Maules Creek Community Council Inc v Environment Protection Authority

On September 29, 2023, the Maules Creek Community Council Incorporated, a community association concerned about mining impacts in the Leard State Forest region, filed proceedings in the Land and Environment Court of New South Wales. The case challenged the Environment Protection Authority’s (EPA) June 2, 2023 renewal of an Environment Protection Licence (EPL) for Maules Creek Coal Pty Ltd (MCCPL)’s open-cut coal mine. The applicants argued the renewal was unlawful under section 45 of the Protection of the Environment Operations Act 1997 (POEO Act). Section 45 requires the EPA to consider: (1) the pollution caused or likely to be caused by the licensed activity and its impact on the environment; (2) practical measures to mitigate pollution; and (3) whether the licensee is a “fit and proper person.” Section 83 provides further guidance on assessing fitness. The applicants claimed that the EPA failed to adequately consider these factors, relying on the limited content of the “License Review Record.” The applicants emphasized the mine’s emissions of harmful air pollutants—including PM2.5, ozone, metals and metalloids, carbon monoxide, nitrogen oxides, sulfur dioxide, and greenhouse gases (GHGs) such as carbon dioxide and methane. They argued that the EPL did not expressly regulate these pollutants, particularly fine particulate matter and GHG emissions, which are linked to human health risks and climate change. By failing to address these pollutants or require mitigation measures, they argued, the EPA had not satisfied its statutory obligations. MCCPL, supported by the Attorney General of New South Wales, defended the EPA’s process. It argued that decision-makers were not required to provide reasons and that the review must be understood in the broader context of the EPA’s ongoing regulatory oversight, including numerous compliance actions, licence variations, and inspections. On climate and air pollution, MCCPL submitted that industry-wide or regional audits under section 78(4A)—rather than variation of individual EPLs—were the appropriate mechanism to address pollutants such as GHGs. On July 18, 2024, Chief Judge Preston dismissed the case. The Court held that the applicants had not proven that the EPA failed to consider the fitness of the licensee or the pollution impacts required under section 45. It ruled that the absence of detail in the License Review Record did not support an inference of non-consideration, given the broader regulatory context, including the EPA’s risk-based licensing system, ongoing enforcement, and licence variations. The Court found it reasonable that the EPA might decide not to vary the licence if air pollutants were better addressed through industry-wide mechanisms. In a subsequent order on November 21, 2024, the Court directed that each party bear its own costs. While the proceedings were unsuccessful, the Court recognized they were brought in the public interest.