Victoria's environment regulator sued by advocates over alleged failure to limit emissions

© Provided by The Guardian Photograph: Bloomberg/Bloomberg via Getty Images

Environmental advocates are suing Victoria’s environment regulator in the supreme court for allegedly failing to limit carbon and toxic air pollution.

The non-profit group Environment Victoria lodged the case – which also names energy companies AGL, Energy Australia and Alinta as defendants – on Thursday morning and said it would be the first test of climate laws passed in the state in 2017.

Under the state’s climate act, government agencies are required to take climate change into consideration when making decisions.

Environment Victoria will argue the state’s Environment Protection Authority failed to do this when it renewed the licences of the Loy Yang A, Loy Yang B and Yallourn power stations earlier this year without forcing them to lower their greenhouse gas emissions.

The case will also argue the regulator is not complying with Victoria’s environment protection act by demanding industry adopt best practice to limit toxic air pollutants, including mercury, sulphur dioxide, oxides of nitrogen and particulates.

The three Latrobe Valley power stations are responsible for about 40% of Victoria’s emissions.

Environment Victoria’s chief executive Jono La Nauze said the EPA had failed to set any limit on greenhouse gas emissions when it renewed the licences for the stations in March.

“Firstly, it’s 2021 and we argue that is ludicrous. But we also argue it’s unlawful,” La Nauze said.

When it came to toxic pollutants, La Nauze said Environment Victoria would argue the permitted limits were too high when compared to similar power stations overseas, and that best practice was not being enforced by demanding the adoption of pollution control technologies used in states such as New South Wales.

The case against the Victorian EPA is part of a growing push from the environment movement to test action on the climate crisis by governments and companies in court.

In May, the federal court found Australia’s environment minister, Sussan Ley, had a duty of care to protect young people from the climate crisis after legal action taken by teenage activists.

More recently, bushfire survivors in NSW took successful action against that state’s EPA, with the land and environment court finding the regulator had a duty to take actions to develop policies that would protect the environment from climate change.

La Nauze said Environment Victoria took some hope from the successful action in NSW as well as the NSW government’s decision not to appeal the ruling.

“What’s really behind all of this is that people are experiencing escalating climate impacts, they’re concerned about the future their children face and yet they’re seeing governments drag the chain,” he said.

Environment Victoria is being represented by lawyers from Environmental Justice Australia. The firm’s principal lawyer, Nick Witherow, said the case was in the public interest.

“It’s vital that our laws are applied as intended – to protect community health and our environment and reflect developing community expectations,” he said.

Companies are also under increasing pressure from their own shareholders to align their business with globally agreed targets to limit global heating.

On Wednesday, more than half of AGL’s shareholders backed a resolution demanding stronger carbon reduction goals.

The company is Australia’s largest greenhouse gas emitter.

The Victorian EPA declined to comment on the action before the courts.

AGL, which owns the Loy Yang A power station, said because the matter was before the courts it could not comment on the specifics of the case.

“As Australia’s largest energy generator and greenhouse gas emitter, we understand and acknowledge our significant role in the energy transition and are committed to ensuring this is done responsibly, balancing Australia’s current and future energy needs with the commitment to decarbonise,” a spokeswoman said.

A spokesman for Energy Australia, which owns the Yallourn power station, said the company had a strong record of environmental compliance and “a commitment to continuous improvement”.

“Our approach is aimed at balancing care for the environment, meeting community standards, and having our power stations serve their important role of powering homes and businesses,” he said.

Alinta Energy, the owner of Loy Yang B, declined to comment.

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