The state's top environmental regulator is being taken to court, accused of failing to consider a "litany" of environmental breaches Whitehaven's Maules Creek Coal mine in Narrabri has committed in the past eight years.
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It is the first time a court has been asked to determine what the NSW Environment Protection Authority's (EPA's) responsibilities are when it comes to regulating greenhouse gas emissions caused by coal mining and could have implications for major coal and gas projects across NSW.
Lawyers from the Environmental Defenders Office (EDO) will argue the EPA failed to consider all of the pollution generated by the mine and its environmental and public health impacts before renewing its licence to operate until 2043.
"If the judge rules in our favour, it will mean the EPA will have to go back and do the review of Whitehaven's Maules Creek mine's Environment Protection License in accordance with guidance from the judge," EDO director of legal strategy Elaine Johnson said.
![Whitehaven's Maules Creek Coal mine was recently granted permission to extend operations until 2044, nine years after its initially-approved decommissioning date. Picture file Whitehaven's Maules Creek Coal mine was recently granted permission to extend operations until 2044, nine years after its initially-approved decommissioning date. Picture file](/images/transform/v1/crop/frm/3ArTPYWJ7uTzcYp6Sg47gg6/703dd4dc-26b7-4a8e-9496-e837e7e61d87.jpg/r0_0_2560_1701_w1200_h678_fmax.jpg)
The EDO also represented climate action group Bushfire Survivors for Climate Action in their landmark case in 2021 which compelled the EPA to develop a policy to protect the environment from climate damage.
"That case was at a policy level, and in this case we're saying at an individual project level the EPA has to practise what it preaches, and implement the climate policy it developed on the ground at a practical level," Ms Johnson said.
The EPA was contacted for comment but did not respond by deadline.
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The case will be brought to the NSW Land and Environment Court next month on behalf of the Maules Creek Community Council (MCCC), which was formed in 2010 in opposition to coal mining operations in the Leard State Forest.
MCCC spokesperson Ros Druce said the Maules Creek Coal mine doesn't deserve its Environment Protection License because the mine has "frequently and flagrantly breached various environmental laws and licence conditions".
Since 2015 the mine has been issued with at least 13 environmental orders and penalties of various types, resulting in more than $750,000 worth of fines.
We believe Maules Creek Coal Mine has proven by this record of non-compliance that it is not a fit and proper entity to hold an environmental licence under the terms of the Protection of the Environment Operations Act, Ms Druce said.
But the case doesn't end there, Ms Johnson says she wants the court to officially recognise the EPA's role in ensuring the health of our environment, our climate, and our local communities when it reviews licences.
"In addition to asking the court to consider Whitehaven's history of non-compliance with environmental legislation, we're also arguing the EPA failed in its duty to properly assess the impacts of the mine on air pollution and importantly methane emissions," Ms Johnson said.
"We know that methane is many times more potent than CO2 in trapping heat, and it's emerging as a really key issue that regulators on the ground, including the EPA, aren't taking into account."
The same coal mine faces a similar challenge in Federal Court as the Environment Council of Central Queensland pursues environment minister Tanya Plibersek for refusing its request to reconsider the full scope of climate impacts from mining projects.
While the suits are operating on different levels, they share a general purpose: testing the limits of new environmental legislation designed to restrict climate impacts caused by fossil fuels.
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