The evidence is in: A statutory duty to protect against climate change

In a landmark decision, the NSW Land and Environment Court (Court) has found that the EPA has failed in its statutory duty to develop guidelines and policies to protect the environment from climate change and ordered that the EPA develop such policies.

The case was brought by Bushfire Survivors for Climate Action (BSCA), a climate action group who say they have experienced first-hand devastation caused by the Australian bushfires in 2019-20.

The Court’s judgment in Bushfire Survivors for Climate Action Incorporated v Environment Protection Authority [2021] NSWLEC 92² was delivered by Chief Justice Preston on 26 August 2021 and found that the EPA’s statutory duty to ‘develop environmental quality objectives, guidelines and policies to ensure protection from climate change remains unperformed’.³

The Court made an order compelling the EPA to perform its statutory duty, known as an order in mandamus, and ordered that the EPA pay BSCA’s costs of the proceedings. The details of the judgment and its implications are discussed below.

The statutory duty

The Court considered the EPA’s statutory duty under s 9(1) of the Protection of the Environment Administration Act 1991 (NSW) (POEA Act), which provides as follows:

“The Authority is required to— 

(a) develop environmental quality objectives, guidelines and policies to ensure environment protection…

BSCA contended that the EPA had failed to discharge its duty under s 9(1)(a) by reason of its failure to develop instruments to protect the environment in NSW from the threat of climate change. Further, BSCA sought an order in the nature of mandamus to compel the EPA to perform its duty by developing environmental quality objectives, guidelines and policies to ensure environment protection from climate change, specifically by the adoption of policies which seek to limit global temperature rise to 1.5 degrees Celsius above pre-industrial levels.

The EPA defended the action and contended that it did not have a duty to develop instruments of the kind described in s 9(1)(a) to ensure the protection of the environment from climate change. In the alternative, the EPA argued that even if it did have a duty, it had discharged that duty already by reason of its existing instruments which seek to ensure the protection of the environment and the existing EPA Regulatory Strategy 2021-24 (Regulatory Strategy) which identifies climate change as a regulatory challenge.

In defining the nature and scope of the duty contained in s 9(1)(a), the Court had regard to the context and purpose of the duty⁴. For reasons which are set out in the judgment, this necessitated reference to the objectives of the EPA itself, which are set out in s 6(1) of the POEA Act. The first objective in s 6(1) is “to protect, restore and enhance the quality of the environment in NSW, having regard to the need to maintain ecologically sustainable development”.⁵

The Court referred to its earlier decision in Rocky Hill⁶ and noted that the protection of the environment from climate change implements the principles of ESD, including the precautionary principle, intergenerational equity and the polluter pays principles.⁷ This was supported by evidence from Professor Penny Sackett and the recent report by the Intergovernmental Panel on Climate Change.⁸

EPA’s regulatory policy

In finding that the EPA’s statutory duty remained unperformed, the Court considered documents and policies tendered by the EPA which in its submission, fulfilled its duty under s 9(1)(a). Of the seven documents considered by the Court, the Court concluded that “none of the documents on which the EPA sought to rely [was] an instrument for the purposes of s 9(1)(a) to ensure the protection of the environment from climate change”.⁹ In relation to the Regulatory Strategy, the Court stated 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”¹⁰.

In ordering the EPA to fulfil its statutory duty, the Court noted that the EPA retained the discretion to choose the manner in which it discharged its duty in developing instruments under s 9(1)(a). It rejected BSCA’s argument that the instruments developed must specifically regulate climate change in a way which is “consistent with limiting global temperature rise to 1.5 degrees Celsius above pre-industrial levels”.¹¹ Although the Court found that the Regulatory Strategy was not itself an environmental quality objective, guideline or policy it did note that it “could serve to inspire the EPA to develop such an instrument under s 9(1)(a) by taking one or more of the actions discussed in the Regulatory Strategy.”¹²

In the circumstances, the Court determined that a mandamus should be issued to compel the EPA to discharge its duty¹³ and ordered that:

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.

Although the EPA vigorously defended the proceedings, it is worth noting that the statement of facts jointly filed by the parties in the proceedings included the following agreed facts:

1. The climate of New South Wales is changing due to global warming.
2. Anthropogenic greenhouse gas emissions have caused a 1°C increase in average temperature in New South Wales as between the period 1960–90 and 1990 to 2018.¹⁴

Given the agreed position in relation to the threat of climate change to NSW and its explicit acknowledgement in the EPA’s Regulatory Strategy, it will be interesting to see how the EPA responds to the Court’s decision and the manner in which it develops policies and guidelines in discharging its duty to further the protection of the environment in NSW against climate change.

Evidence on climate change

The Bushfire Survivors case represents a significant moment in Australian climate change litigation for a number of reasons, including being the first time an Australian court has made a preliminary ruling allowing evidence on climate change to be filed in a case involving an alleged failure by a government agency to perform a statutory duty.

In October 2020, a preliminary hearing before Justice Moore resulted in the grant of leave to file expert evidence on climate change on the condition that the questions posed to the expert, Professor Penny Sackett, by the BSCA would be addressed regarding the “impact on the environment of New South Wales”.¹⁵

In her evidence, Professor Sackett pointed to the “devastating Australian 2019/2020 bushfires, which were at least 30% more likely because of climatic changes caused by humans”.¹⁶ Professor Sackett concluded her evidence by stating that: “[I]t is reasonable to state that unabated climate change is the greatest threat to the environment and people of New South Wales.”¹⁷

The evolution of climate change law

One of the most interesting matters addressed in the judgment is the view of Preston CJ that regard is to be had to the “general and ambulatory language” of s 9(1)(a) of the POEA Act, which should be construed as “always speaking”.¹⁸ This, the Court stated, permits the interpretation of the relevant duty to embrace change over time and develop protections against threats to the environment in NSW, which will change over time and place and in magnitude and impact.¹⁹ This is a clear indication from the Court that where planning and environment legislation incorporates a requirement to have regard to ESD principles, the content of those principles will change over time to address evolving environmental challenges, such as climate change.

The Bushfire Survivors decision is part of a growing body of case law in Australia recognising the impact of climate change on the environment. It follows closely on the heels of the decision of the Australian Federal Court in Sharma (By her Litigation Representative Arthur) v Minister for the Environment²⁰, where the Court declared that the Minister for the Environment owed a duty of care to avoid causing personal injury to Australian children arising ‘from emissions of carbon dioxide into the Earth’s atmosphere’²¹. The duty of care in that case was a relevant consideration in considering an approval under the Environment Protection and Biodiversity Conservation Act 1999 (Cth) required for the proposed extension of the Vickery Coal Project.

The decision also follows the earlier decision of Preston CJ in the Land and Environment Court in Rocky Hill²² where the principles of ESD and climate change impacts were key considerations in the decision to refuse the grant of development consent for the Rocky Hill Coal Project.²³

In all three cases, climate change evidence was considered by the Courts, with each judgment specifically referencing reports from the IPCC.

Climate change law going forward

1. Applicants in Australian Courts are increasingly seeking the performance of statutory duties in relation to climate change mitigation, even where the relevant legislation does not refer to climate change specifically;
2. Expert evidence on ESD and climate change is being more commonly accepted by Australian Courts, particularly scientific reports produced by the IPCC that include guidelines to reduce carbon emissions and limit global temperature increase;
3. Litigation is increasingly being used to enforce obligations owed to the public in relation to climate change, enforcing the obligations of statutory bodies (Bushfire Survivors) and government decision-makers (Sharma, Rocky Hill).
4. Litigation against private actors may be on the judicial horizon, following international jurisprudence such as Milieudefensie et al v. Shell, in which Shell Oil was ordered by a Dutch Court to reduce its direct and indirect emissions by at least 45% by 2030, compared to 2009 levels. A similar claim has been filed by the EDO against Santos in the Australian Federal Court recently, alleging that the company’s proposed pathway to net zero emission by 2040 constitutes misleading or deceptive conduct under the Corporations Act 2001 (Cth) and the Australian Consumer Law.

This article was written by Danielle Le Breton, Partner, Jordie Pettit, Solicitor and Vanessa Samaras, Law Graduate.

¹ Gloucester Resources Ltd v Minister for Planning [2019] NSWLEC 7 (Rocky Hill).
² Bushfire Survivors for Climate Action Incorporated v Environment Protection Authority [2021] NSWLEC 92 (Bushfire Survivors).
³ Bushfire Survivors, at [142].
⁴ Bushfire Survivors at [20]-[21]; SZTAL v Minister for Immigration and Border Protection (2017) 262 CLR 362.
⁵ Bushfire Survivors at [41]; Protection of the Environment Administration Act 1991 (NSW), s 6(1)(a)).
⁶ Gloucester Resources Ltd v Minister for Planning (2019) 234 LGERA 257; [2019] NSWLEC 7.
⁷ Bushfire Survivors at [61]; Gloucester Resources Ltd v Minister for Planning (2019) 234 LGERA 257; [2019] NSWLEC 7 at [488], [498].
⁸ Bushfire Survivors at [60]; Climate Change 2021: The Physical Science Basis. Contribution of Working Group 1 to the Sixth Assessment Report of the Intergovernmental Panel on Climate Change.
⁹ Bushfire Survivors at [17].
¹⁰ Bushfire Survivors at [136].
¹¹ Bushfire Survivors at [16].
¹² Bushfire Survivors at [141].
¹³ Bushfire Survivors at [144]; Water Conservation and Irrigation Commission (NSW) v Browning (1947) 74 CLR 492 at 504; [1947] HCA 21.
¹⁴ Bushfire Survivors at [76]
¹⁵ Bushfire Survivors for Climate Action Inc v Environment Protection Authority [2020] NSWLEC 152, at [29].
¹⁶ Bushfire Survivors at [73].
¹⁷ Bushfire Survivors at [74].
¹⁸ Bushfire Survivors at [66].
¹⁹ Ibid.
²⁰ Sharma (By her Litigation Representative Arthur) v Minister for the Environment [2021] FCA 560; Sharma v Minister for the Environment (No 2) [2021] FCA 774 (Sharma).
²¹ Sharma v Minister for the Environment (No 2) [2021] FCA 774, at [1].
²² Gloucester Resources Ltd v Minister for Planning [2019] NSWLEC 7.
²³ Ibid, at [8].