KEY TAKE-OUTS:
- On 26 August 2021, the Bushfire Survivors for Climate Action (“BSCA”) celebrated the ruling handed down by the NSW Land and Environment Court that NSW Environment Protection Authority (“EPA”) has a duty to take serious action on greenhouse gas emissions and climate change.
- This is the first time an Australian Court has given orders to a government to take meaningful action on addressing climate change.
In the recent decision of Bushfire Survivors for Climate Action Incorporated v Environment Protection Authority [2021] NSWLEC 92, the BSCA brought civil enforcement proceedings to compel the EPA to regulate greenhouse gas emissions, arguing that the EPA had not done enough to stop the pollution of greenhouse gases into the atmosphere. The BSCA, represented by the NSW Environmental Defenders Office, are Australians who allege that they have been harmed by bush fires. Chief Justice Preston’s judgment has been called a landmark decision by the National Conservation Council.
The BSCA’s primary argument is that for the purpose of environmental protection in NSW, this includes the protection of the environment from significant threats. The most significant threat being that of climate change, as argued by the BSCA. The BSCA contends the EPA failed to develop such instruments to protect the environment in NSW from such a threat and all current instruments do not in fact ensure, and were not developed for the purpose of ensuring, the protection of the environment in NSW from climate change.
Summarily the BSCA’s argument proposed three issues:
- What is the nature and content of the duty imposed on the EPA by s 9(1)(a) of Protection of the Environment Administration Act 1991 (NSW) (“POEA Act”)?
- Is the EPA in breach of the duty under s 9(1)(a)?
- If so, what order should be made to remedy the breach of duty?
Chief Justice Preston found that section 9(1)(a) of the POEA Act included a duty owed by the EPA to develop instruments of the kind described by the BSCA to ensure the protection of the environment in NSW from climate change. His Honour found the EPA had not fulfilled this duty to protect the environment in NSW from climate change under s 9(1)(a) and therefore has breached its duty.
The Chief Justice remarked: “An order in the nature of mandamus should therefore be made to compel the EPA to perform its duty. The terms of the order should reflect the content of the duty that I have found so that the EPA should be ordered to develop environmental quality objectives, guidelines and policies to ensure environment protection from climate change.”
The EPA had 28 days to appeal this decision. As of 10 September 2021, New South Wales Environment and Energy Minister Matt Kean announced that there will be no appeal to the landmark ruling, that the EPA has a duty to take serious action on greenhouse gas emissions, signalling a major change in climate change policy for NSW.
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