31 October 2022

Reflections on the Coal Pollution Case from Senior Lawyer Charley Brumby-Rendell.

Last week, I sat in the Supreme Court for three long days, alongside our small but mighty legal team and client. Before the judge’s vast, carved wooden bench, we made our arguments – for the health of the community and for the climate.

On the other side of the room: four defendants’ worth of legal teams acting for the biggest polluters in the state and the EPA, and another three rows behind them filled with lawyers, advisors, and the media teams of these massive energy companies.

Five years of work, months of preparation: this was the final ascent.

When I think about the beginning, it feels like another lifetime. Before Covid, before the 2019-2020 bushfires, before the relentless floods we’ve seen this year. What would become the #CoalPollutionCase began five long years ago, with a damning report EJA released in 2017 about the inadequate regulation of coal fired power stations by our federal and state governments.  

It confirmed what communities had been telling us for years: they were – and still are – dealing with the life-long health consequences of breathing toxic air. They were often kept in the dark about the decisions that would impact them. They were being let down by our governments, who have the job, and the power, to hold polluters accountable.  

The same year we released our report, the Victorian EPA began reviewing the pollution licences of three Latrobe Valley coal power stations.   

With our friends – and later, clients – Environment Victoria, we made the EPA conduct its licence review for Victoria’s coal power stations publicly. We made sure they made space for those most impacted by coal pollution to have their say. 

Together, we supported almost 500 community members to participate in the process. Community members made hundreds of submissions on the impacts – submissions that we used in court just last week to help us argue our case. 

In March, 2021, the EPA made their decision about the power station licences. They chose to set no limits on greenhouse gas emissions, and scarce limits for other dangerous pollutants that cause serious harm to people’s health – like sulfur dioxide, mercury, and fine particulate matter (PM2.5). 

The next step was obvious. On behalf of Environment Victoria, we took the EPA, and the three biggest power station operators responsible for the pollution, to court.  

For many months, we worked tirelessly to prepare for the case and fight for communities impacted by coal pollution. Because that’s who this is about, really: the people who have powered our state for decades, who deserve clean air to breathe, who deserve to know that their children, friends and neighbours will be free from the health impacts of coal pollution. 

Last week, we went to court.  

We argued that the EPA failed to properly consider several factors when they made their decision, including community feedback, impacts of climate change, and many key principles of environmental protection. See our full argument and more background on the case here. 

One of the most profound parts of all of this, for me, was the EPA’s failure to consider how climate change compounds air pollution.  

As we know, climate change increases the likelihood of severe bushfires – bushfires which produce huge quantities of smoke, containing toxic pollutants like fine particulate matter.  

For the Latrobe Valley community, it means breathing in even more dangerous air pollution. 

A changing climate means the context in which power stations operate is changing, too. When governments and the EPA are making decisions about things that have a real, serious impact on communities, there’s no good reason why climate change isn’t a central consideration. 

Now, we wait for the judge to make his decision. The outcome of this case could set some incredible precedents for how the impacts of climate change are grappled with in government decision making, coal pollution control, community consultation, and environmental protection in Victoria.  

The #CoalPollutionCase was the first case to test Victoria’s key climate change legislation, the Climate Change Act 2017, and the first to challenge the regulation of air pollution from Victoria’s coal-burning power stations. 

If we win, the EPA’s decision to let power stations get away with emitting dangerous levels of greenhouse gases and toxic chemicals could be scrapped – and they could have to remake the decision in accordance with the law.  

 On behalf of all of us at EJA, thank you. Game changing litigation like this is only possible because of the thousands of people just like you who care about building a just future together – a future that’s safe and healthy for all of us, no matter whether we live in the Latrobe Valley, the heart of the city, or anywhere in between.  

Cases like these push our governments to do better and put communities, not corporations, first. While we wait for the outcome of this case, we know there’s plenty of work to do to hold corporations to account and win strong, effective protections for communities and our environment.  

 As always, we’re up for the challenge.