By Monique Choy
and Julie Beesley
After a long battle which pitted the NSW government against an environmental activist, the "greenie" lost, showing the direction pollution licensing in NSW is likely to take in the future.
The controversial test case, which ended last week, vindicated the Environment Protection Authority's pollution licensing process, and the court's decision was hailed as a victory for the Liberal Environment Minister Chris Hartcher.
The environmentalist who took the case to the court, Alexander "AJ" Brown claimed the EPA had issued an invalid licence to the Associated Pulp and Paper Mills (APPM), in Shoalhaven. This licence was part of a policy which Brown claimed "moved the goal posts" in pollution licensing and gave APPM a licence to pollute at any level it wished.
In 1991, APPM was licensed to pump into the Shoalhaven River fourteen times the intensity of pollution previously allowed.
The case was a long and complex one, combining untested legislation, a long history of poor pollution control and a contentious new concept — "prosecutable reality".
"Prosecutable reality" licences a higher level of pollution than was previously legal. Each licence is accompanied by a pollution reduction program (PRP). Under the PRP, companies are obliged to reduce their pollution levels within a specified time frame.
The history of "prosecutable reality" goes back to 1990 when the then environment minister, Tim Moore, devised it as a response to the dubious pollution licensing system of the State Pollution Control Commission, now incorporated into the EPA.
Moore claims that the previous licensing system was unrealistic because pollution standards were then too strict for industries to comply with. Moore told Green Left that "prosecutable reality" followed the discovery that pollution licences had not been issued on the grounds that they were capable of legal enforcement. This was in fundamental conflict with what was supposed to be a legally enforceable pollution statute.
He criticised the old system, under which ministers were able to override the law with "ministerial exemptions" for particular companies, allowing them to pollute more than was legal. "I did not consider it appropriate that the ministerial exemption system was not publicly accountable", says Moore.
So he decided to make some changes. In March 1990, Moore issued a ministerial memorandum which said licence limits must be set to "reflect an immediately achievable reality". This was to be coupled with the pollution reduction program.
In effect, "prosecutable reality" was intended to make it easier to prosecute corporate polluters who had previously been let off, when they claimed that the pollution standards of their licence were too strict to comply with. In 1991, APPM was licensed to pump into the Shoalhaven River fourteen times the intensity of pollution previously allowed.
The environment movement, however, has always been sceptical of the policy. Sue Salmon, NSW campaign coordinator of the Nature Conservation Foundation says, "the problem with prosecutable reality is that those who haven't done the right thing have been rewarded, their licences have gone up to match the amount of pollution they have put into the environment".
In APPM's case, James Johnson, Brown's solicitor, argued that under "prosecutable reality", the EPA monitored APPM's discharges over six months and then simply set the licence level for the maximum amount recorded.
In the Land and Environment Court last week, the chief judge, Justice Pearlman, agreed that the rise in allowable pollution levels was large. However, she found that the EPA had complied with the EPA Act by imposing the Pollution Reduction Program and so the licence was valid. She found it was beside the point to argue that the program was vague and uncertain because it was only the "purpose" of the program that mattered.
Justice Pearlman refused to take up Brown's invitation to find that the APPM licensing decision was so "unreasonable" that the court should strike out the licence even though the EPA claimed to have considered pollution reduction.
Legal experts say that the judgment was very cautious, as Justice Pearlman had avoided the invitation to use this as a test case to establish a precedent for the role of future licensing.
Pollution licensing in NSW has along history of lax enforcement. Brown says that the new system of "prosecutable reality" must be viewed in the context of the Authority's poor record to date. Although the new licences are an improvement on the old system, the general approach to pollution control is as staid as ever.
According to Brown: "Unless we are prepared to take things back to the fundamental principles (of environment before profit) the government will quite happily go on licensing people to do whatever they want till the cows come home."
Bill Train, the EPA's director of operations, policy and licensing, says that "prosecutable reality" hinges on a pollution reduction timetable to which industry must comply. "The timetable has to be enforceable to ensure the program has credibility in the public eye and credibility within industry too", he said.
However, Brown is suspicious of the EPA's priorities. "The EPA's got this history as a body that was set up to manage the conflict between industry and the environment rather than actually protect the environment."
A spokesperson for the Australian Conservation Foundation asserts, "It is truly sobering to reflect that the State Pollution Control Commission never overtly refused any application to pollute NSW."
"The EPA's got this history as a body that was set up to manage the conflict between industry and the environment rather than actually protect the environment."
This situation was highlighted by Greenpeace findings on Caltex (Botany) and BHP (Port Kembla). In the case of BHP, it was found that despite a pollution abatement program set in 1973, the company had not met its reduction targets by 1990, and nothing had been done to enforce these targets.
The environment movement is cynical about the EPA's commitment to enforcing the pollution reduction programs and sees "prosecutable reality" as just giving companies a free hand to pollute.
Although disappointed with the verdict in the APPM case, Brown says a positive outcome of Pearlman's judgment was to establish under the new legislation the right of members of the public to take proceedings against polluters.
New legislation passed in December last year allows a private citizen with no direct interest in the case to take proceedings against bodies causing harm to the environment. Brown was the first to test this legislation, and the judgment reinforced the public's role in the pollution policing process.
Brown says, "it was important in many ways that the first proceedings were against the EPA because it shows that it is even more necessary now that people go out and conduct prosecutions themselves, because it is very clear that the EPA is not going to do it, they've just moved the goal posts to avoid having to prosecute people."
This will become the focus for the environment movement's planned actions in the future. So, to educate the community about the issues, they are campaigning for community right-to-know provisions.
Green groups point to the system used in the United States where community right-to-know principles were entrenched in environmental legislation introduced in 1987. Data bases have been set up into which companies must enter what, and how much they pollute.
This legislation has proved very effective, for example on the eve of the release of the data base system in 1987, Monsanto Corporation pledged to reduce 90% of its toxic emissions. In the last five years, releases of toxic emissions from companies have been cut down by 20%.
At present the second stage of Australian EPA legislation is being developed, and environmental groups want to see the inclusion of right-to-know legislation here.
The EPA have just moved the goal posts to avoid having to prosecute people.
"We'll be looking for public involvement in the setting of licence standards and a firm basis for enforcing pollution reduction programs in the new pollution legislation when it is introduced", says Brown's lawyer James Johnson.
A system of bonds to be paid by companies in case of breaches in licences has also been suggested as a more effective means of enforcing pollution regulations.
Neil Sheppard, director of the EPA said: "Stage 2 will let us do a lot of things; it will set the framework for how we tackle environmental protection over the next decade".
With this in mind environment groups are gearing up for a fight to get their ideas on environmental protection into the legislation. If their side is ignored, Greenpeace has hinted they may be forced to take more dramatic action.
With industry, government and environment groups all bickering over Stage 2 developments, the new legislation scheduled to go to the NSW Parliament early next year is sure to have a difficult birth.
A spokesperson for the ACF has said, "judging by the Authority's record to date, environmentalists have reason to be sceptical of the Authority's ability to achieve its critical objectives and to meet the valid aspirations of an increasingly vigilant community — a community that is seeking and expecting true environmental protection." n