Australia environment court orders authorities to address climate change

The Land and Environment Court of New South Wales on Thursday ruled that the NSW Environment Protection Authority (NSW EPA) had failed in its duty to ensure the protection of the environment from climate change, and further ordered the environmental watchdog to develop “environmental quality objectives, guidelines and policies to ensure environment protection from climate change”.

The landmark judgment comes as a result of an action filed by the Bushfire Survivors for Climate Action (BSCA), a climate action group, which sought an order to compel the NSW Environment Protection Authority (NSW EPA) to perform its statutory duty under the Protection of the Environment Administration Act 1991 (NSW) to develop environmental quality objectives, guidelines and policies to ensure the protection of the environment from climate change. They further claimed that the instruments that the Authority had developed did not ensure, and were not developed for the purpose of ensuring, the protection of the environment in New South Wales from climate change.

The Environmental Authority in turn argued that any assessment of the Court’s duty had to take the policy context of the NSW EPA’s functions under the POEA Act, and that since the EPA was subject to the to the control and direction of the Minister, the EPA’s duty had to be considered in the context of the policies adopted by the New South Wales Government. The Authority further argued that it had a large discretion in the exercise of its duties and that the court could only interfere with the EPA’s actions on the grounds of unreasonableness.

In its decision, the Court agreed with the Claimants, holding that:

 “(…)In order to discharge the duty, the EPA must at least develop environmental quality objectives, guidelines and policies to ensure the protection of the environment from threats of great magnitude and impact. Climate change is an exemplar of such a threat to the environment. The development of environmental quality objectives, guidelines and policies directed towards ancillary or insignificant causes or consequences of climate change is not sufficient to discharge the duty in s 9(1)(a) of the POEA Act.”

The decision, which is the first of its kind in Australia, is likely to be considered as a great boost to climate change related litigation and is further expected to enhance  existent climate change-related law and duties in the country.

In a statement, the NSW EPA, which has 28 days to appeal the decision, said that it was “reviewing the judgment and implications for the EPA”.