On 26 August the NSW Land and Environment Court handed down an historic ruling. Chief Justice of the Court Brian Preston found that the NSW Environment Protection Authority (EPA) has a duty to take serious action on greenhouse gas emissions and climate change. The case was mounted by Bushfire Survivors for Climate Action (BSCA), represented by the Environmental Defenders Office (EDO).
The EDO said: “This is the first time an Australian court has ruled on a government agency failing to perform a statutory duty to address climate change.” The court found “the EPA is compelled by its own legislation to seriously address the state’s greenhouse gas emissions and climate change”.1
BSCA President Jo Dodds said:…the EPA must now also work to reduce greenhouse gas emissions in the state. Global warming is creating the conditions that can lead to hotter and fiercer fires, and all of us need to work to make sure we’re doing everything we can to prevent a disaster like we saw during 2019 and 2020.2
Justice Preston’s ruling says: “The Environment Protection Authority, in accordance with s 9(1)(a) of the Protection of the Environment Administration Act 1991 (NSW), is to develop environmental quality objectives, guidelines and policies to ensure environment protection from climate change.”
In his judgement, Justice Preston wrote that while the EPA had argued it had “developed instruments in ostensible performance of its duty, I have found that those instruments did not meet the statutory description of the instruments required” by the Act.3
The ABC reported that the Court “did not find that the EPA should act on specific targets”, and that the EPA was reviewing the judgement and implications.4
In The Conversation, environmental law academic Laura Schuijers wrote that “…simply having policies and strategies isn’t enough. The court made it clear aspirational and descriptive plans won’t cut the mustard if there’s nothing to ‘set any objectives or standards, impose any requirements, or prescribe any action to be taken to ensure the protection of the environment’.”5
- 1 “Bushfire Survivors Hail Landmark Legal Win On Climate“, EDO website, 26 August 2021
- 2 “Bushfire Survivors Hail Landmark Legal Win On Climate“, EDO website, 26 August 2021
- 3 Bushfire Survivors for Climate Action Incorporated v Environment Protection Authority [2021] NSWLEC 92, decision date 26 August, 2021, NSW Case Law website, http://www.caselaw.nsw.gov.au/decision/17b7569b9b3625518b58fd99
- 4 “Bushfire survivors win landmark climate change case against NSW EPA“, ABC NSW Country Hour, 26 August 2021
- 5 “Bushfire survivors just won a crucial case against the NSW environmental watchdog, putting other states on notice“, The Conversation, 27 August, 2021
IBG comment
- Rapidly reducing Australia’s own emissions and acting strenuously on the world stage are critical to reducing future damage from bushfires. We must also adapt our fire management methods for already locked-in climate change.
- This case, and several others recently, shows that governments cannot just put high-sounding words into legislation and then fail to deliver on them. People notice, they take action, and courts take a dim view.
- Schuijers’ comment that “simply having policies and strategies isn’t enough” reflects IBG concerns with many bushfire documents, notably the way NSW inquiry recommendations are being tracked, with no measures for success.
- The ruling could be a profound step in the right direction…or it could be ignored or side-stepped. Australian governments have in the past amended legislation that has become troublesome.
Independent Bushfire Group 