Environment Victoria Inc v AGL Loy Yang Pty Ltd

COURT OR TRIBUNAL

Supreme Court of Victoria

DATE FILED (OR FIRST HEARING DATE)

20/09/2021

LITIGATION TYPE

Access to Justice, Corporate Accountability, Constitutional and Human Rights / State Accountability

SUBJECT MATTER

Costs, Environmental harm, Statutory Duty

REVIEW TYPE

Judicial Review

SUMMARY

Environment Victoria challenged the Victorian Environment Protection Authority (EPA)’s decision to grant new licence conditions for coal power stations. The EPA did not impose conditions relating to the emission of carbon dioxide or other greenhouse gases.

Environment Victoria argued that the EPA was required but failed to consider: (a) ‘principles of environmental protection’ in the Environment Protection Act 1970; (b) climate change considerations identified in the Climate Change Act 2017; (c) State environment protection policy; and (d) discussions and resolutions of a conference convened under the Environment Protection Act 1970.

First, Gorton J held that the EPA was not required to consider the principles of environmental protection as not mandatory considerations. But even if these were mandatory considerations, the EPA nonetheless had regard to these principles. These principles were: integrating economic, social and environmental considerations, precaution, intergenerational equity, and improved valuation, pricing and incentive mechanisms. Second, Gorton J held that while the climate change considerations were mandatory considerations, that the EPA had proper regard to these considerations. The EPA was only required to consider the impacts of climate change ‘relevant to’ its decision. This decision was to regulate pollutants, rather than to impose limits on greenhouse gases. Third, Gorton J held that the State environment protection policy was not a mandatory consideration. In any event, the EPA did not fail to have regard to policy in making its decision. Finally, Gorton J found that the EPA was obliged to take into consideration discussions, resolutions, and conclusions from a conference convened. Conference material relating to greenhouse gas emissions. His Honour held that the EPA did have regard to these discussions and resolutions.

This was the first test case for the Climate Change Act 2017 (Vic). It was also the first case challenging the regulation of air pollution from coal-burning power stations in Victoria.

In the costs judgment, the court found that the ordinary rule that costs should follow event should still apply in circumstances of case.

CASE DOCUMENTS

S ECI 2021 03415 Environment Victoria Inc v AGL Loy Yang Pty Ltd
Environment Victoria Inc v AGL Loy Yang Pty Ltd & Ors [2022] VSC 814
Environment Victoria Inc v AGL Loy Yang Pty Ltd (No 2) [2023] VSC 86