The Environmental Defence Society (EDS) has today filed a High Court appeal challenging the fast-track decision to approve the Haldon Solar Farm in the Mackenzie Basin.
“The case raises an important question for the fast-track regime: how far can an expert panel go in setting conditions to address adverse impacts on nationally important Threatened and At Risk species and ecosystems?” says Shay Schlaepfer, EDS Chief Operating Officer and General Counsel.
“The answer cannot be to approve the project now and leave fundamental questions about how those effects will be addressed for someone else to determine years in the future.
“Yet that is what the Haldon consent conditions do.
“The Haldon fast-track Panel imposed conditions requiring a Technical Review Panel to determine, in ten years’ time, whether specified ‘no net loss’ ecological outcomes have been achieved.
“If they have not, that Review Panel can require additional ecological compensation, potentially including the acquisition of up to 170 hectares of additional land and habitat. That includes land that has not yet been identified, will require third-party agreement and likely future regulatory approvals.
“These are substantive decisions about whether, and how, the significant ecological effects of this project can actually be addressed.
“EDS says conditions of this nature are unlawful. They delegate decision-making that the Haldon Panel itself was required to undertake, including determining the extent of residual ecological effects and whether adequate compensation could address them.
“They are also invalid for their uncertainty. There is no guarantee that land required for additional compensation will be available in 10 years’ time, or that it will be fit for purpose in addressing the ecological loss caused by the solar farm.
“Given this, EDS says that the Panel should have declined the project.
“Fast-track Panels must ensure that the protection of significant ecological values are addressed at the time of consent. If that cannot be done with valid and legally enforceable conditions, the approval should be declined,” concludes Shay Schlaepfer.