NSW EPA subject to legal action due to climate change inaction

A community group of bushfire survivors has commenced proceedings in the NSW Land and Environment Court (LEC) against the NSW Environment Protection Authority (EPA) to encourage or compel the development of policies to address NSW’s greenhouse gas emissions.

Snapshot

• Bushfire Survivors for Climate Action Inc (BSCA) has filed civil enforcement proceedings in the LEC against the NSW EPA.
• BSCA seeks orders to compel the EPA to develop policies to regulate NSW’s greenhouse gas emissions.
• This case confirms the growing role that courts are playing in responding to climate change, particularly in light of perceived political or regulatory inaction.

Community group sues NSW EPA

On 20 April 2020, BSCA filed civil enforcement proceedings against the NSW EPA in the Class 4 jurisdiction of the LEC.

BSCA describes itself as a group of “bushfire survivors, firefighters, local councillors” who “have joined together to demand the Government take immediate action on climate change”.

BSCA is represented by the Environmental Defenders Office (EDO).

BSCA flags a policy failure to combat climate change

The EDO states that BSCA is seeking orders to:

• “compel the EPA to protect the environment by regulating the state’s greenhouse gas emissions”; and
• “perform its duty according to law, and protect the people and environment of NSW from global warming”.

The EDO states that it will argue that the EPA has failed to adopt policies to address climate change and to regulate NSW’s emissions, which is a breach of section 9(1)(a) of the Protection of the Environment Administration Act 1991 (NSW). That section requires the EPA to “develop environmental quality objectives, guidelines and policies to ensure environment protection”.

A growing trend to compel action 

This case will join the growing number of international and Australian cases that have dealt with climate change. For example:

• Massachusetts v Environmental Protection Agency, 549 US 497 (2007), where the US Supreme Court ordered the US Environmental Protection Agency to reconsider its refusal to regulate greenhouse gas emissions from motor vehicles and to give reasons based in statute if it again declines to regulate those emissions;
• Netherlands v Urgenda Foundation, ECLI:NL:HR:2019:2007, where the Supreme Court of the Netherlands ordered the Government to reduce emissions by at least 25% compared to 1990 by the end of 2020; and
• Gloucester Resources Ltd v Minister for Planning (2019) 234 LGERA 257, where Preston CJ of the LEC dismissed an appeal against the Minister’s refusal of development consent to an open-cut coal mine. Although Preston CJ held that consent should be refused on the basis of the proposed mine’s unacceptable planning, visual and social impacts alone, his Honour found that the direct and indirect greenhouse gas emissions from the project were a further reason for refusing consent.

Whether or not BSCA’s claim ultimately succeeds, the commencement of this legal action serves as a powerful reminder that the courts can and do play an increasingly important role in addressing climate change, especially when the public perceives political or regulatory action to be inadequate.

We will continue to monitor the proceedings and report on any key updates.

By Peter Briggs, Partner, Tom Dougherty, Senior Associate, and Zhongwei Wang, Solicitor.

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