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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.

The board of AGL Energy Limited, Australia’s biggest greenhouse gas emitter, announced in 2021 that they intended to pursue a demerger creating two separate entities, AGL Australia Limited (a retailer) and Accel Energy Limited (a generator). The proposed demerger was being pursued by way of a scheme of arrangement under the Corporations Act 2001 (Cth), which requires Court approval at two stages, along with a shareholder vote. Initially, the Court must approve the materials that AGL puts to shareholders for the vote and to convene the scheme meeting where the vote takes place. Shareholders are typically unable to access the materials prior to the ‘first hearing’ of the application. In the present case, the plaintiff was a high value shareholder of AGL who, without having access to those materials, was concerned that those materials may not adequately address climate risks associated with the demerger.

On 5 May 2022, at a hearing of the Supreme Court of New South Wales, the plaintiff sought leave to be heard in the Court’s hearing of the application, including on the basis that the proposed demerger was not in the best interests of shareholders. Leave was granted and AGL tendered the scheme materials and was required to provide the materials to the plaintiff to review. The Court made orders to publish the scheme booklet unamended, however, it ordered that the videos that AGL proposed to publish on the demerger were to be amended to disclose the risks and disadvantages of the demerger. 

On May 30, 2022, AGL decided to withdraw the demerger proposal altogether.  

In October 2021, the Nature Conservation Council (NCC) of New South Wales (NSW) filed a case against the NSW Water Minister and NSW Environment Minister to challenge the validity of the Border Rivers Water Sharing Plan.  The plaintiffs have asked the court to invalidate the Border Rivers Water Sharing Plan in the Murray-Darling Basin on the grounds that decision-makers have failed to properly consider climate change, thereby breaching the Water Management Act 2000.  This includes a failure by the Ministers to factor in the impact of the most recent drought in Australia on the Basin.  The plaintiffs rely on the rights of children and future generations to enjoy and benefit from healthy, functioning river systems.

The plaintiffs allege that rivers in Australia are already being impacted by over extraction.  Climate change will only worsen those impacts and amplify inequities already embedded in water sharing regimes, including for Indigenous Australians and future generations.  The NCC asks the court to look at the impacts beyond the Border Rivers, including surrounding floodplains, downstream rivers and communities, notably the Barwon-Darling/Barka River, since some of its flows come from the Border Rivers catchment.


New South Wales

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