Landmark ruling against EPA will see change in climate change policy in NSW

On 26 August 2021, Chief Judge Preston of the Land and Environment Court of NSW handed down the decision in Bushfire Survivors for Climate Action Incorporated v Environment Protection Authority [2021] NSWLEC 92. In a landmark ruling, Preston CJ held that the NSW Environment Protection Authority (EPA) had failed to develop environmental quality objectives, guidelines and policies to ensure environment protection from climate change and ordered the statutory body to develop such instruments moving forward.

The proceedings

The Bushfire Survivors for Climate Action (BSCA) sought a mandamus order to compel the EPA to perform its non-delegable duty to develop environmental quality objectives, guidelines and policies to ensure the protection of the environment from climate change in NSW. This duty exists under section 9(1)(a) of the Protection of the Environment Administration Act 1991 (NSW) (POEA Act), which requires the EPA to “develop environmental quality objectives, guidelines and policies to ensure environment protection”.

BSCA argued that, having regard to the gravity of the threat posed by climate change, and with the EPA being charged to ensure “environment protection”, there is no “evident or intelligible justification” for the EPA in not developing a policy addressing climate change and its causes and consequences. BSCA relied on evidence from Professor Sackett and the IPCC reports (the most recent, Sixth Assessment Report having been published months prior) which postulate that the current policy commitments are not effective to reduce greenhouse gas emissions at a level required to reduce the threats to the environment and people of Australia and NSW.

The judgment: a duty enlivened

While Preston CJ held that there was a duty to develop environmental quality objectives, guidelines and policies to ensure the protection of the environment in NSW from climate change, his Honour did not agree with BSCA that these instruments were required to contain the level of specificity sought by the BSCA such as regulating sources of greenhouse gas emissions in a way consistent with limiting global temperature rise to 1.5°C above pre-industrial levels. This is because the EPA retains a discretion as to the specific content of the instruments it develops under section 9(1)(a) to ensure the protection of the environment from climate change.

Even so, his Honour held that “environmental protection” is an inclusive definition and is to be taken as a “wide concept” that was tied to the objectives of the EPA, including to maintain ecologically sustainable development, which encompasses the precautionary principle and inter-generational equity. In assessing policy documents of the EPA, Preston CJ was critical of the EPA’s Regulatory Strategy and noted that “the description of the environmental issue of climate change is so general and trite that it fails to provide any foundation for the discussion of the regulatory challenge.” Preston CJ found that drafters of the statutory provisions under the POEA Act to which the EPA source its power were drafted in general language and “should be regarded as ambulatory” and therefore capable of evolving over time to respond to changes in the threats to the environment, including climate change.

What next?

As Preston CJ observed in his judgment, a mandamus order can only compel the EPA to perform its duty to develop instruments of the kind described in section 9(1)(a) of the POEA Act. It cannot prescribe the specific content of the instruments.

However, the EPA is subject to the control and direction of the Minister and as a consequence, and as Preston CJ observed, the actions of the EPA will need to be considered in the context of the policies adopted by the NSW Government, including the NSW Climate Change Policy Framework (adopted in 2016) and the Net Zero Plan Stage 1: 2020-2030 (adopted in 2020).

It may be the case that the EPA rely on Preston CJ’s observations on its Regulatory Strategy to plug the holes particularly to identify what approaches, tools or measures it will use to “ensure environment protection from climate change”. Whatever the final form, it is likely that these new policy documents will impact on a number of businesses and industries in NSW, particularly emissions intensive industries and result in an additional policy framework within which impacts on climate change may be assessed and regulated.