Key Points:
Environment Protection Licence conditions will not be
easily implied, and in any event must be consistent with the
statutory licensing regime under which the licence was
created.
Environment protection licence-holders now have more certainty
about what their licence conditions are, after the NSW Court of
Appeal has struck out a climate change action group's attempt
to imply restrictions on coal consumption and limits on
CO2 emissions in a power station's licence
(Macquarie Generation v Hodgson [2011] NSWCA 424; Clayton Utz acted
for Macquarie Generation in the proceedings).
Peter Gray and Naomi Hodgson, two members of the action group
known as Rising Tide, claimed that the Environment Protection
Licence (EPL) issued to the Bayswater Power Station's operator,
Macquarie Generation, is subject to implied statutory restrictions
that limit permissible CO2 emissions into the atmosphere
and restrict coal consumption at the Power Station.
