The two-year wait for Hazelwood mine fire charges shows the system needs to change

Victoria’s Environmental Protection Authority has brought charges against four companies over the Hazelwood coal mine fire, which burned for 45 days in February and March 2014, blanketing the nearby town of Morwell in smoke.

The charges allege that the pollution from the fire broke environmental laws by making the air:

• noxious or poisonous or offensive to the senses of human beings;
• harmful or potentially harmful to the health, welfare, safety or property of human beings;
• detrimental to any beneficial use made of the atmosphere.

The charges follow a two-year investigation featuring several inquiries into the fire, including a report which concluded that the blaze probably contributed to deaths in the community.

The mine’s owner is already facing charges from Worksafe Victoria, which it says it will defend. It is majority-owned by the power multinational GDF Suez (known internationally as Engie).

Some, including Victoria’s environment minister Lisa Neville, have raised questions over why it has taken so long for the EPA to lay its own charges. This chimes with our ongoing research, which indicates that Australian citizens and campaign groups have less power to bring environmental prosecutions than in other comparable countries.

Compare and contrast

We compared the situation in Australia with an Italian case involving another Engie subsidiary, Tirreno Power. In 2014, while Hazelwood was burning, Tirreno’s coal-fired power plant in Vado Ligure, Italy, was seized and shut down in response to judicial findings that the company had violated its environmental conditions, causing hundreds of deaths and thousands of illnesses as a result of the facility’s emissions.

Unlike at Hazelwood, there was no single disaster such as a fire, but rather a realisation of the damage being done by chronic pollution.

In Italy, not only is environmental protection improving under the guidance of the European Union, but citizens also have their own systems to report potential violations, balancing to some degree the rights of corporations against those of other parties. In the Tirreno case, the campaign group Rete Savonese Fermiamo il Carbone (Savonese Stop the Coal Network) was instrumental in raising the issue and ultimately securing a victory for local citizens.

Victorian state laws have some similar provisions, particularly under the Occupational Health and Safety Act. If a citizen feels that an incident has breached health and safety laws and authorities do not prosecute within six months, they can make a written request to Worksafe Victoria to prosecute.

This is probably how Worksafe’s recent action against GDF Suez came about about. Acting on behalf of campaign group Voices of the Valley, Environmental Justice Australia asked Worksafe to pursue legal action.

But similar provisions do not exist under Victoria’s environmental laws, which date back to 1970. Only the EPA can bring charges, but if it chooses not to, there is no way for citizens to ask the authority to reconsider.

Citizens' rights

In some ways this is rather startling. It begs the question of who will uphold environmental standards if the regulator chooses to look the other way. It is little wonder that citizens are resorting to protest and media pressure to be heard.

Meanwhile, there are worrying signs that corporations are being given special privilege on account of their role as drivers of economic development. This includes mining companies who, for example, have until recently been relatively free simply to abandon mines once extraction has finished. Even now they only have to pay nominal rehabilitation bonds, with the result that Hazelwood is one of roughly 50,000 abandoned mine sites across the country, many of which pose serious risks. The current Hazelwood Mine Fire Inquiry report on mine rehabilitation at the site was due March 15, but this has been delayed for an unspecified period or reason.

Society’s capacity to call on governments to prosecute is clearly mediated by how the law defines who can take legal action. The federal government’s ongoing bid to strip green groups of the right to challenge environmental approvals is case in point.

The Hazelwood fire has exposed many environmental issues. But the slow pace of the investigation also highlights a real weakness in our legal system. Making this system more just and democratic is vital – not just to increase our capacity to respond to catastrophic events like the Hazelwood fire, but also to begin tipping the balance of power back towards society and away from corporations who must always be fully accountable.

This article was co-authored with Melanie Birkbeck, who has researched these issues as an intern at the Melbourne Sustainable Society Institute and as a postgraduate student at the University of Melbourne’s Office for Environmental Programs. It is based on research supported by the Melbourne Sustainable Society Institute and RMIT Centre for Urban Research.