NSW Environment Protection Authority ordered to take action on climate change

The Land and Environment Court of NSW (LEC) has found that the NSW Environment Protection Authority (NSW EPA) has a statutory duty to develop environmental quality objectives, guidelines and policies to ensure environment protection from climate change, and has ordered it to develop such policies.

Snapshot

• The LEC has found that the NSW EPA has a duty to develop instruments which ensure environment protection from climate change under section 9(1)(a) of the Protection of the Environment Administration Act 1991 (NSW) (POEA Act).
• The LEC found that the NSW EPA had breached its duty under section 9(1)(a), as it did not currently have any instruments which fulfilled the duty.
• This decision of Chief Justice Preston of the LEC will likely have far-reaching consequences for how the NSW EPA performs its functions, and may have implications for other government entities and businesses in relation to developing climate policies.
• It opens the door to other challenges about the NSW EPA’s regulation of this issue (for example, in relation to Environment Protection Licences and other regulatory instruments) or of specific industries or activities which currently emit greenhouse gases.

Background

In April 2020, Bushfire Survivors for Climate Action Inc (BSCA) commenced civil enforcement proceedings, seeking orders to compel the NSW EPA to develop instruments under section 9(1)(a) of the POEA Act to ensure protection of the environment from climate change (see our earlier post here).

Specifically, BSCA sought orders to compel the NSW EPA to develop instruments which would be “consistent with limiting global temperature rise to 1.5 degrees Celsius above pre-industrial levels” (amongst other things).

Section 9 of the POEA Act relevantly provides:

9   Powers of Authority relating to environmental quality

(1)  The Authority is required to—

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

(b)  monitor the state of the environment for the purpose of assessing trends and the achievement of environmental quality objectives, guidelines, policies and standards.

(2)  The Authority is required to develop a comprehensive scheme of environmental audit with respect to industry, commerce and public authorities.

Key issues and findings

In light of the NSW EPA’s statutory duty, the key issues in the dispute were:

• the nature and content of the NSW EPA’s duty under section 9(1)(a);
• whether the NSW EPA was in breach of its duty; and
• if the NSW EPA was in breach, what order should be made to remedy the breach.

We explore these issues and the LEC’s key findings below.

Nature and content of the duty

• The NSW EPA argued that the nature of the duty under section 9(1)(a) did not extend to any particular aspect of environmental protection. In particular, it did not extend to a duty to developing instruments to limit global temperature rise to 1.5 degrees Celsius above pre-industrial levels.
• Interestingly, the NSW EPA did not contend that the duty could not encompass a requirement to make policies to protect the environment from climate change, but instead argued that the duty did not extend to making instruments which ensured New South Wales would be protected from climate change.
• In considering the scope of the duty, BSCA and the NSW EPA agreed a statement of facts regarding the causes and consequences of climate change (set out in the appendix below). BSCA relied on the statement of facts (which was based on the evidence of Professor Penny Sackett and the Intergovernmental Panel on Climate Change’s recent Climate Change 2021: The Physical Science Basis – Contribution of Working Group 1 to the Sixth Assessment Report (IPCC Report)) to argue that the duty in section 9(1)(a) therefore included a requirement to develop instruments to ensure protection of the environment from climate change.
• The LEC found that while the NSW EPA had a duty to develop instruments to protect the environment from climate change, the duty did not extend to instruments which sought to limit temperature rise. The LEC noted that instruments developed by the NSW EPA “…could address these matters, and may be the better for doing so”.
• The LEC also found that NSW EPA had a discretion as to the specific content of the instruments made pursuant to section 9(1)(a).

Whether the NSW EPA breached its duty

• The NSW EPA argued that to the extent the duty in section 9(1)(a) required it to make instruments to ensure protection of the environment from climate change, it had already done so.
• The NSW EPA adduced a number of policies and other documents it had prepared, which it argued fulfilled the duty in section 9(1)(a).
• After examining these documents, the LEC found that none fulfilled the requirements of the duty. For example, the LEC considered the:
  • NSW Energy from Waste Policy Statement: the LEC found that the statement did not address greenhouse gas emissions or climate change.
  • Environmental Guidelines: Solid waste landfills (2^nd ed, 2018): the LEC found that although the guidelines might meet the description of the types of documents required by section 9(1)(a), the guidelines did not sufficiently address environment protection from climate change.
  • EPA Regulatory Strategy 2021-2024: the LEC found that the strategy was merely descriptive and did not set any objectives, standards or requirements in connection with climate change.
• More generally in respect of discharging the duty in section 9(1)(a), the LEC stated that (emphasis added):

“In order to discharge the duty, the NSW 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” at [143].

“What is required to perform the duty in s 9(1)(a) … will evolve over time and place in response to the changes in the threats to the environment. This may make it difficult to describe definitively what the duty requires at any particular time or place, because it requires identification of the current threats to the environment. Nevertheless, it should always be possible to identify the current threats that are of greater magnitude and greater impact” at [68].

Order to remedy the breach

• The LEC found that the NSW EPA had breached its duty under section 9(1)(a), as it did not currently have any instruments which fulfilled the duty.
• The duty in section 9(1)(a) is one to “develop” various instruments for the purpose of environmental protection, but it does not require that particular outcomes or goals are achieved.
• The LEC held that:
  • the NSW EPA must develop environmental quality objectives, guidelines and policies to ensure environment protection from climate change; and
  • it will ultimately be a matter for the NSW EPA what the relevant instruments will be developed.

Impact of the decision

The decision is likely to influence how the NSW EPA carries out its functions and regulates environmental impacts, including:

• Other statutory duties: Given the LEC’s finding that the duty as regards climate change includes “the phenomenon itself, as well as its causes and consequences”, it is possible that we will see future consideration of whether the NSW EPA is satisfying its duty in section 9(1)(b) to “monitor the state of the environment for the purpose of assessing trends and the achievement of environmental quality objectives, guidelines, policies and standards.”
• Agreement on the causes and consequences of climate change: It will be interesting to see how the NSW EPA considers the causes and consequences of climate change in future decisions, in light of the agreed statement of facts on causes and consequences of climate change provided in the judgment (see the appendix below). These particular facts will no doubt come up in other litigation and regulatory decisions and may act as a baseline in other forums, such as environmental impact assessment. The reference to the IPCC Report also demonstrates how this report may have practical implications for government and businesses.
• Working with government bodies: The LEC noted that the NSW EPA has a number of other powers in the POEA Act, including to “advise public authorities on performance targets relating to environment protection (s 11) and to direct authorities to do anything within the power of the public authority which will contribute to environment protection (s 12).” The decision may see implications for other government bodies with respect to action on climate change.
• Implications beyond NSW: The decision is part of the growing Australian climate change-related law and recognition of duties in this space (see our post on the Sharma decision here). Throughout Australia, it is typical for environment protection legislation to have mandatory and discretionary policy setting powers. The decision could influence the interpretation of those powers and may incentivise the development of climate-focused policy in jurisdictions where there is a gap.

A copy of the judgment can be found here. It is currently unclear whether the NSW EPA will appeal the LEC's decision.

By Peter Briggs, Partner, Heidi Asten, Partner, Melanie Debenham, Partner, Timothy Stutt, Partner, Mark Smyth, Partner, Tom Dougherty, Senior Associate and Brigitte Rheinberger, Solicitor.

Appendix – NSW EPA and BSCA Statement of Agreed Facts regarding causes and consequences of climate change

1. Emissions of carbon dioxide (CO2) and other greenhouse gases from human activity (including power generation, industry, transport and agriculture) cause a build-up of greenhouse gases in the atmosphere.
2. The build-up of greenhouse gases in the atmosphere traps heat.
3. The build-up of greenhouse gases in the atmosphere leads to global warming, also known as climate change.
4. Anthropogenic greenhouse gas emissions contribute to anthropogenic climate change.
5. Once emitted, greenhouse gases disperse throughout the global atmosphere where they act cumulatively to contribute to anthropogenic climate change.
6. Anthropogenic climate change has the potential to adversely alter all aspects of the natural environment.
7. Anthropogenic climate change has the potential to irreversibly alter all aspects of the natural environment.
8. Direct and indirect greenhouse gas emissions from activities in New South Wales impact on the environment.
9. NSW and Queensland are the two main producing states for black coal in Australia.
10. Australia is one of the world's largest producers and exporters of coal.
11. Global average surface temperature is approximately 1 degree Celsius (ºC) higher than pre-industrial levels as at June 2020.
12. Australia’s climate has warmed by just over 1°C since 1910.
13. 2019 was Australia’s warmest and driest year on record.
14. Globally, 2019 was the warmest year on record without the influence of El Niño.
15. As of 2018, eight of Australia’s top ten warmest years on record had occurred since 2005.
16. As of 2018, sea surface temperature in the Australian region has warmed by around 1°C since 1910.
17. Eight of the ten warmest years for sea surface temperature on record have occurred since 2010 as at June 2020.
18. Anthropogenic greenhouse gas emissions have caused changes in the basic circulation patterns of the atmosphere and the ocean.
19. Anthropogenic greenhouse gas emissions have caused increases in intensity and frequency of many extreme weather events.
20. Anthropogenic greenhouse gas emissions have caused increases in acidity of the oceans.
21. Anthropogenic greenhouse gas emissions have caused rise in sea levels and consequent increases in coastal flooding.
22. Anthropogenic greenhouse gas emissions have caused intensification of the hydrological cycle.
23. Anthropogenic greenhouse gas emissions have caused increases in the frequency and/or duration of heat waves.
24. Anthropogenic greenhouse gas emissions have caused increases in the intensity and/or duration of drought.
25. Anthropogenic greenhouse gas emissions have caused or contributed to an increase in the frequency of extreme heat events in Australia.
26. Anthropogenic greenhouse gas emissions have caused or contributed to a decrease in April to October rainfall of approximately 11 per cent since the late 1990s.
27. Anthropogenic greenhouse gas emissions have caused or contributed to sea levels rising around Australia.
28. Warming of the ocean around Australia has contributed to longer and more frequent marine heatwaves.
29. Anthropogenic greenhouse gas emissions have caused or contributed to marine heatwaves and mass bleaching events on the Great Barrier Reef in 2016 and 2017.
30. Oceans around Australia are acidifying.
31. Acidification of oceans has led to a reduction in coral calcification and growth rates on the Great Barrier Reef, which impacts recovery from coral bleaching.
32. The climate of New South Wales is changing due to global warming.
33. 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.
34. Anthropogenic greenhouse gas emissions have caused the number of hot days across NSW to increasing since the mid-20th century.
35. Anthropogenic greenhouse gas emissions have caused the number of cold nights (temperatures dropping to less than 2°C overnight) to decrease since the mid-20th century.
36. In the period 1911–2013, heatwaves in parts of NSW have become longer, hotter and more frequent.
37. Australia is a signatory to the Paris Agreement.
38. Climate change cannot meaningfully be addressed without multiple local actions to mitigate emissions by sources and remove greenhouse gas emissions by sinks.
39. Global greenhouse gas emissions are currently rising.
40. If there is a 1.5-2.0°C temperature rise (relative to the period 1850-1900), the risk of widespread impacts on the most vulnerable would rise from moderate towards high.
41. If there is a 1.5-2.0°C temperature rise (relative to the period 1850-1900), the aggregated impacts of climate change around the world will increase political tensions and instabilities.
42. If there were a 4°C temperature rise (relative to the period 1850-1900) above preindustrial levels, there is a high to very high risk that most of the world’s ecosystems would be heavily damaged or destroyed.
43. If there were a 4°C temperature rise (relative to the period 1850-1900) above preindustrial levels, extreme weather events would be far more severe and frequent than today.
44. If there were a 4°C temperature rise (relative to the period 1850-1900) above preindustrial levels, the most vulnerable people would increase greatly in number and, as large areas of the world become uninhabitable, migration and conflict would escalate.
45. If there were a 4°C temperature rise (relative to the period 1850-1900) above preindustrial levels the aggregated impacts around the world would significantly damage the entire global economy.
46. If there were a 4°C temperature rise (relative to the period 1850-1900) above preindustrial levels, a cascade of intrinsic tipping points in the climate system could drive ongoing strong warming even if action was taken to reduce emissions.