Australian coal-fired plant sued for carbon emissions

The increasing legal risk faced by carbon-intensive firms worldwide was underlined this week with the news a coal-fired power plant in Australia is to face the country's first legal challenge against a company's carbon emissions.

Green group Rising Tide earlier this week lodged a civil court action against the government-owned Bayswater power station, which is one of the largest greenhouse gas emitters in New South Wales (NSW). The action could result in stricter emission laws nationwide, according to environmental lawyers Down Under.

Rising Tide members Peter Gray and Naomi Hodgson allege in court filings that the plant's operating company, Macquarie Generation, is "negligently disposing of waste at [its] Bayswater power station by emitting carbon dioxide into the atmosphere in a manner that has harmed or is likely to harm the environment", thereby contravening the NSW Protection of the Environment Operations Act 1997.

The act is the state's primary environmental protection legislation, but there are no provisions in NSW or nationally that control carbon emissions. However, companies that generate other pollutants require a licence to do so.

The case is set to be heard at NSW Land and Environment Court, with an initial directions hearing – an informal court appearance – slated for 21 August.

Kirsty Ruddock, a lawyer from the NSW environmental defender's office, told Australia's Lateline TV news programme that the case could lead to stricter emission laws nationwide.

"At the moment… there is no regulation of carbon dioxide and what we are trying to do is say that carbon dioxide is a waste or a pollutant and it should therefore be regulated, because otherwise [Macquarie Generation is] breaching the pollution laws by emitting it," said Ruddock.

The defendant's office plans to call expert witnesses to argue that carbon emissions constitute waste and thus should be regulated under state environmental laws, which require companies to have a licence to pollute.

The Bayswater plant, which has a capacity of 2.64GW, emits an estimated 19 million tonnes of greenhouse gases annually, according to Carbon Monitoring for Action. Rising Tide's Gray claims that the power station's emissions are unlicensed and unregulated and thus have breached state environment laws for more than a decade.

He told the Sydney Morning Herald: "The reason we are doing this [court action] now is that the NSW government is looking at expanding Bayswater. "

In response to the lawsuit, a Macquarie Generation spokesman told the Herald: "Bayswater is one of the most efficient and cleanest coal-fired power stations in Australia, and it operates within its development approval and environmental operating licence."

The case echoes successful efforts by green groups in the US to have carbon dioxide classified as officially harmful to human health – a decision that paves the way for carbon emissions being regulated under the existing Clean Air Act if the Obama administration fails to succeed in its attempts to pass a specific climate change bill.