealed the court’s finding that it was subject to implied CO2 emissions limits. The implicit conditions were based on common law principles that require prevention of emissions in excess of levels that could be achieved by exercising “reasonable regard and care for the interests of others and the environment.” The court of appeals reversed the lower court’s decision, reasoning that these common law principles only protected private rights (such as a nuisance claim) and were not applicable to a permit granted under a statute.