Blog | 28th Feb, 2012

Reflecting on EVs legal challenge to stop HRL

For the past few months I’ve been working solidly on Environment Victoria’s campaign to Stop HRL, a proposed new coal-fired power station in Victoria.

Some of the actions in our campaign have been familiar. Others, like the hand-signed petition of almost 13,000 people calling on the federal government to withdraw their funding of HRL, pushed us to organise better and improve the way we work.

But the legal challenge against the EPAs approval of HRL has been a completely new challenge for our climate campaign, and has been a fascinating, testing and terrifying experience all at once.

Environment Victoria has taken legal action before. In 2005 we partnered with a range of environmental organisations to challenge the government’s extension of the life of Hazelwood power station at VCAT.

But this case is different. First, our challenge goes to the heart of the Environment Protection Act, and will test the application of its core principles. Second, the case has been massive with the hearing alone taking four and a half weeks, not to mention the months of preparation that went into it. Third, the costs associated with such a big case are considerable making the organisation’s decision to pursue a legal challenge a significant one.

In this strange space between the end of the hearing and the announcement of a decision by the tribunal I’m reflecting on what I’ve learnt and what our campaign has achieved from the process to date, regardless of the outcome of the case. This is a reflection otherwise known as ‘How I learnt to stop worrying and love the law’.

1. Losing control is terrifying; and liberating

As campaigners we are usually trying to change a situation or affect a decision. The control over the decision lies elsewhere, but we aim to influence it with a campaign strategy that we believe will work – one that is planned, developed and controlled from the beginning to build momentum for the campaign in a structured.

But I don’t know the law, and I’m unfamiliar with the processes. Thankfully, the lawyers and barristers we work with do – meaning they have the control. Your campaign strategy becomes their ‘campaign strategy’. While I fought against this for a few weeks (our lawyers might say months), I soon realised that if we were going down this path, we needed to trust their advice and expertise. When I finally did, what a relief it was.

2. Working with lawyers: A learnt skill

While the fabulous folk at the Environment Defenders Office aren’t your average bunch of lawyers, working with lawyers is still a new skill I’ve had to develop.

Whereas a campaigner works to bring people with you at each step, a legal team goes there, and knows you’ll follow. Whereas a campaigner plans their full strategy and major actions from the beginning, a barrister gets to the detail of the next step when that step arrives, often meaning at the last minute. No amount of harassment or stress on your behalf can change this. It’s all part of the learning-to-let-go process, and well worth it in the end.

3. Impartial and objective: Is the law really all it’s cracked up to be?

It often seems that those who yell and complain the loudest are the ones who have the biggest impact in the climate debate (think climate deniers, big polluters and the anti-carbon tax campaign). Taking legal action gave me hope that we would make our arguments in an impartial and objective space. With the law on our side, how could it go wrong?

Yet in one particular preliminary hearing at VCAT it seemed to me that the law isn’t quite as objective as it might sometimes appear, and that individual objectors and community groups can face serious hurdles when it comes to getting a fair hearing.

That said, it’s been an enjoyable and somewhat novel experience to be able to make a sensible, rational argument based on evidence, and to know that regardless of what the opposing parties might say, your evidence will be given due consideration by people experienced in reading through the smokescreen.

4. Self control: managing outrage in a silent session

Being able to express my outrage vocally at Environment Victoria is a tool that gets me through the various crazy coal announcements or media coverage of climate issues we might face on any given day.

Unfortunately, this vocal expression of outrage is not quite so acceptable in a VCAT hearing where I sat silently for four and a half weeks.

Big polluters will still make outrageous claims, but extreme widening of the eyes is about as far as ones physical expression of outrage can go.

Deep breaths, and silent preparation of your counter argument is as far as outrage management goes within the walls of VCAT. It was a difficult lesson at first, but one I’d mastered in the end. I certainly found it easier than one of my colleagues who left in deep frustration never to return after one half-day.

5. Intestinal fortitude has its ups

An Environment Victoria member commented to me that the legal challenge we had embarked upon showed that the organisation ‘had guts’. Separately our barrister made a similar observation but with somewhat more of a verbal flourish, congratulating our ‘intestinal fortitude’.

Environment Victoria supporters far and wide have been inspired by the decision to take legal action to stop HRL. They recognise the significance of the decision to the organisation, but understand that in order to make big changes for our environment we need to take equally big actions.

This in turn has inspired others across the community to support the campaign. Donations to make this campaign possible have come from unexpected quarters in response to our appeal for help. New volunteers stepped forward to help gather signatures to the petition to stop HRL, and our members and supporter base was reinvigorated by playing their part in this groundbreaking campaign.

We couldn’t have got through it without that support, but the decision to take a risk and step up to the action we knew was necessary inspired many others to play their part their part too.

Regardless of the outcomes, intestinal fortitude has paid off. We’ve built a strong campaign, engaged thousands of new people across the community on the issue of new polluting coal, built strong alliances, and focused our arguments in ways we wouldn’t have done without this legal challenge. Together we’ve shown the community, the government and the big polluters that when it comes to taking big actions to affect change for our environment, we’re up to the task. And we’ve proved that with the right strategy, the community will back those big actions.

We thank you for your ongoing support for this campaign thus far. We’ve still got a long way to go, and we know that it won’t be easy. But that hasn’t stopped us yet.

We expect a decision on the VCAT appeal within the next six weeks. We’ll keep you up-to-date with any news through our Safe Climate Bulletin. Sign up here