Dominating the political and media sphere is Australia’s commitment to net zero carbon emissions by 2050. This is unsurprising given the fast-approaching 2021 United Nations Climate Change Conference (COP26) and G20, where world leaders will gather and deliver their roadmap on climate action. Australia’s position on climate change has been met with mixed views as the federal government has yet to establish a net-zero target on a national level. Despite the federal government’s lack of progress, the case of Bushfire Survivors for Climate Action Incorporated v Environment Protection Authority [2021] NSWLEC 92 (BSCA v EPA) shows an unprecedented step forward by an Australian Court in holding a statutory body to account for action against climate change.
In the landmark decision of BSCA v EPA, the NSW Land and Environment Court (Court) made an order compelling the states lead environmental regulator in NSW, Environmental Protection Authority (EPA) to develop guidelines and policies to protect the environment from climate change.
The judgment, delivered by Chief Justice Preston, found that the EPA’s statutory duty to ‘develop environmental quality objectives, guidelines and policies to ensure protection from climate change remains unperformed’.
The legal issue
The proceedings were initiated by Bushfire Survivors for Climate Action Incorporated (BSCA), a climate action group consisting of Australian’s who were impacted by the 2019/2020 bushfires.
BSCA sought an order in the nature of mandamus to compel the EPA to perform its statutory duty to develop environmental quality objectives and policies to ensure the protection of the environment from climate change, particularly, by the adoption of policies which seek to limit global temperature rise to 1.5 degrees celcius above pre-industrial levels.
The statutory duty
The duty on the EPA was said to be imposed by section 9(1)(a) of the Protection of the Environment Administration Act 1991 (NSW) (PEOA Act), which provides:
(1) The Authority is required to—
(a) develop environmental quality objectives, guidelines and policies to ensure environment protection, and…..
BSCA’s primary argument was that the duty required by s 9(1)(a) requires ‘developing policy to ensure protection of the environment from significant threats, such as climate change’.
In response, the EPA contended the duty under s 9(1)(a) did not require it to develop instruments of the kind to address a particular aspect of environment protection, such as climate change. Rather, the duty to develop environmental quality objectives, guidelines and policies was to ensure environment protection generally.
BSCA and the EPA adduced evidence regarding the documents that might potentially be instruments of the kind described by s 9(1)(a). In this case, the EPA sought to rely upon 7 documents. His Honour completed his assessment of the documents relied on by the EPA and observed the following:
- 2 of the documents do not meet the statutory description of being the instruments required by s 9(1)(a) because they were not developed by the EPA
- 5 of the documents do not meet the statutory description of the instruments required by s9(1)(a) to ensure environment protection from climate change.
His Honour further commented at [143] that even if the five documents prepared by the EPA could be said to meet the statutory description of instruments required by s 9(1)(a), these documents are not sufficient to ensure protection of the environment in NSW from the threat of climate change. To discharge the duty, the EPA must at least develop environmental quality objectives.
In particular, His Honour assessed the EPA’s Regulatory Strategy which proclaimed the EPA’s important part in the solution to climate change. At paragraph [139], His Honour found that the ‘Regulatory Strategy lacks any details as to what it is involved in the EPA playing this part, how it will play the part, or how it will measure whether it has succeed in playing the part’
The result is that the duty on the EPA under s 9(1)(a) to develop environmental quality objectives, guidelines and policies to ensure environment protection from climate change remains unperformed.
The EPA was ordered to pay BSCA’s costs.
Conclusion
On 10 September 2021, NSW Environment Minister Matt Kean had announced that the NSW EPA will not appeal the Court’s decision requiring the authority to act on climate change. What this means, is that the EPA will now be required to comply with the mandamus order. This will require the EPA to develop instruments, policies and assess its strategies to ensure environment protection from climate change.
BSCA v EPA demonstrates an emerging trend of ‘climate change litigation’, whereby litigants are challenging the ways government bodies and corporations act in response to climate change risks. Not only does the decision demonstrate the emerging judicial attitudes about climate change, but the decision examined the threat and risk to the environment with regard to the scientific evidence behind anthropogenic warming.
