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The New South Wales Land and Environmental Court Thursday ruled that the NSW Environment Protection Authority (NSW EPA) had failed in its duty to protect the environment from climate change, and further ordered the environmental watchdog to develop “targets , environmental quality guidelines and policies to ensure the protection of the environment against climate change ”.
The historic judgment follows an action brought by the Bushfire Survivors for Climate Action (BSCA), a climate action group, which has asked for an order to compel the NSW Environmental Protection Authority (NSW EPA) fulfill its legal obligation under the Environmental Protection Administration Act 1991 (NSW) develop environmental quality objectives, guidelines and policies to protect the environment from climate change. They further asserted that the instruments developed by the Authority did not guarantee and were not developed with the aim of ensuring the protection of the environment of New South Wales from climate change.
The Environmental Authority in turn argued that any assessment of the Court’s duty must take into account the political context of NSW EPA’s functions under the POEA Act, and that since the EPA was subject to oversight and Under the minister’s leadership, the EPA’s obligation had to be seen in the context of the policies adopted by the NSW government. The Authority further argued that it had wide discretion in the exercise of its functions and that the court could only interfere with EPA’s actions on unreasonable grounds.
In its decision, the Court ruled in favor of the Plaintiffs, holding that:
“(…) In order to fulfill its duty, the EPA must at least develop environmental quality objectives, guidelines and policies to ensure the protection of the environment against threats of great magnitude and impact. Climate change is one example of such a threat to the environment. The development of environmental quality objectives, guidelines and policies focused on the secondary or insignificant causes or consequences of climate change is not sufficient to fulfill the obligation under Article 9 (1 ) (a) of the POEA Act.
The decision, which is the first of its kind in Australia, is likely to be seen as a big boost to climate change litigation and is further expected to strengthen existing climate change laws and obligations in the country.
In a declaration, the NSW EPA, which has 28 days to appeal the ruling, said it was “reviewing the ruling and its implications for the EPA.”
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