The Environment Matters: NSW’s Land and Environment Court Orders Environmental Watchdog to Act on Climate Change

According to a recent landmark decision in NSW’s Land and Environment Court, it was held that State’s environmental watchdog, the Environmental Protection Authority (EPA), has a duty to take into consideration the protection of the environment from climate change. It was found by the Court that this duty is not currently being discharged adequately.

The decision is part of a growing body of climate change litigation.

Bushfire Survivors for Climate Action Inc v Environmental Protection Authority (2021)

Bushfire Survivors for Climate Action (BSCA) brought civil enforcement proceedings in April 2020 to compel NSW’s EPA to regulate greenhouse gas emissions. The decision was delivered on 26 August 2021.

BSCA consists of survivors, firefighters and local authorities that have been affected by the recent calamitous bushfires that have been linked to climate change.

The defendant, the NSW EPA, is an independent authority responsible to the Minister for the Environment. It was formed in 1991 with a statutory duty, originally under the Protection of the Environment Administration Act 1991, to protect the State’s environment. To discharge its duty, it issues protection licences, ensures compliance, and imposes fines and clean-up orders.

The NSW Land and Environment Court has exclusive jurisdiction in environmental matters in the State. It deals with development approvals, compulsory purchase compensation, planning and land use, as well as prosecutions for environmental offences.

Advice from Szabo & Associates Solicitors

Szabo & Associates Solicitors are experienced in acting for and on behalf of Councils, businesses and private clients that are required to attend the Land and Environment Court. We have the expertise to guide clients through both the Land and Environment Court and appeals in the Supreme Court. 

What were the Land and Environment Court’s findings?

As climate change is seen as a key threat to the environment, the BSCA argued that it follows that protecting the environment from climate change is part of the EPA’s remit. As part of their evidence, the BSCA presented the most recent Intergovernmental Panel on Climate Change report. This report included commentary on how rising temperatures in Australia could exceed the global average with accompanying drier conditions.

The EPA argued that it is not required to address any particular environmental issue such as climate change. It sought to rely on existing documents to demonstrate that it had fulfilled its statutory duty.

The Court agreed with the BSCA. It pointed to the evidence to conclude that ‘the threat to the environment of climate change is of sufficiently great magnitude and sufficiently great impact as to be one against which the environment needs to be protected’.

‘Duty to develop climate change protection instruments’

The Court found that the duty to develop environmental protection instruments includes the duty to develop climate change protection instruments. The EPA had failed to fulfil its duty to protect from this threat because none of the instruments it presented adequately provided for protection from climate change. The documents presented were either not prepared by the EPA or were ‘directed towards ancillary or insignificant causes or consequences of climate change’.

The EPA’s duty cannot be specifically defined as it will evolve in response to prevailing threats. In NSW, the threat of climate change to the environment is such that it needs to be part of the environmental protection remit. The Court ordered the EPA to prepare environmental quality objectives, guidelines and policies to include the measurement and regulation of greenhouse gas emissions in the State. 

What is the impact of this decision?

Around the world, litigation is having an increasingly significant role in holding governments to account over climate change and pollution. Nevertheless, the Bushfires case breaks new ground in Australia. It is the first time an Australian Court has made a ruling allowing evidence on climate change to be filed which involves a failure by a government agency to perform a statutory duty. The order to take action to address climate change paves the way for more targeted climate change policies in NSW through, for example, the EPA’s licensing function.

It is clear that the EPA’s duty to protect the State’s environment does include climate change impacts. The Court found that the EPA is not adequately fulfilling this duty at the moment. Accordingly, the Court ordered the EPA to develop ‘instruments’ that are more in line with protecting the NSW environment from climate change. The ruling itself did not outline the specific actions the EPA must take but it did point to a direction of travel: the EPA’s duty must evolve over time and place so as to address emerging new threats to the environment such as greenhouse gas emissions.

Broader implications of the Bushfire Survivors case

There are potentially broader implications stemming from the decision.

In future, scientific evidence on climate change will be more commonly accepted and form the basis of claims. Litigation may increasingly enforce obligations on statutory bodies and governments in respect of climate change.

There is also the potential for the expansion of a duty of care into the private sector for companies and major projects which involve significant greenhouse gas emissions. In the Netherlands a recent ruling demonstrated how the private sector could owe a duty of care in respect its greenhouse gas emissions. Shell Oil was ordered by the Dutch Courts to reduce its emissions by 45% by 2030 as compared with 2019.

There have already been claims brought against companies regarding the coverage of climate change risks in statements and disclosures about their operations to investors and other stakeholders. Claimants are likely to become increasingly innovative in the types of claim brought against private companies, including their directors and advisers, based on a duty of care to protect the environment from adverse impacts their activities may have on climate change.

Contact our Land and Environment Court Lawyers in Sydney, NSW

Szabo & Associates Solicitors are experienced in offering advice on all Land and Environment Court matters. If you require the help of our expert professionals, please call us on 02 9281 5088 or complete our online contact form.