Macintosh, Andrew; Roberts, Heather; Constable, Amy --- "An Empirical Evaluation of Environmental Citizen Suits under the Environment Protection and Biodiversity Conservation Act 1999 (Cth)" [2017] SydLawRw 4; (2017) 39(1) Sydney Law Review 85

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Since the early 1970s, many jurisdictions have broadened legal standing rules to encourage environmental citizen suits and improve compliance with public rights. Although now widely adopted, expanded standing provisions are frequently criticised on the grounds they can give rise to significant social costs. This article sheds light on the costs associated with expanded standing provisions by evaluating the impacts of citizen suits taken under the Australian Government’s principal environmental statute, the Environment Protection and Biodiversity Conservation Act 1999 (Cth). The results suggest the social costs of citizen suit activity under the Act over the period 2000–2015 were negligible. Environmental citizen suits were seldom taken and rarely won; the substantive effects of successful suits were often nullified by subsequent executive action; and the suits generally had negligible or minor effects on project timelines.

I Introduction

Whether third parties should have standing to initiate legal proceedings in civil courts to uphold public environmental rights has been fiercely debated since at least the early 1970s, when Joseph Sax helped persuade the Michigan Legislature to include an open standing provision in its Environmental Protection Act of 1970.^[1] The traditional view in common law countries has been that access to civil courts to uphold public environmental rights should be limited to the Attorney-General of the relevant jurisdiction and those who suffer ‘special damage’ from the infringement of the right or have a ‘special interest’ in the subject matter of the proceedings.^[2] Sax’s proposal was to do away with these restrictions and allow anybody to initiate judicial review or civil enforcement proceedings to uphold environmental laws.^[3] It was hoped this would democratise executive decision-making processes and provide a partial remedy for the perceived systemic under-enforcement of public environmental rights by captured and poorly resourced Attorneys-General and regulatory agencies.^[4]

Australia was an early, though somewhat inconsistent, adopter of expanded standing provisions in environmental legislation. New South Wales introduced open standing provisions in its heritage and planning legislation in the late 1970s.^[5] However, as Mossop has commented, ‘until 1991 there were no workable citizen suit provisions covering the State’s pollution laws’.^[6] Similarly, at the federal level, expanded standing provisions were included in a number of pieces of environmental legislation from the early 1980s, including the World Heritage Properties Conservation Act 1983 (Cth) and Endangered Species Protection Act 1992 (Cth). Yet they were omitted from the federal environmental assessment and approval legislation until July 2000, when the Environment Protection (Impact of Proposals) Act 1974 (Cth) was replaced by the Environment Protection and Biodiversity Conservation Act 1999 (Cth) (‘EPBC Act’).^[7] The EPBC Act does not grant open standing; it allows individuals and organisations to initiate judicial review and civil enforcement proceedings provided they have ‘engaged in a series of activities for protection or conservation of, or research into, the environment at any time in the 2 years immediately before’ the conduct or proposed conduct.^[8]

Although now widely adopted, expanded standing provisions have always had their critics.^[9] The most common objection is that they will ‘unleash a flood of litigation’^[10] by ‘busybodies’ and ‘intermeddlers’.^[11] Opponents also argue that they are inconsistent with traditional governance structures, that courts are not technically suited to resolving environmental disputes and that the resulting litigation obstructs and delays development.^[12] Not surprisingly, the primary opponents have tended to be regulatory agencies who fear a loss of power, and business interests who fear the potential interference and costs associated with ‘environmental citizen suits’.^[13] Environmental citizen suits are proceedings initiated by private parties to uphold public rights for the dominant purpose of generating public environmental benefits.^[14]

In Australia, commercial pressures and environmental citizen suits associated with the millennium mining boom have renewed calls from business interests for standing rights and citizen suit subsidies to be curtailed, and prompted federal and state proposals to wind them back. Possibly the most controversial of these was the Australian Government’s Environment Protection and Biodiversity Conservation Amendment (Standing) Bill 2015 (Cth), which sought to limit the scope for judicial review under the EPBC Act to the more traditional ‘person aggrieved’ by an administrative decision. This proposal stemmed directly from a successful environmental citizen suit concerning the massive Carmichael mine project in the Galilee Basin in central Queensland.^[15] If passed, it would have limited standing in judicial review proceedings to ‘a person whose interests are adversely affected by the decision’;^[16] a verbal formula that has been interpreted as requiring an applicant to demonstrate that they have an interest that is greater than, and possibly ‘well above’, that of an ordinary member of the public.^[17]

Whether this would have had the intended effect of reducing the amount of environmental citizen suit activity is unclear, as the judiciary has shown an increased willingness to grant standing to environment groups under the ‘person aggrieved’ and common law ‘special interest’ tests since the High Court’s 1980 decision in Australian Conservation Foundation Inc v Commonwealth.^[18] However, the Government’s desire to pursue this proposal, and the strength of the opposition to it, highlight the continuing relevance of the debate about the merits of liberal standing rules and the citizen suits they ‘unleash’.

From a utilitarian perspective, whether citizen suit activity should be enabled through liberal standing rules, and actively encouraged through the provision of subsidies and other measures, turns on whether the associated social benefits outweigh the costs.^[19] No study has ever explicitly sought to empirically evaluate this issue, a situation that is undoubtedly attributable to the difficulty in quantifying the costs and benefits. The existing empirical literature on environmental citizen suits focuses on two issues: their frequency under regulatory regimes with expanded standing provisions; and applicant legal success rates.^[20] Studies on the former indicate that, even with expanded standing provisions, environmental citizen suits are relatively infrequent. There is, however, variability between jurisdictions and through time, suggesting citizen suit activity is a function of more than simply standing requirements.^[21] The small literature on success rates suggests applicants in environmental citizen suits lose more than they win but the win:loss ratios are broadly comparable with other types of private suits.^[22]

The findings from the literature cast doubt on the claims liberal standing rules lead to a flood of frivolous litigation. This provides policymakers with greater confidence about the magnitude of the social costs that might stem from liberal standing rules and related citizen suit activity. This article extends the existing empirical literature by evaluating two further issues that provide insights on the social costs of citizen suits: the extent to which the executive reverses the substantive effects of legally successful citizen suits; and the extent to which citizen suits cause delays.

Our analysis looked at environmental citizen suits initiated under the EPBC Act over the period 16 July 2000 to 31 December 2015 (‘the study period’). Four issues were evaluated: the frequency of citizen suits; legal success rates; the extent to which the substantive effects of successful environmental citizen suits were reversed by subsequent executive action; and the extent to which environmental citizen suits caused project delays.

The balance of this article is set out as follows. Part II provides background information on the EPBC Act and its administration. Part III describes the method used to evaluate the extent and impact of environmental citizen suits taken under the EPBC Act and Part IV presents the results. Part V discusses the results and Part VI provides a conclusion.

II Background Information on the EPBC Act

The EPBC Act is an omnibus environmental statute formed by amalgamating and updating a number of previous environmental statutes that covered environmental assessments, Commonwealth reserves, World Heritage areas, endangered species, whale conservation and wildlife trade. The legislation is divided into two broad parts: the environmental impact assessment and approval (‘EIAA’) provisions and the non-EIAA provisions.^[23]

A EIAA Provisions

The EIAA provisions are the centrepiece of the legislation and are designed to protect the environment on Commonwealth land, the environment generally where the relevant action is carried out by a Commonwealth agency or on Commonwealth land, and nine ‘matters of national environmental significance’.^[24] The EIAA process is relatively standard in format, containing prescribed screening (known as the ‘controlled action decision’),^[25] assessment and approval steps. The innovative aspect of the EIAA provisions is the manner in which their application has been restricted to reflect the division of responsibilities between the Commonwealth and the states and territories.

Traditionally, the states and territories have had primary responsibility for land-use planning and environmental regulation. In the 1970s and 1980s, this dominance was challenged as the Commonwealth increasingly involved itself in environmental matters.^[26] After a period of federal–state conflict over the spheres of responsibility, an agreement was reached that the Commonwealth’s EIAA regime would only be triggered by actions involving Commonwealth agencies and Commonwealth land or that could have a significant impact on seven listed matters of national environmental significance.^[27] This agreement provided the basis for the design of the EIAA provisions. Since the legislation commenced in July 2000, the Commonwealth has added to the list of matters of national environmental significance on two occasions, but the principle that the EIAA provisions should be limited in scope to specific areas of Commonwealth responsibility remains intact.

Over the study period, 5495 actions were referred under the EIAA provisions (Appendix A, Table A1). Almost 60% of these came from four sectors: urban development (commercial and residential) (23%); mining (14%); land transport infrastructure (road and rail) (10%); and tourism, recreation and natural resource management (10%). Over five thousand (5121) decisions were made in relation to whether the referred actions required formal assessment and approval under the legislation (controlled action decisions). The majority of the referred actions in which decisions were made were deemed not to require formal assessment and approval (‘not controlled actions’): 51% without any restrictions and 20% if they were carried out in a ‘particular manner’. The remaining 30% (1516 actions) were declared to be controlled actions, meaning they proceeded to formal assessment and approval. In addition to the controlled action decisions, nine referred actions were deemed to be ‘clearly unacceptable’, the result being that they were refused approval prior to formal assessment. Eight hundred and forty-four (844) final approval decisions were made over the study period. Six of these were set aside by judicial decisions, leaving 838 valid approval decisions. Of these, 827 were to approve the referred action and 11 were refusals. Conditions were imposed on all but 13 of the approved actions.

B Non-EIAA Provisions

The non-EIAA provisions concern international trade in wildlife and wildlife products, the taking of protected species in Commonwealth areas, and the creation and management of Commonwealth nature reserves (marine and terrestrial). Unlike the EIAA provisions, most of the activities regulated under the non-EIAA provisions do not involve fixed development. The regulated activities relate primarily to wildlife interactions and wildlife trade and involve such things as interactions with cetaceans, interfering with protected species in Commonwealth areas, and the import and export of native species, CITES-listed species (species listed under the Convention on International Trade in Endangered Species of Wild Fauna and Flora)^[28] and products derived from protected species.

The administration of the non-EIAA provisions of EPBC Act is not as transparent as the EIAA provisions, with less information being available on applications for approvals and decision-making. Despite this, the accessible information suggests hundreds of thousands of administrative decisions were made under these provisions over the study period. Most of these decisions appear to have been relatively uncontroversial. For example, between July 2003 and 30 June 2015, approximately 290 000 wildlife trade permits were issued under Part 13A of the legislation, 255 888 of which were personal accompanied baggage permits (Appendix A, Table A3). Applications for these types of permits are rarely contentious and they tend to be dealt with as a matter of routine by the relevant regulatory agencies.

While most non-EIAA related decisions tend to be routine, the provisions cover a number of complex and contentious issues. For example, wildlife trade permits concerning live specimens often give rise to controversy, a reality reflected in the fact that a number of the administrative decisions made in relation to them were subject to judicial and merits appeals.^[29] Decisions made in relation to the live import list maintained under pt 13A can also be contentious because of the presence of conflicting interests. There are business interests that want particular species to be included on the list to facilitate economic activity and trade (no live specimen can be imported into Australia unless it is included on the list), while conservation interests tend to oppose live imports because of the potential adverse environmental impacts of introduced species. Over the study period, the live import list was amended 109 times and 11 applications for amendments were refused; one of which was appealed to the Federal Court of Australia.^[30] Wildlife program approval decisions give rise to similar tensions because they concern the exportation and importation of native specimens and CITES-listed specimens. Over the period

2004–05 to 2014–15, over 500 new approval and variation decisions were made in relation to these programs (Appendix A, Table A4), several of which triggered merits appeals to the Administrative Appeals Tribunal.^[31]

III Scope and Methods

A Defining Environmental Citizen Suits

As noted above, environmental citizen suits can be defined for these purposes as legal proceedings initiated by private parties to uphold public rights for the dominant purpose of generating public environmental benefits. There are four operative parts of this definition. First, the proceedings must be taken by a private party, rather than a government actor or agency. Second, the proceedings must be legal — they must involve an application for the exercise of judicial power. Third, the proceedings must concern public, rather than private, rights. Finally, the dominant purpose behind the proceedings must be a desire on behalf of the applicant to generate ‘public environmental benefits’, or environmental benefits that the general public cannot practically be excluded from enjoying.

B Citizen Suits from a Utilitarian Perspective

The pros and cons of environmental citizen suits, and the liberal standing rules that facilitate them, have been evaluated from a deontological perspective on numerous occasions.^[32] For the purposes of this study, we adopted an exclusively utilitarian frame — meaning we were interested only in their consequential effects on social wellbeing. This is not intended to imply the deontological arguments for and against environmental citizen suits are invalid, only that they are outside of the scope of the study.

The focus on the consequential effects of citizen suits requires consideration of their social costs and benefits. The social costs of environmental citizen suits refer to any decreases in social wellbeing they cause. More specifically, they are the benefits (increases in social wellbeing) forgone as a consequence of the proceedings. The most obvious costs are those associated with the resources devoted to the proceedings: the benefits forgone by applying labour and capital to fight and defend the citizen suits, rather than using them for an alternative purpose. When placed in the context of the broader economy, these direct litigation costs are relatively insignificant. They will often be significant to the parties involved, but not of great importance to the wellbeing of society as a whole. At a societal level, the costs that matter most are the potential welfare losses (relative reductions in social wellbeing) that arise when citizen suits stop or delay development.^[33] Consistent with this, research on Australian environmental approval processes suggests delay costs are often of the same magnitude as compliance costs and, for capital-intensive projects, they can be the major source of approval-related costs.^[34] Given this, it is logical for those interested in the social costs of environmental citizen suits to pay particular attention to consequential project terminations and delays.

The social benefits of environmental citizen suits refer to the increases in social wellbeing they produce. These benefits come in two general forms: democratic and environmental. One of the main aims of liberal standing rules is to promote the rule of law. Citizen suits do this both directly and indirectly. Directly — by enabling courts to restrain breaches of, and compel compliance with, public environmental rights. Indirectly — by increasing the probability that those who contravene public rights will be held to account in a court of law, which in turn promotes compliance, even in the absence of proceedings.^[35] A further benefit of citizen suits is that they can prompt governments and private entities to open up decision-making processes to allow meaningful third-party participation.^[36] In addition, environmental citizen suits can reduce legal uncertainty by filling gaps in the law and clarifying ambiguities.^[37] The added legal clarity can reduce transaction costs for businesses and the community. The democratic benefits of citizen suits refer to the increases in wellbeing that stem from these rule of law, participatory and legal certainty effects.

Table 1: Channels by which citizen suits can bring about positive environmental

Channel	Description
Direct
Court relief	The court upholds the applicant’s claim and issues relief that: protects a particular site from development; imposes more stringent requirements on a proposed or ongoing activity; orders a proponent of an activity to adhere to regulatory requirements; or compels a government body to improve its environmental policies.
Delay renders the project financially unviable	The suit delays commencement of a development proposal or obstructs the continuation of an ongoing activity, which affects the financial viability of the project and results in its abandonment or modification, even if the applicant’s claim is partially or wholly legally unsuccessful.
Indirect
Loss of social licence	The suit helps mobilise community opposition to a development proposal or ongoing activity, which results in the proponent voluntarily abandoning or modifying the project or activity, or the Government using its legal authority to prevent or modify the development or activity, even if the applicant’s claim is partially or wholly legally unsuccessful.
Subsequent policy change	The suit prompts government agencies and private entities to improve their environmental policies/practices and/or prompts regulators to improve enforcement of public environmental rights (eg it clarifies regulatory requirements, making enforcement easier), which affects subsequent activities that were not the subject of the proceedings, even if the applicant’s claim is partially or wholly legally unsuccessful.
Threat and compliance	The threat of citizen suits prompts regulators to improve enforcement of public environmental rights and/or motivates governments, government agencies and private entities to adhere to the law and improve their environmental policies/practices. The frequency and nature of citizen suits is likely to influence the extent to which the threat is a material consideration in relevant public and private decision-making.
Threat and participation	The threat of citizen suits motivates governments, government agencies and private entities to open up decision-making processes to allow meaningful third-party participation, which leads to improved environmental outcomes. The frequency and nature of citizen suits is likely to influence the extent to which the threat is a material consideration in prompting change.

The environmental benefits of citizen suits are the increases in social wellbeing that arise from any consequential improvements in environmental outcomes. These environmental improvements can arise through multiple channels, summarised in Table 1 above.

C Scope of the Study

Our empirical evaluation of citizen suit activity under the EPBC Act looked at four issues:

As indicated, the focus of the study was on the social costs of citizen suit activity under the EPBC Act. Each of the identified issues provides insights on these costs. The analysis of the number of cases (issue (1)) sheds light on the magnitude of the direct and indirect costs of citizen suit activity — a small number of citizen suits suggests lower costs and vice versa. Issues (2) and (3) provide insights on the extent to which environmental citizen suits give rise to welfare losses by stopping development. The analysis of delays caused by citizen suits (issue (4)) provides information on delay costs.

D Methods

Data on the frequency of legal proceedings in relation to the EPBC Act over the study period was obtained from four sources:

The identified legal proceedings were divided into two categories: judicial review and enforcement. Judicial review was defined for these purposes as the determination by a court of law of the legality of exercises of power, or purported exercises of power, by administrative decision-makers under or in relation to the

EPBC Act.^[43] Each judicial review proceeding was placed into one of the following three sub-categories: proponent private interest (proponent of an action seeking to uphold public rights for predominantly private benefit); third party private interest (third party seeking to uphold public rights for predominantly private benefit); and citizen suit.

Enforcement proceedings were defined as an action before a court of law for a remedy to prevent or punish an alleged infringement of the EPBC Act by another party. Enforcement proceedings were also placed into three sub-categories: government prosecution (government prosecution of an infringement of the law); proponent private interest (proponent seeking to uphold public rights for predominantly private benefit); and citizen suit.

To be included in the analysis of legal success rates, there must have been an interlocutory or final decision of a court that determined the matter. Proceedings were deemed to be successful if the court upheld at least one of the applicant’s grounds of review or claims of breach, even if no relief was granted. For example, the proceedings were deemed successful if an environment group initiated proceedings for an injunction to prevent a contravention of the legislation and the court held there had been a contravention, but decided on discretionary grounds not to issue an injunction. Proceedings were deemed unsuccessful if, at first instance, a court upheld at least one of the applicant’s grounds of review or claims of breach, but the decision was overturned on appeal. Proceedings were also deemed to be unsuccessful if the applicant received interlocutory relief until the matter was decided, but their application, when finally heard, was not upheld. Similarly, proceedings were deemed to be unsuccessful if an application for interlocutory relief to prevent an action from being undertaken was rejected and the proceedings were then discontinued on account of the fact that the taking of the action had rendered the application for final relief moot.

To facilitate comparisons between types of proceedings, the analysis of success rates was done for both citizen and non-citizen suits. For completeness, a separate analysis was also conducted on ‘successfully discontinued’ environmental citizen suits — being proceedings that were discontinued (prior to a determinative decision of a court being handed down) after the administrative decision in question was revoked or set aside by consent, or the project was voluntarily withdrawn or prevented from proceeding.

The potential for expanded standing provisions to result in excessive social costs partly depends on whether the Executive has the power to block, take over, terminate or reverse the effects of citizen suits. Under the EPBC Act, the Federal Government does not have the power to preclude, take over, or terminate citizen suits. However, it does have capacity to nullify their substantive effects. In successful judicial review proceedings, the outcome will usually be that the relevant administrative decision is returned to the original decision-maker to be made in accordance with the law. Ordinarily, there is no impediment to the project that is the subject of the proceedings being allowed to proceed, provided the proponent and government decision-maker adhere to the relevant procedural requirements. This is what occurred in the Carmichael coal mine case that triggered the proposal to wind back the Act’s expanded standing provisions. Two months after the Federal Court invalidated the original decision of the Minister to approve the mine, the Minister re-approved it subject to conditions similar to those included in the original approval. More than anything, the case highlighted how easily the substantive effects of successful judicial review proceedings can be undone under the legislation.

The same can be said of successful civil enforcement citizen suits under the Act: their substantive effects can be rapidly reversed if the Government deems the public interest warrants an alternative course of action. The activities that are most likely to be the subject of applications for injunctions and related orders by third parties under the EPBC Act are the failure on behalf of proponents to refer activities for approval and contraventions of conditions attached to approvals. Where a third party obtains an injunction to restrain a proponent from undertaking a development without approval, the easiest way to resolve the issue is for the proponent to refer the action to the Minister. If the Minister decides formal approval is not required, the project can be authorised to proceed within 20 business days.^[44] Similarly, where a third party obtains an injunction to restrain a breach of the conditions of an approval, the Minister can nullify the effect of the injunction by varying or revoking the condition.^[45] In short, regardless of whether successful civil suits under the EPBC Act concern judicial review or enforcement, their legal effects can swiftly be undone.

The extent to which the substantive impacts of successful environmental citizen suits were reversed by subsequent executive action over the study period was judged on the basis of whether the impugned decision was remade in a manner that wholly or partially nullified the substantive effects of the court decision on the progress and design of the relevant development proposal(s) and whether other executive powers were used to do the same. The primary aim of this part of the analysis was to assess whether the Executive ensured the actions that were the subject of successful environmental citizen suits were able to proceed. Again, for completeness, a separate analysis was conducted on whether subsequent executive action was taken to reverse the substantive effects of ‘successfully discontinued’ environmental citizen suits.

Data from three sources were analysed. First, we examined the Federal Department of the Environment and Energy’s EPBC Act public notices database for information on whether the relevant administrative decisions were remade or other discretionary powers were used to undo the substantive effects of the proceedings.^[46] Second, we reviewed the annual reports of the Federal Department of the Environment and the Director of National Parks for any information on executive actions taken in response to the proceedings.^[47] Third, we analysed the identified administrative decisions to compare the design of any re-approved action, and any attached conditions, to those associated with the original challenged decision.

Analysing whether, and to what extent, environmental citizen suits caused delays is complicated by the multiple different causes of project interruptions and difficulty in obtaining reliable information on their extent and causes. Typically, only proponents know the true extent and causes of interruptions and they are often reluctant to disclose this information to third parties. Responses from proponents can also be biased. Proponents have strong incentives to wrongly attribute delays to citizen suits and exaggerate the magnitude of the interruptions caused by citizen suits. Applicants in environmental citizen suits suffer from a reverse bias; the desire to paint their actions in the best possible light either by downplaying the negative impacts of the proceedings or claiming credit for delays that were unrelated to the proceedings. On account of these issues, the following approach was adopted:

If these other governmental authorisations are not granted before the citizen suit is concluded, it is difficult to maintain that the suit delayed or otherwise interrupted the project. For enforcement proceedings, the information considered in judging the extent of interruptions covered similar issues, including: whether the project had all relevant governmental authorisations; whether an interlocutory injunction was granted to stop the activity pending the outcome of the proceedings; and whether the proponent voluntarily stopped the activity while the proceedings were on foot. Documentary material on these issues was obtained from the EPBC Act public notices database, state and territory government approval websites, proponent websites, the annual reports of proponents, proponent announcements published by the Australian Securities Exchange (‘ASX’),^[48] and searchers of print and electronic media via Google^[49] and Factiva.^[50]

(3–12 months), or ‘substantial delays’ (greater than 12 months, including instances where the project was indefinitely delayed). A subjective confidence qualifier was assigned to each assessment: ‘low’, ‘medium’ and ‘high’. This approach was based on the protocols devised by the Intergovernmental Panel on Climate Change (‘IPCC’) for the treatment of uncertainties in its fifth assessment report.^[51] We rationalised the IPCC’s confidence categories from five to three for simplicity.^[52]

IV Results

(1) Frequency of Environmental Citizen Suits

One hundred and twenty-nine legal proceedings were identified as having been initiated under, or in relation to, the EPBC Act over the study period (Table 2).

Of these, 44 (34%) were citizen suits. Thirty of the 44 citizen suits were judicial review proceedings, with the remaining 14 being civil enforcement actions.

The identified legal proceedings were reasonably evenly divided between the EIAA and non-EIAA provisions: 46% of the proceedings concerned the EIAA provisions and 54% related to the non-EIAA provisions. In contrast, the environmental citizen suits were skewed strongly toward the EIAA provisions:

43 of the 44 citizen suits (98%) related to the EIAA provisions. Most of the EIAArelated citizen suits (70%) were judicial review proceedings.

In addition to the relative absence of environmental citizen suits, another notable result concerning the non-EIAA provisions was the small number of judicial review proceedings. Only three non-EIAA judicial review proceedings were initiated over the study period compared to 38 in relation to the EIAA provisions. This is most likely attributable to the availability of merits appeals from decisions made under the non-EIAA provisions and the nature of the activities that the provisions regulate: the non-EIAA provisions concern wildlife interactions and trade and the EIA provisions relate mainly to fixed developments that threaten matters of national and Commonwealth environmental significance. The economic and environmental stakes are generally higher in relation to actions regulated under the EIAA provisions and, with no merits appeals available, conflicts over administrative decision-making are channelled towards the courts.

A similar division between the EIAA and non-EIAA provisions is evident in relation to government enforcement proceedings. Ninety per cent of government enforcement actions taken over the study period concerned the non-EIAA provisions. There are uncertainties associated with this data. Many of the enforcement actions under the non-EIAA provisions are prosecuted in lower state and territory courts that do not publish all of their judgments. Owing to the potential for missing cases, all data on non-EIAA government enforcement actions is bracketed.

Forty-four environmental citizen suits is a relatively small number when placed in the context of the total number of actions regulated and decisions made over the study period (Appendix A, Table A1). However, even this number is inflated because the 44 citizen suits related to only 34 actions. Further insight into the role of environmental citizen suits can be obtained by categorising the

30 environmental citizen suit judicial review proceedings by type of administrative decision. Seven of these suits concerned exclusively controlled action decisions; one concerned exclusively an assessment approach decision; 19 concerned exclusively approval decisions; two concerned controlled action and assessment approach decisions (both in relation to the same project); and one related to a decision to release non-binding guidelines on when proponents are required to refer proposals to cull spectacled and grey-headed flying-foxes. When these figures are adjusted to account for suits that concerned the same administrative decision(s), they suggest that 0.16% of controlled action decisions (8 out of 5121), 0.15% of assessment approach decisions (2 out of 1357) and 2.01% of approval decisions (17 out of 844) were subject to environmental citizen suit judicial review applications over the study period.

Table 2: Legal proceedings initiated under the EPBC Act, by proceeding type, applicant and nature of relevant provisions,

Of the 19 decided environmental citizen suit judicial review proceedings, four (21%) were successful (Table 3; Appendix B). For decided citizen suit enforcement proceedings, there were three wins to nine losses (25% were successful). Proponents had a similar success rate, with three wins and seven losses (30%), eight of which involved judicial review. The Government’s record in EIAA enforcement actions was unblemished; six successes from six decided cases.

Table 3: Successful and unsuccessful legal proceedings under the EPBC Act,

The analysis of discontinued citizen suits identified 4 out of 10 that were successful, in the sense that the decision in question was revoked or set side by consent, or the project was voluntarily withdrawn or prevented from proceeding (Appendix C).^[53] All four of these suits were judicial review proceedings.

There were four successful decided environmental citizen suit judicial review proceedings over the study period (Appendix B). In three of the cases (75%), subsequent executive action was taken to wholly or partially reverse the substantive effects of the court decision (Table 4). The first of these involved an application for relief in relation to administrative guidelines issued by the Department of the Environment concerning the referral of actions involving the culling of grey-headed and spectacled flying-foxes (two species of native Australian megabats).^[54] The guidelines stated that culling did not have to be referred under the EPBC Act if it was approved under a valid state licence. The Federal Court upheld the application and made a declaration to the effect that the purported exemptions contained in the guidelines were not authorised by law. In response, the Department merely modified the guidelines so that they stated that the culling of flying-foxes in accordance with a valid state permit is ‘not likely to have a significant impact on the species’ (that is, it is unlikely they will have to be referred under the EPBC Act). The wording was slightly different, but the message was the same.

The second case involved an appeal against the approval of a project to expand the McArthur River mine in the Northern Territory.^[55] The project was granted approval under the EPBC Act on 20 October 2006, the approval decision was quashed by the Full Federal Court on 17 December 2008 and the Minister reapproved the project two months later, on 20 February 2009. The conditions attached to the re-approval were largely the same as those in the original approval, save for the inclusion of an additional requirement that the proponent prepare and abide by an approved water quality monitoring plan.^[56]

The third case was similar to the McArthur River mine case, in that it involved a successful challenge to an approval decision made in relation to a mining project: the Shree Minerals Ltd magnetite and hematite mine in the Tarkine region in Tasmania.^[57] The mine was approved under the EPBC Act on 18 December 2012. The Federal Court quashed the approval on 17 July 2013. It was re-approved on 29 July 2013. Twenty-nine of the 30 conditions attached to the re-approval were carried over in almost identical form from the original approval. The only significant substantive change was the inclusion of a new condition requiring the proponent to ‘implement measures to ensure that staff, contractors and visitors use the bus to travel to and from the site of the action except in accordance with specified written exceptions agreed to in advance by the department’.^[58]

In addition to the judicial review proceedings, there were three successful decided environmental citizen suit enforcement proceedings. No executive action was taken to reverse the impacts of these court decisions. However, in two of the cases, Mees v Roads Corporation^[59] and Humane Society International Inc v Kyodo Senpaku Kaisha Ltd,^[60] executive action to undo the substantive impacts of the decision was unnecessary or not applicable. Mees^[61] involved an application for an injunction to restrain the Victorian Government from disseminating, and requiring them to correct, misleading information submitted under the EPBC Act in relation to the northern section of the Scoresby Freeway in Melbourne, Victoria. The Federal Court upheld part of the application, but refused to issue any relief. The decisions of the court were handed down on the 8^th and 23^rd of April 2003 but the project had been declared not to be a controlled action on 21 March 2002, meaning no executive action was necessary to ensure the project could proceed.

Kyodo^[62] involved an application for declaratory relief and an injunction to stop whaling by a Japanese whaling company in the Australian Whaling Sanctuary adjacent to Antarctica. The respondent did not appear to contest the case and the Japanese Government refused to assist in serving documents on the respondent on the basis that it did not recognise Australia’s jurisdiction over its Antarctic territory or the adjacent waters. After initially being dismissed,^[63] the application was ultimately upheld and declaratory and injunctive relief was granted in January 2008. However, the Japanese company refused to stop its whaling activities, both while the proceedings were on foot and after the 2008 judgment was handed down. Whaling was temporarily stopped in response to the International Court of Justice (‘ICJ’) proceedings between Australia and Japan over the whaling program. The decision of the ICJ was handed down in March 2014, with the Court concluding that the whaling program was in breach of international law.^[64] Soon afterwards, in October 2014, the Japanese Government announced its intent to resume whaling in the Southern Ocean. In response, the applicant in the Federal Court proceedings, Humane Society International, initiated contempt proceedings for the company’s breach of the injunction. On 18 November 2015, the Federal Court ruled the company was in contempt of Court for continuing to kill whales in the Australian Whale Sanctuary and imposed a $1 million fine.^[65] As of late 2016, the company had not paid the fine. Given the contested nature of Australia’s claim to its Antarctic Territory and the adjacent waters, and the ongoing dispute between Australia and Japan over whaling in the region, there is nothing the Australian Government could or would realistically do to reverse the impacts of the decisions of the Federal Court.

Table 4: Reversals by subsequent executive action of substantive effects of successfully

In two of the four successfully discontinued proceedings, subsequent executive action was taken to partially or wholly reverse the substantive effects of the applicant’s ‘victory’ (Appendix C). The first of these involved an application for review of the decision of the Minister’s delegate to approve the Huntlee New Town residential development at North Rothbury, near Newcastle, in New South Wales.^[66] Five months after the approval was granted, the Minister’s delegate revoked the EPBC Act approval on the grounds the action would have a significant impact on a matter protected under the legislation that was not identified during the assessment.^[67] The revocation of the approval prompted the discontinuance of the proceedings. A revised version of the development was referred under the EPBC Act in March 2011 and approved on

15 October 2013. The footprint of the revised development was similar to the original but the number of lots were reduced and there were changes to the conservation and offset proposals. There were also significant differences in the conditions imposed on the revised project, including a more than threefold increase in the offset payment requirements (from $100 000 to $341 700).

The second suit was the Carmichael coal mine case. In January 2015, the Mackay Conservation Group appealed the Federal Environment Minister’s decision to approve the mine (made in July 2014) to the Federal Court. In the course of the proceedings, it was discovered a minor procedural error had occurred in the approval process. Due to this, consent orders were sought and issued by the Court on 4 August 2015, invalidating the original approval.^[68] Two months later, on 14 October 2015, the Federal Environment Minister re-approved the mine subject to conditions that were largely the same as those attached to the original approval. There were only two significant substantive changes to the conditions. The first was the inclusion of a new sub-condition requiring the specification of triggers, impact thresholds and mitigation measures in the proposed groundwater management and monitoring plan to manage impacts on the Doongmabulla Springs Complex. The original approval required the preparation and submission of the plan, but did not include the specific measures concerning the Doongmabulla Springs Complex. The second was the inclusion of a condition enabling the proponent to revise any approved plan or strategy required under the approval without obtaining ministerial approval if the taking the action in accordance with the revision ‘would not be likely to have a new or increased impact’.^[69] The equivalent condition in the original approval required all variations to be approved by the Minister.

Thirty-one environmental citizen suits were initiated and determined during the study period: 19 EIAA judicial review suits, 11 EIAA enforcement proceedings and one nonEIAA enforcement proceeding. These suits related to 28 separate projects.^[70] The delays caused by the environmental citizen suits were mostly assessed as negligible (less than two weeks), with medium to high confidence (Table 5 and Appendix B). Sixteen of the 28 affected projects (57%) fell into these categories. With five (18%) of the affected projects, the relevant citizen suits were assessed as having caused minor delays (between two weeks and three months), with low and medium confidence. A further two projects were judged as having been subject to moderate delays (3 to 12 months) as a consequence of citizen suits, with low and medium confidence. Only five projects (18%) were judged as having been subject to substantial delays as a result of citizen suits (low, medium and high confidence). Two of these were enforcement suits (Booth v Bosworth^[71] and Brown v Forestry Tasmania^[72]), one of which was successful (Booth v Bosworth).

Table 5: Extent of project delays caused by decided environmental citizen suits over

Much of the public debate in Australia about the EPBC Act’s expanded standing provisions has focused exclusively on environmental citizen suit judicial review proceedings, particularly cases concerning the EIAA provisions. As Table 5 shows, the EIAA environmental citizen suit judicial review proceedings that were initiated and determined during the study period were found to have caused substantial delays on only three occasions (low and medium confidence). Twelve of the 17 projects (71%) affected by decided judicial review citizen suits were judged as having been subject to minor or negligible delays (low and medium confidence).

Table 6: Extent of project delays caused by decided EIAA environmental citizen suit

Out of the total of five projects that were judged as having been substantially delayed by environmental citizen suits, only two were capital-intensive. The first of these was the Nathan Dam in Queensland. The citizen suit taken in relation to the project involved an application for judicial review of the controlled action decision made in relation to the project on 16 September 2002.^[73] The Minister decided the project was a controlled action but limited the relevant impacts covered by the assessment and approval to those directly associated with its construction and operation. In doing so, the Minister excluded the indirect impacts (for example, increased nutrient and silt loads) on the Great Barrier Reef that would stem from the use of the dam water in surrounding irrigation areas. The applicant argued the approach adopted by the Minister in excluding the indirect impacts was unlawful. The Federal Court agreed at first instance, and again on appeal to the Full Court.

Following the Full Court’s decision, the Minister remade the controlled action decision and included the indirect impacts on the World Heritage values of the Great Barrier Reef within the scope of the assessment and approval process. However, the proponents later withdrew the application due to financial considerations. In December 2006, the Queensland Government identified the Nathan Dam as an option for meeting water demands in the Dawson River region. The dam was later designated as a priority regional water infrastructure project and $120 million was assigned by the State Government to facilitate its design and construction.^[74] In June 2008, the project was resubmitted under the EPBC Act and, as of April 2017, it was still undergoing assessment.

While the primary cause of the delay in the Nathan Dam appears to have been financial, there is reasonable evidence to suggest the delays caused by the citizen suit in the early 2000s contributed to the original proponent’s decision to abandon the project.^[75] Due to this, the suit was assessed as having caused substantial delays (moderate confidence). The subsidies provided by the State Government now appear to have overcome the financial obstacles to the project and it is likely to proceed in the coming years.

The second capital-intensive project that may have been substantially delayed by a citizen suit is the Venture Minerals Ltd Riley Creek hematite (iron ore) mine in the Tarkine region in northwest Tasmania. The Tarkine National Coalition Inc (a small Tasmanian environmental group) applied for judicial review of the Minister’s decision of 3 August 2013 to approve the project. The Coaltition claimed, among other things, that: the Minister had failed to have regard to conditions that would be imposed under the state approval process; the assessment was flawed; and the Minister failed to have regard to cumulative impacts. The Federal Court dismissed the application on 15 May 2014 and a subsequent appeal to the Full Federal Court was dismissed on 26 June 2015.^[76] While the Full Court appeal was still on foot the project was suspended and, as of April 2017, had still not commenced.

Like the Nathan Dam, the primary cause of the delay in the Riley Creek mine was financial. A sharp decline in iron ore prices in 2014, 2015 and most of 2016, rendered the project uneconomic. However, in the absence of the citizen suit, the project may have been able to commence in late 2013 or early 2014, when iron ore prices were still significantly above US$100/dry metric ton. Had the project commenced at this time,

it might have subsequently been forced to suspend operations due to the price falls. However, there is an arguable case the suit delayed the project’s commencement.

The three other projects that may have been substantially delayed by citizen suits were not capital-intensive and the costs of the delays are likely to have been limited. The first was the operation of an electric grid to cull spectacled flying-foxes at a lychee farm in north Queensland.^[77] The applicants in the citizen suit successfully sought an injunction to prevent the operation of the grid until it had been authorised under the EPBC Act. This outcome halted the grid’s operation but it was a change in government policy that ultimately stopped it. The case helped trigger a chain of events that prompted the federal and state governments to prohibit the large-scale culling of spectacled flying-foxes,

The second project involved the relocation of a grey-headed flying-fox colony from Sydney’s Royal Botanic Gardens.^[79] The Royal Botanic Gardens and Domain Trust moved the colony in order to stop the damage the flying-foxes were doing to historic trees in the gardens. The delay caused by the citizen suit prolonged the damage to the trees but had no broader economic implications.

The final action involved native forest harvesting in the Wielangta State Forest in Tasmania by the state-owned forestry agency, Forestry Tasmania.^[80] There was a decline in native forest harvesting in Tasmania’s public native forest estate that started in

2005–06, the same time the proceedings commenced. However, this was a product of market factors unrelated to the citizen suit.^[81] The primary impact of the case is that it is likely to have caused Forestry Tasmania to modify its harvesting plans. Harvesting in identified high conservation value forests was delayed and, as a substitute, harvesting elsewhere was brought forward. There may have been costs associated with this shift, but they are likely to have been negligible.

V Discussion

Policymakers and business interests have long held concerns about liberal standing rules and citizen suit activity imposing significant costs on society. The results of this study suggest these concerns are ill founded, at least in relation to the EPBC Act. Consistent with the findings from other jurisdictions, we found no evidence of a flood of citizen suit activity. On the contrary, if there was a problem with the amount of citizen suit activity over the study period it was its infrequency. Over the 15½-year study period, almost 5500 projects were referred under the EPBC Act’s EIAA provisions. Some 5121 controlled action decisions were made in relation to these projects, 1357 assessment approach decisions and 844 approval decisions. The information available on the operation of the non-EIAA provisions suggests around 300 000 actions were regulated under these provisions between July 2000 and December 2015. Despite the large number of activities regulated under the EPBC Act, only 129 legal proceedings were identified as having been initiated over the study period. Forty-four of these were environmental citizen suits and they related to a mere 34 actions.

Industry and political concerns about EPBC Act-related environmental citizen suits have focused on judicial review proceedings under the EIAA provisions. Much like the general myth about liberal standing rules unleashing a flood of citizen suits, the empirical foundation for these concerns is weak. Over the study period, only 0.16% of controlled action decisions (8 out of 5121), 0.15% of assessment approach decisions

(2 out of 1357) and 2.01% of approval decisions (17 out of 844) were subject to environmental citizen suit judicial review applications.

Environmental citizen suits can give rise to significant social costs when they stop projects from proceeding. Our results suggests this has not been a significant issue under the EPBC Act. Of the 31 identified decided environmental citizen suits, only seven (23%) were successful in the sense that a court upheld at least one of the applicant’s grounds of review or claims of breach. In decided environmental citizen suit judicial review proceedings, the success rate was 21%. For decided citizen suit enforcement proceedings, it was 25%. When citizen suits were legally successful, it was common for their substantive effects on the project(s) involved to be reversed or undone by subsequent executive action. This occurred in three of the four (75%) successful decided environmental citizen suit judicial review proceedings, and in two of the four (50%) successfully discontinued judicial review proceedings. There were also two successful environmental citizen suits where executive action to undo the substantive impacts of the decision was unnecessary or inapplicable.

The other major potential source of costs associated with environmental citizen suits is project delays. Delays are often the major source of costs in environmental approval processes, particularly where capital-intensive projects are involved.^[82]

By causing further delays, environmental citizen suits have the potential to add significantly to the costs associated with regulatory processes. While the risk of delay costs is real, our findings suggests they seldom materialise under the EPBC Act. Only five projects over the 15½-year study period were judged to have been substantially delayed by an environmental citizen suit and only two of these were capital-intensive.

We did not attempt to quantify the social costs of environmental citizen suits under the EPBC Act. Without doing so, it is impossible to reach a definitive conclusion about their magnitude. However, our findings provide a firm basis for inferring they were small. Citizen suits were seldom taken, rarely won and, even when they were successful, their substantive effects on the relevant projects were often reversed by subsequent executive action. In terms of costs associated with delays, at a macroeconomic level, the citizen suits were too few in number to matter and, even at a micro-level, the proceedings generally had negligible or minor effects on project timelines.

In addition to social costs, our results provide some tentative insights on the nature of the social benefits associated with citizen suits under the legislation. There are two points of note on this issue. Firstly, it is often argued environmental citizen suits are frequently trivial or frivolous,^[83] an assertion that, if true, could be attributed to the fact that applicants generally do not have a direct financial or proprietary interest in the subject matter of the proceedings. Our findings do not support this. Some of the citizen suits were of questionable merit,^[84] but most were neither trivial nor frivolous. Consistent with this, none of the citizen suits initiated over the study period were challenged as an abuse of process,^[85] and only one was dismissed for want of standing.^[86] Further, while only 23% of the citizen suits were legally successful, this result is similar to the success rate of proponents under the Act (30%).

Second, the results raise doubts about the extent to which environmental citizen suits generate environmental improvements through direct channels (that is, court relief and delay-induced project modifications and terminations). The lack of citizen suit activity suggests there were few opportunities for this to occur. Similarly, the fact that only 23% of decided citizen suits were legally successful, and that the substantive effects of most successful cases were undone by subsequent executive action, suggests court relief is not often a source of significant environmental benefits.

Finally, the finding that environmental citizen suits seldom caused delays suggests environmentally beneficial delay-induced project modifications and terminations are a rarity under the EPBC Act. What remains unknown is the extent to which environmental citizen suits under the EPBC Act have generated environmental benefits through indirect channels and, equally importantly, the extent to which they have produced democratic benefits. Both areas warrant further research.

VI Conclusion

The object of this study was to provide insights on the social costs of expanded standing provisions by evaluating the number and impacts of environment citizen suits taken under EPBC Act over the period 2000 to December 2015. The results suggest the costs were negligible, mainly because of the small number of suits and the ease with which their substantive impacts were undone. Only a minute proportion of administrative decisions made under the Act were subject to citizen suits: 0.16% of controlled action decisions, 0.15% of assessment approach decisions and 2.01% of approval decisions. Similarly only 14 civil enforcement citizen suits were initiated over the period. The low number of citizen suits is partly attributable to the ease with which the substantive effects of citizen suits can be reversed, something that stood out in the results. In five out the 11 successful citizen suits, subsequent executive action was taken to reverse the effects of the court decision. Possibly most importantly, only a handful (five) of projects were judged as having been substantially delayed by a citizen suit and only two of these were capital-intensive.

Contrary to popular mythology, the results suggest that the main concern about the EPBC Act’s liberal standing rules is not a flood of citizen suit activity, but a drought. Expanded standing provisions are intended to improve the quality of decision-making and adherence to the law by exposing proponents and administrative decision-makers to increased judicial scrutiny. The small number of citizen suits potentially threatens the realisation of this objective. Future research should evaluate whether the relative absence of citizen suit activity is impeding the realisation of the legislation’s objects, including the democratic aims of the expanded standing provisions, and whether complementary policy measures are needed to boost the amount of citizen suits or compensate for their rarity.

Appendix A: EPBC Act Administration Statistics

Table A1: Summary statistics on the operation of the EPBC Act’s EIAA provisions,

Source: Department of the Environment (Cth), ‘Annual Report’ (Report, Department of the Environment (Cth), 2001–15); Department of the Environment and Energy (Cth), EPBC Act — Public Notices Department of the Environment and Energy (Cth) <http://epbcnotices.environment.gov.au/> .

Table A2: Summary statistics on the operation of the EPBC Act’s EIAA provisions,

PM = not controlled action if taken in a particular manner, NCA = not controlled action

Source: Department of the Environment (Cth), ‘Annual Report’ (Report, Department of

Table A4: Wildlife program approval decisions (new approvals and variations) made

Source: Department of the Environment (Cth), ‘Annual Report’ (Report, Department of the Environment (Cth), 2001–15).

Appendix B: Summary Analysis of Decided Environmental Citizen Suits, 16 July 2000 to 31 December 2015

Wildlife Preservation Society of Queensland Proserpine/Whitsunday Branch Inc v Minister for the Environment and Heritage [2006] FCA 736; (2006) 93 ALD 84	No	—	• Possible that suit caused moderate delays to the Isaac Plains project • Likely that suit caused negligible delays to the Sonoma project
Investors for the Future of Tasmania Inc v Minister for the Environment and Water Resources [2007] FCA 1179 (9 August 2007)	No	—	Likely that suit caused negligible delays in the project
Wilderness Society Inc v Turnbull, Minister for the Environment and Water Resources [2007] FCAFC 175; (2007) 166 FCR 154	No	—	Likely that suit caused negligible delays in the project
Anvil Hill Project Watch Association Inc v Minister for the Environment and Water Resources [2008] FCAFC 3; (2008) 166 FCR 54	No	—	Likely that suit caused negligible delays in the project
Blue Wedges Inc v Minister for the Environment, Heritage and the Arts [2008] FCA 8; (2008) 165 FCR 211	No	—	Likely that suit caused negligible delays in the project
Blue Wedges Inc v Minister for the Environment, Heritage and the Arts [2008] FCA 399; (2008) 167 FCR 463	No	—	Likely that suit caused minor delays in the project
Your Water Your Say Inc v Minister for the Environment, Heritage and the Arts [2008] FCA 670 (16 May 2008)	No	—	Likely that suit caused minor delays in the project
Lawyers for Forests Inc v Minister for the Environment, Heritage and the Arts (2009) 178 FCR 385	No	—	Likely that suit caused negligible delays in the project
Lansen v Minister for Environment and Heritage [2008] FCAFC 189; (2008) 174 FCR 14	Yes	Yes	Possible that suit caused minor delays in the project
Bat Advocacy NSW Inc v Minister for Environment Protection, Heritage and the Arts [2011] FCA 113; (2011) 179 LGERA 458 Bat Advocacy NSW Inc v Minister for Environment Protection, Heritage and the Arts [2011] FCAFC 59; (2011) 180 LGERA 99	No	—	Possible that suit contributed to substantial delays in the project
Buzzacott v Minister for Sustainability, Environment, Water, Population and Communities [2013] FCAFC 111; (2013) 215 FCR 301	No	—	Likely that suit caused negligible delays in the project
Northern Inland Council for the Environment Inc v Minister for the Environment [2013] FCA 1418 (20 December 2013)	No	—	Possible that the suit caused minor delays in the project
Northern Inland Council for the Environment Inc v Minister for the Environment [2013] FCA 1419; (2013) 218 FCR 491	No	—	Likely that the suit caused minor delays in the project
Tarkine National Coalition Inc v Minister for Sustainability, Environment, Water, Population and Communities [2013] FCA 694; (2013) 214 FCR 233	Yes	Yes	Likely that suit caused moderate delays in the project
Tarkine National Coalition Inc v Minister for the Environment [2014] FCA 468; (2014) 202 LGERA 244 Tarkine National Coalition Inc v Minister for the Environment [2015] FCAFC 89; (2015) 233 FCR 254	No	—	Possible that suit contributed to substantial delays in the project

EIAA provisions – enforcement
Schneiders v Queensland [2001] FCA 553 (4 May 2001)	No	—	Highly likely that suit caused negligible delays in the project
Jones v Queensland [2001] FCA 756 (15 June 2001)	No	—	Highly likely that suit caused negligible delays in the project
Booth v Bosworth [2001] FCA 1453; (2001) 114 FCR 39	Yes	No	Highly likely that suit caused substantial delays in the project
Mees v Roads Corporation [2003] FCA 306; (2003) 128 FCR 418	Yes	No	Likely that suit caused negligible delays in the project
Save the Ridge Inc v Commonwealth [2005] FCA 17 (20 January 2005) Save the Ridge Inc v Commonwealth [2005] FCAFC 203; (2005) 147 FCR 97	No	—	Highly likely that suit caused negligible delays in the project
Brown v Forestry Tasmania [No 4] [2006] FCA 1729; (2006) 157 FCR 1 Forestry Tasmania v Brown [2007] FCAFC 186; (2007) 167 FCR 34	No	—	Possible that the suit caused substantial delays in some of Forestry Tasmania’s harvesting activities in the Wielangta State Forest
Milne v Rally Australia Pty Ltd [2009] FCA 1101 (29 September 2009)	No	—	Highly likely that suit caused negligible delays in the project
Wide Bay Conservation Council Inc v Burnett Water Pty Ltd [No 8] [2011] FCA 175; (2011) 192 FCR 1	No	—	Highly likely that suit caused negligible delays in the project
Krajniw v Brisbane City Council [No 2] [2011] FCA 563 (30 May 2011)	No	—	Highly likely that suit caused negligible delays in the project
Henderson v Corporation of the City of Adelaide [No 2] [2012] FCA 9 (13 January 2012)	No	—	Highly likely that suit caused negligible delays in the project
Krajniw v Newman, Premier (Qld) [2014] FCA 1454 (18 December 2014) Krajniw v Newman, Premier (Qld) [No 2] [2015] FCA 673 (3 July 2015)	No	—	Highly likely that suit caused negligible delays in the project
Non-EIAA provisions – enforcement
Humane Society International Inc v Kyodo Senpaku Kaisha Ltd (2008) 165 FCR 510	Yes	No	Highly likely that suit caused negligible delays in the project

Appendix C: Summary Analysis of Discontinued Environmental Citizen Suits, 16 July 2000 to 31 December 2015

^[∗]Professor, ANU College of Law, Australian National University, Canberra, Australia.

^[†] Senior Lecturer, ANU College of Law, Australian National University, Canberra, Australia.

^[‡] PhD Candidate, ANU College of Law, Australian National University, Canberra, Australia.

^[1] Mich Comp Laws §§ 691.1201–691.1207 (Supp 1972); Joseph L Sax, Defending the Environment: A Strategy for Citizen Action (Knopf, 1971); Joseph L Sax and Roger L Conner, ‘Michigan’s Environmental Protection Act of 1970: A Progress Report’ (1972) 70(6) Michigan Law Review 1003; Joseph L Sax and Joseph F DiMento, ‘Environmental Citizen Suits: Three Years’ Experience under the Michigan Environmental Protection Act’ (1974) 4(1) Ecology Law Quarterly 1.

^[2] Boyce v Paddington Borough Council [1902] UKLawRpCh 174; (1903) 1 Ch 109, 114 (Buckley J); Australian Conservation Foundation Inc v Commonwealth (1980) 146 CLR 493, 527 (Gibbs J). See also Bateman’s Bay Local Aboriginal Land Council v The Aboriginal Community Benefit Fund Pty Ltd [1998] HCA 49; (1998) 194 CLR 247; Robert Lutz and Stephen McCaffrey, ‘Standing on the Side of the Environment: A Statutory Prescription for Citizen Participation’ (1971) 1(3) Ecology Law Quarterly 561; David Feldman, ‘Public Interest Litigation and Constitutional Theory in Comparative Perspective’ (1992) 55(1) Modern Law Review 44.

^[4] Joseph F DiMento, ‘Citizen Environmental Legislation in the States: An Overview’ (1976) 53(3) Journal of Urban Law 413, 418–22; Sax, Defending the Environment, above n 1, 115. See generally David R Hodas, ‘Enforcement of Environmental Law in a Triangular Federal System: Can Three Not Be a Crowd When Enforcement Authority is Shared by the United States, the States, and Their Citizens?’ (1995) 54(4) Maryland Law Review 1552, 1620–1; Lutz and McCaffrey, above n 2, 565.

^[6] David Mossop, ‘Citizen Suits — Tools for Improving Compliance with Environmental Laws’ in Neil Gunningham, Jennifer Norberry and Sandra McKillop (eds), Environmental Crime: Proceedings of a Conference Held 1–3 September 1993, Hobart (Australian Institute of Criminology, 1995) 245, 250.

^[8] EPBC Act ss 475(6)(b), 487(2)(b). In the case of an organisation, the Act also requires the applicant’s objects to include ‘the protection or conservation of, or research into, the environment’: ss 475(7)(b), 487(3)(c).

^[9] John Watts, ‘Michigan Environmental Protection Act: Political Background’ (1970) 4 (Winter) University of Michigan Journal of Law Reform 358, 364–6; Roger C Cramton and Barry B Boyer, ‘Citizen Suits in the Environmental Field: Peril or Promise?’ (1972) 2(3) Ecology Law Quarterly 407; Joseph F Castrilli, ‘Environmental Rights Statutes in the United States and Canada: Comparing the Michigan and Ontario Experiences’ (1998) 9(2) Villanova Environmental Law Journal 349, 368–70; Chris Hilson and Ian Cram, ‘Judicial Review and Environmental Law — Is There a Coherent View of Standing?’ (1996) 16(1) Legal Studies 1; Jonathan H Adler, ‘Stand or Deliver: Citizen Suits, Standing, and Environmental Protection’ (2001) 12 (Autumn) Duke Environmental Law & Policy Forum 39.

^[11] Bateman’s Bay Local Aboriginal Land Council v The Aboriginal Community Benefit Fund Pty Ltd [1998] HCA 49; (1998) 194 CLR 247, 261 (Gaudron, Gummow and Kirby JJ). See also Peter Cane, ‘Standing Up for the Public’ [1995] (Summer) Public Law 276, 283; Productivity Commission (Cth), ‘Major Project Development Assessment Processes’ (Research Report, Productivity Commission (Cth), November 2013) 259, 276–7; DiMento, above n 4, 424; Adler, above n 9, 57–61.

^[12] Barry Boyer and Errol Meidinger, ‘Privatizing Regulatory Enforcement: A Preliminary Assessment of Citizen Suits Under Federal Environmental Laws’ (1985) 34(3) Buffalo Law Review 833, 838–44; Watts, above n 9, 361–2; Cramton and Boyer, above n 9, 410–19; DiMento, above n 4, 423–7; Productivity Commission (Cth), above n 11, 255–9. See also Wide Bay Conservation Council Inc v Burnett Water Pty Ltd (No 8) [2011] FCA 175; (2011) 192 FCR 1, 4–6 (Logan J).

^[13] Mossop, above n 6, 245, 255; Watts, above n 9, 364–6; Castrilli, above n 9, 368.

^[14] Environmental citizen suits are similar to ‘public interest environmental litigation’, a concept that has developed a distinct meaning in the jurisprudence on costs orders in common law jurisdictions. The distinction between the two hinges on the emphasis placed on the subjective intent of the applicant. Public interest environmental litigation is defined on the basis of the character of the litigation as being ‘in the public interest’. In characterising litigation for these purposes, courts generally have regard to the motives of the applicant, but they are not determinative. See Oshlack v Richmond River Council [1998] HCA 11; (1998) 193 CLR 72, 125 (Kirby J); Caroona Coal Action Group Inc v Coal Mines Australia Pty Ltd (No 3) (2010) 173 LGERA 280, 286–95 (Preston CJ); Chris McGrath, ‘Flying Foxes, Dams and Whales: Using Federal Environmental Laws in the Public Interest’ (2008) 25(5) Environmental and Planning Law Journal 324, 326–8. In contrast, we define environmental citizen suits solely on the basis of the motives of the applicant: was their dominant purpose the desire to generate public environmental benefits?

^[15] Over its projected 90-year life, the Carmichael coal mine is expected to produce 2.4 billion tonnes of thermal product coal, with peak production of 60 million tonnes a year. If it comes to fruition, it will be one of the largest coal mines in history: GHD, ‘Carmichael Coal Mine and Rail Project: Supplementary Environmental Impact Statement’ (Report, Adani Mining, 19 November 2013) 1–2; Federal Court of Australia, ‘Statement re NSD33/2015 Mackay Conservation Group v Minister for Environment’ (Media Release, 20 August 2015).

^[17] Australian Institute of Marine and Power Engineers v Secretary, Department of Transport (1986)

^[18] (1980) 146 CLR 493. North Coast Environment Council Inc v Minister for Resources [1994] FCA 1556; (1994) 55 FCR 492; Tasmanian Conservation Trust Inc v Minister for Resources [1995] FCA 1035; (1995) 55 FCR 516; Alliance to Save Hinchinbrook v Environmental Protection Agency [2007] 1 Qd R 102, 104–6 [12]–[22] (Jones J); Animals’ Angels eV v Secretary, Department of Agriculture [2014] FCAFC 173; (2014) 228 FCR 35, 65–72 [101]–[121] (Kenny and Robertson JJ). See also Justice Brian J Preston, ‘Standing to Sue at Common Law in Australia’ (Paper presented at the Joint Seminar on Legality of Administrative Behaviours and Types of Adjudication, Xian, People’s Republic of China, 11–13 April 2006); Gerry Bates, Environmental Law in Australia (LexisNexis, 7^th ed, 2010) 627–53; Edgar, above n 7, 436.

^[20] Ross Sandler, ‘Law: Citizen Suit Litigation’ (1981) 23(2) Environment: Science and Policy for Sustainable Development 38; Environmental Law Institute, ‘Citizen Suits: An Analysis of Citizen Enforcement Actions under EPA-Administered Statutes’ (Environmental Law Institute, 1984); Adeeb Fadil, ‘Citizen Suits Against Polluters: Picking Up the Pace’ (1985) 9(1) Harvard Environmental Law Review 23; German Advisory Council on the Environment (‘GACE’), ‘Environmental Report 2002: Towards a New Leading Role’ (Research Report, GACE, 2002); James R May, ‘Now More than Ever: Trends in Environmental Citizen Suits at 30’ (2003) 10(1) Widener Law Review 1; Chris McGrath, ‘Myth Drives Australian Government Attack on Standing and “Environmental Lawfare”’ (2016) 33(1) Environmental and Planning Law Journal 3; Sax and Conner, above n 1; Sax and DiMento, above n 1; Boyer and Meidinger, above n 12; Hodas, above n 4; Edgar, above n 7.

^[21] Related research on legal mobilisation supports this assertion, indicating that public interest groups’ ability and willingness to initiate citizen suits is a function of a collection of legal, political, cultural, economic and environmental factors (known as the ‘legal opportunity structure’) that shape their ability to use legal avenues to realise social and environmental objectives: Lisa Vanhala, ‘Legal Opportunity Structures and the Paradox of Legal Mobilization by the Environmental Movement in the UK’ (2012) 46(3) Law & Society Review 523.

^[22] Paul G Kent and John A Pendergrass, ‘Has NEPA Become a Dead Issue? Preliminary Results of a Comprehensive Study of NEPA Litigation’ (1986) 5 Temple Environmental Law & Technology Journal 11; Nicolas de Sadeleer, Gerhard Roller and Miriam Dross, ‘Access to Justice in Environmental Matters: Final Report’ (Research Report, European Commission, 2002) 3–12; Nicolas de Sadeleer, Gerhard Roller and Miriam Dross, Access to Justice in Environmental Matters and the Role of NGOs: Empirical Findings and Legal Appraisal (Europa Law Publishing, 2005); Vanhala, above n 21, 535–6.

^[24] EPBC Act pt 3 div 1. The matters of national environmental significance are: World heritage areas; national heritage places; Ramsar wetlands (wetlands of international importance); listed threatened species and ecological communities; listed migratory species; nuclear actions; Commonwealth marine areas and Commonwealth managed fisheries; the Great Barrier Reef Marine Park; and coal seam gas and large coal mine developments that could significantly affect a water resource.

^[25] EPBC Act s 75. The controlled action decision determines whether a project proceeds to formal assessment and approval. At this stage, the Minister has four options: the action is clearly unacceptable (rejected), not a controlled action (it can proceed), not a controlled action if it is undertaken in a particular manner (it can proceed), or controlled action (it must undergo formal assessment and approval).

^[26] Phillip Toyne, Reluctant Nation: Environment, Law and Politics in Australia (ABC Books, 1994).

^[27] Council of Australian Governments, Heads of Agreement on Commonwealth and State Roles and Responsibilities for the Environment (at November 1997).

^[28] (‘CITES’). Signed 3 March 1973 (entered into force 1 July 1975; amended 22 June 1979, 30 April 1983).

^[30] Parker v Minister for Sustainability, Environment, Water, Population and Communities [2011] FCA 1325 (18 November 2011); Parker v Minister for Sustainability, Environment, Water, Population and Communities [2012] FCAFC 94; (2012) 205 FCR 415.

^[31] Re Humane Society International and Minister for the Environment [2006] AATA 298; (2006) 93 ALD 640; Re Wildlife Protection Association of Australia Inc and Minister for the Environment and Heritage (2003)

[2003] AATA 236; 73 ALD 446; Re The Wildlife Protection Association of Australia Inc and Minister for Environment and Heritage [2004] AATA 1383 (14 October 2004); Re The Wildlife Protection Association of Australia Inc and Minister for Environment and Heritage [2006] AATA 953 (10 November 2006); Re Nature Conservation Council of NSW Inc and Minister for Environment and Water Resources [2007] AATA 1876; (2007) 98 ALD 334.

^[32] Australian Law Reform Commission, Standing in Public Interest Litigation, Report No 27 (1985); Australian Law Reform Commission, Beyond the Doorkeeper — Standing to Sue for Public Remedies, Report No 78 (1996); Sax, Defending the Environment, above n 1; Lutz and McCaffrey, above n 2, 649; Productivity Commission (Cth), above n 11, 255–9, 271–7; May, above n 20.

^[34] Bureau of Industry Economics, ‘Environmental Impact Assessment on Major Projects’ (Bureau of Industry Economics, 1990); Productivity Commission (Cth), ‘Review of Regulatory Burden on the Upstream Petroleum (Oil and Gas) Sector’ (Research Report, Productivity Commission (Cth), April 2009) 214–20; Andrew Macintosh, ‘Best Practice Environmental Impact Assessment: A Model Framework for Australia’ (2010) 69(4) Australian Journal of Public Administration 401, 405–6.

^[36] Ian Ayres and John Braithwaite, Responsive Regulation: Transcending the Deregulation Debate (Oxford University Press, 1992) 54–98; Lutz and McCaffrey, above n 2, 567–75.

^[38] Sources: Sax, Defending the Environment, above n 1; Lutz and McCaffrey, above n 2; Hodas, above n 4; Delogu, above n 10; May, above n 20; Vanhala, above n 21; de Sadeleer, Roller and Dross, Access to Justice in Environmental Matters and the Role of NGOs, above n 22; Ayres and Braithwaite, above n 36.

^[41] Department of the Environment and Energy (Cth), Annual Reports <http://www.environment.gov.au/

^[43] Peter Nygh and Peter Butt (eds), Concise Australian Legal Dictionary (Butterworths, 2^nd ed, 1998) 225.

^[51] Michael Mastrandrea et al, ‘Guidance Note for Lead Authors of the IPCC Fifth Assessment Report on Consistent Treatment of Uncertainties’ (Guidance Note, Intergovernmental Panel on Climate Change, November 2010).

^[52] It is arguable that citizen suits should only cause delays and interruptions if a court grants an interlocutory injunction. In the absence of such an order, the assessment and approval of the project should continue as normal and, if the project has received all relevant government authorisations, there should be no legal impediment to the proponent continuing the action. While this is strictly true, the uncertainty caused by court proceedings can cause delays. Due to this, when making assessments about delays, we adopted a conservative approach that erred on the side of concluding that suits caused delays.

^[†] Ure v Commonwealth (2015) 323 ALR 164 was not included in the results on the grounds that it was only tangentially related to the EPBC Act. The applicant in that case unsuccessfully sought a declaration from the Court that she held absolute ownership over Elizabeth Reef and Middleton Reef (an Australian territory) and that, through various legislative actions, the Commonwealth had unlawfully purported to acquire her property rights.

^[53] Mackay Conservation Group Inc v Commonwealth (Federal Court of Australia, NSD33/2015, Katzmann J); Sweetwater Action Group Inc v Minister for the Environment, Heritage and the Arts (Federal Court of Australia, NSD 1136/2009); Alliance to Save Hinchinbrook Inc v Minister for the Environment (Federal Court of Australia, QUD 8/2015); Mackay Conservation Group Inc v Minister for the Environment (Federal Court of Australia, QUD 118/2014).

^[54] Humane Society International Inc v Minister for the Environment and Heritage [2003] FCA 64; (2003) 126 FCR 205.

^[55] Re Lansen and Minister for Environment and Heritage (2008) 102 ALD 558; Lansen v Minister for Environment and Heritage [2008] FCAFC 189; (2008) 174 FCR 14.

^[56] Eight of the nine conditions attached to the re-approval were carried over from the original. There were some changes in the wording of the conditions but the substance was largely unchanged. The inclusion of an additional condition requiring the water quality monitoring plan was the only significant substantive change: 2003/954 McArthur River Open Cut Mine Project (EPBC Act decision, Peter Garrett, Minister for the Environment, Heritage and Water, 20 February 2009) conditions 2, 4.

^[57] Tarkine National Coalition Inc v Minister for Sustainability, Environment, Water, Population and Communities [2013] FCA 694; (2013) 214 FCR 233.

^[58] 2011/5846 Nelson Bay River Magnetite and Hematite Mine, near Nelson Bay River, North-West Tasmania (EPBC Act decision, Mark Butler, Minister for the Environment, Heritage and Water, 29 July 2013) condition 6. See also: condition 3.

^[59] [2003] FCA 306; (2003) 128 FCR 418 (‘Mees’).

^[60] (2008) 165 FCR 510 (‘Kyodo’).

^[61] [2003] FCA 306; (2003) 128 FCR 418.

^[62] (2008) 165 FCR 510.

^[63] Humane Society International Inc v Kyodo Senpaku Kaisha Ltd [2005] FCA 664 (27 May 2005); Humane Society International Inc v Kyodo Senpaku Kaisha Ltd (2006) 154 FCR 425.

^[64] Whaling in the Antarctic (Australia v Japan) (Judgment) [2014] ICJ Rep 226.

^[65] Humane Society International Inc v Kyodo Senpaku Kaisha Ltd [2015] FCA 1275; (2015) 238 FCR 209.

^[66] Sweetwater Action Group Inc v Minister for the Environment, Heritage and the Arts (Federal Court of Australia, NSD 1136/2009).

^[67] EPBC Act s 145(2).

^[68] Mackay Conservation Group Inc v Commonwealth (Federal Court of Australia, NSD33/2015, Katzmann J). See Federal Court of Australia, above n 15.

^[69] 2010/5736 Carmichael Coal Mine and Rail Infrastructure Project, Queensland (EPBC Act decision, Greg Hunt, Minister for the Environment, 14 October 2015) condition 33.

^[70] One of the applications for judicial review (Wildlife Preservation Society of Queensland Proserpine/Whitsunday Branch Inc v Minister for the Environment and Heritage [2006] FCA 736; (2006) 93 ALD 84) related to two projects: the Isaac Plains and Sonoma coal mine projects in the Bowen Basin in Queensland.

^[71] [2001] FCA 1453; (2001) 114 FCR 39.

^[72] Brown v Forestry Tasmania [No 4] [2006] FCA 1729; (2006) 157 FCR 1; Forestry Tasmania v Brown [2007] FCAFC 186; (2007) 167 FCR 34.

^[73] Queensland Conservation Council Inc v Minister for the Environment and Heritage [2003] FCA 1463

(19 December 2003); Minister for the Environment and Heritage v Queensland Conservation Council Inc (2004) 139 FCR 24.

^[74] Department of Infrastructure and Planning (Qld), ‘Establishment of Program of Works Statewide Water Grid Regional Water Infrastructure Projects Notification [No 3] 2007’ (Program of Works, Department of Infrastructure and Planning (Qld), 13 December 2007) 2; Department of Infrastructure and Planning (Qld), ‘Statewide Water Policy: Quarterly Progress Report’ (Progress Report, Department of Infrastructure and Planning (Qld), July 2008); Coordinator-General (Qld), ‘Terms of Reference for an Environmental Impact Statement: Nathan Dam and Pipelines Project’ (Department of Infrastructure and Planning (Qld), February 2009).

^[75] Andrew Macintosh, ‘The Commonwealth’ in Tim Bonyhady and Andrew Macintosh (eds), Mills, Mines and Other Controversies: The Environmental Assessment of Major Projects (Federation Press, 2010) 224, 246–7.

^[76] Tarkine National Coalition Inc v Minister for the Environment [2014] FCA 468; (2014) 202 LGERA 244; Tarkine National Coalition Inc v Minister for the Environment [2015] FCAFC 89; (2015) 233 FCR 254.

^[77] Booth v Bosworth [2001] FCA 1453; (2001) 114 FCR 39.

^[78] Andrew Macintosh, ‘The Environment Protection and Biodiversity Conservation Act 1999 (Cth): An Evaluation of its Cost-Effectiveness’ (2009) 26(5) Environmental and Planning Law Journal 337, 358–9.

^[79] Bat Advocacy NSW Inc v Minister for Environment Protection, Heritage and the Arts [2011] FCA 113; (2011) 179 LGERA 458; Bat Advocacy NSW Inc v Minister for Environment Protection, Heritage and the Arts [2011] FCAFC 59; (2011) 180 LGERA 99.

^[80] Imran Church, ‘Fauna v Forestry: The Wielangta Forest Litigation’ [2009] UTasLawRw 5; (2009) 28(1) University of Tasmania Law Review 125.

^[81] Andrew Macintosh, ‘The Australian Native Forest Sector: Causes of the Decline and Prospects for the Future’ (Technical Brief, The Australia Institute, April 2013) 8–17.

^[82] Productivity Commission (Cth), above n 11, 255–9; Bureau of Industry Economics, above n 34; Productivity Commission (Cth), above n 34, 214–20; Macintosh, above n 34, 405–6.

^[83] Productivity Commission (Cth), above n 11, 276–7.

^[84] See particularly Save the Ridge Inc v Commonwealth [2005] FCA 17 (20 January 2005); Save the Ridge Inc v Commonwealth [2005] FCAFC 203; (2005) 147 FCR 97; Henderson v Corporation of the City of Adelaide [No 2] [2012] FCA 9 (13 January 2012); Krajniw v Brisbane City Council [No 2] [2011] FCA 563 (30 May 2011); Krajniw v Newman, Premier (Qld) [2014] FCA 1454 (18 December 2014); Krajniw v Newman, Premier (Qld) [No 2] [2015] FCA 673 (3 July 2015).

^[85] See also Edgar, above n 7, 442.

^[86] Paterson v Minister for the Environment and Heritage [2004] FMCA 924 (26 November 2004).

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Type	Judicial review				Enforcement
Applicant	Proponent private interest	Third party private interest	Citizen suit	Total	Government prosecution	Proponent private interest	Citizen suit	Total
EIAA provisions
Decided	5	0	19	24	6	1^[‡]	11	18
Undecided	0	0	1	1	0	0	1	1
Discontinued^[*]	3	0	10	13	1	0	1	2
Total	8	0	30	38	7	1	13	21
Non-EIAA provisions
Decided	3	0	0	3	[64]	1	1	[66]
Undecided	0	0	0	0	[1]	0	0	[1]
Discontinued^*	0	0	0	0	[0]	0	0	[0]
Total	3	0	0	3	[65]	1	1	[67]
Combined total^[†]	11	0	30	41	[72]	2	14	[88]

	Successful	Unsuccessful	Discontinued or undecided
	Judicial review
*EIAA provisions*
Proponent – private interest	2	3	3
Third party – private interest	0	0	0
Citizen suit	4	15	11
Total	6	18	14
*Non-EIAA provisions*
Proponent – private interest	1	2	0
Third party – private interest	0	0	0
Citizen suit	0	0	0
Total	1	2	0
Enforcement
*EIAA provisions*
Government prosecution	6	0	1
Proponent – private interest	0	1	0
Citizen suit	2	9	2
Total	8	10	3
*Non-EIAA provisions*
Government prosecution	[64]	[0]	[1]
Proponent – private interest	0	1	0
Citizen suit	1	0	0
Total	[65]	[1]	[1]
Combined total	[80]	[31]	[18]

	Was subsequent executive action taken to reverse the substantive effects of successful environmental citizen suits?
	Yes	No	Not applicable
Successfully decided
EIAA provisions – judicial review	3	1	—
EIAA provisions – enforcement	—	1	1
Non-EIAA provisions – enforcement	—	—	1
Total	3	2	2
Successfully discontinued
EIAA provisions – judicial review	2	2	—
Combined total	5	4	2

	Extent of delay
	Negligible	Minor	Moderate	Substantial
High confidence	9	—	—	1
Medium confidence	7	3	1	1
Low confidence	—	2	1	3
Total	16	5	2	5

	Extent of delay
	Negligible	Minor	Moderate	Substantial
High confidence	—	—	—	—
Medium confidence	7	3	1	1
Low confidence	—	2	1	2
Total	7	5	2	3

Sydney Law Review

Macintosh, Andrew; Roberts, Heather; Constable, Amy --- "An Empirical Evaluation of Environmental Citizen Suits under the Environment Protection and Biodiversity Conservation Act 1999 (Cth)" [2017] SydLawRw 4; (2017) 39(1) Sydney Law Review 85

I Introduction

II Background Information on the EPBC Act

A EIAA Provisions

B Non-EIAA Provisions

III Scope and Methods

A Defining Environmental Citizen Suits

B Citizen Suits from a Utilitarian Perspective

C Scope of the Study

D Methods

IV Results

(1) Frequency of Environmental Citizen Suits

V Discussion

VI Conclusion

Appendix A: EPBC Act Administration Statistics

Appendix B: Summary Analysis of Decided Environmental Citizen Suits, 16 July 2000 to 31 December 2015

Appendix C: Summary Analysis of Discontinued Environmental Citizen Suits, 16 July 2000 to 31 December 2015

Type of decision	Number
Number of referred actions	5495
Referred actions deemed clearly unacceptable	9
Controlled action decisions	5121
Controlled actions	1516
Not controlled action – particular manner	1015
Not controlled action	2590
Assessment approach decisions	1357
Referral information	48
Preliminary documentation	734
Public environmental report	73
Environmental impact statement	89
Bilateral assessment	263
Accredited assessment	150
Approval decisions	844
Approved projects	827
Approved with conditions	814
Approved without conditions	13
Refused approval	11

	Referrals received	CU^*	CA^*	PM^*	NCA^*
Agriculture and forestry	84	0	25	20	32
Aquaculture	72	0	25	7	37
Urban development	1278	1	377	147	653
Commonwealth	136	0	31	31	70
Energy generation and supply	495	0	131	66	273
Exploration	510	1	36	313	116
Fishing	2	0	1	0	1
Manufacturing	62	0	23	2	31
Mining	754	1	411	54	252
Tourism, recreation and natural resource management	564	3	106	116	301
Science and research	102	0	5	37	48
Telecommunications	87	0	6	17	61
Transport – air and space	64	0	18	5	15
Transport – land	575	2	155	77	312
Transport – water	163	0	56	39	61
Waste management	191	0	28	28	124
Water management and use	324	1	79	53	180
Other	32	0	3	3	23
Total	5495	9	1516	1015	2590

	Import/export live specimen permits	Personal accompanied baggage permits	Non-commercial wildlife trade permits	Total
2004	3716	55 108	284	59 108
2005	3284	19 418	374	23 076
2006	2520	24 255	410	27 185
2007	2810	24 908	240	27 958
2008	2383	28 543	206	31 132
2009	1969	15 690	205	17 864
2010	1688	18 893	216	20 797
2011	1369	15 324	125	16 818
2012	1855	13 529	140	15 524
2013	1810	15 635	217	17 662
2014	1983	11 358	274	13 615
2015	2039	13 227	187	15 453
Total	27 426	255 888	2878	286 192

	Captive breeding program	Cooperative conservation program	Artificial propagation program	Aquaculture program	Wildlife trade operations (commercial fisheries)	Individual wildlife trade operations (non-fisheries)	Commercial import program	Wildlife trade management plan	Total
2004	2	4	18	4	16	4	1	1	34
2005	3	2	14	2	17	3	7	0	31
2006	1	2	10	1	19	5	2	5	26
2007	0	3	30	1	23	12	0	1	47
2008	5	2	13	0	32	3	0	5	28
2009	9	10	10	2	19	5	0	2	38
2010	0	4	10	1	9	6	1	2	24
2011	0	4	9	3	12	5	0	3	24
2012	3	0	17	1	13	5	0	1	27
2013	3	0	9	0	11	2	0	4	18
2014	3	0	3	0	10	4	0	7	17
2015	1	0	9	1	13	9	0	2	22
Total	30	31	152	16	194	63	11	33	530

Case name (principal judgment reference(s))	Legally successful	Substantive effect of successful case wholly or partially reversed	To what extent did the environmental citizen suit cause project delays? (confidence qualifiers signified with ‘possible’ (low confidence), ‘likely’ (medium confidence) and ‘highly likely’ (high confidence)
EIAA provisions – Judicial review
Humane Society International Inc v Minister for the Environment and Heritage [2003] FCA 64; (2003) 126 FCR 205	Yes	Yes	Likely that suit caused negligible project delays
Queensland Conservation Council Inc v Minister for the Environment and Heritage [2003] FCA 1463 (19 December 2003) Minister for the Environment and Heritage v Queensland Conservation Council Inc (2004) 139 FCR 24	Yes	No	Likely that suit contributed to substantial project delays
Mees v Kemp [2004] FCA 366 (31 March 2004)	No	—	Likely that suit caused negligible project delays
Paterson v Minister for the Environment and Heritage [2004] FMCA 924 (26 November 2004)	No	—	Likely that suit caused negligible project delays

Case name (case or judgment reference)	Successful	Substantive effect of successful case wholly or partially reversed
Save the Ridge Inc v Commonwealth [reference unknown, discontinued on 6 February 2004]	No	—
Paradise Dam case [reference unknown, discontinued on 25 June 2004]	No	—
Tasmanian Conservation Trust v Minister for Environment and Heritage [2004] FCA 883 (7 July 2004)	No	—
Oshlack v Minister for Environment Protection, Heritage and the Arts (Federal Court of Australia, NSD 1271/2009)	No	—
Sweetwater Action Group Inc v Minister for the Environment, Heritage (Federal Court of Australia, NSD 1136/2009)	Yes	Partially
Tasmanian Conservation Trust Inc v Minister for Sustainability, Environment, Water, Population and Communities (Federal Court of Australia, ACD 24/2011)	No	—
Green Wedges Guardians Alliance Inc v Minister for the Environment (Federal Court of Australia, VID 779/2014)	No	—
Mackay Conservation Group Inc v Minister for the Environment (Federal Court of Australia, QUD 118/2014)	Yes	No
Alliance to Save Hinchinbrook Inc v Minister for the Environment (Federal Court of Australia, QUD 8/2015)	Yes	No
Mackay Conservation Group Inc v Commonwealth (Federal Court of Australia, NSD33/2015, Katzmann J)	Yes	Yes