In a welcome landmark victory in the NSW Land and Environment Court today, the Environmental Protection Agency (EPA) has been ordered to take action on climate change. This is the first time a government organisation has been compelled to act on climate change in accordance with a statutory duty in Australia.
The court found that the EPA's statutory duties include a duty to develop objectives, guidelines and policies to ensure the protection of the environment from climate change, and that it had not fulfilled its duty to protect the state’s environment.
It may come as a surprise to many that the EPA currently does not have specific policies in place to mitigate greenhouse gas pollution, one of the most dangerous forms of pollution in the long term.
This is the first decision of its kind in Australia, and follows hot on the heels of the Federal Court of Australia’s decision in May in Sharma v Minister for the Environment, which determined that the federal Minister for the Environment owes a duty to take reasonable care when exercising certain powers under federal planning and environment legislation not to cause harm to Australian children arising from the emission of additional carbon dioxide into the atmosphere.
Climate change litigation will only continue to gather pace if federal and state governments continue to adopt inadequate measures to mitigate and adapt to climate change.
NSWCCL looks forward to seeing what the EPA can come up with to help NSW do its fair share to mitigate the threat of climate change.
The court summarised its findings in paragraphs 16-19 of its judgement:
"Dealing with BSCA’s primary argument, I find that the duty under s 9(1)(a) of the POEA Act to develop environmental quality objectives, guidelines and policies to ensure environment protection, in the current circumstances, includes a duty to develop instruments of the kind described to ensure the protection of the environment in New South Wales from climate change, although this does not demand that such instruments contain the level of specificity contended for by BSCA, such as regulating sources of greenhouse gas emissions in a way consistent with limiting global temperature rise to 1.5°C above pre-industrial levels. The EPA has a discretion as to the specific content of the instruments it develops under s 9(1)(a) to ensure the protection of the environment from climate change.
I find that the EPA has not fulfilled this duty under s 9(1)(a) to develop instruments of the kind described to ensure the protection of the environment from climate change. None of the documents on which the EPA sought to rely is an instrument for the purposes of s 9(1)(a) to ensure the protection of the environment from climate change.
An order in the nature of mandamus should therefore be made to compel the EPA to perform its duty. The terms of the order should reflect the content of the duty that I have found, so that the EPA should be ordered to develop environmental quality objectives, guidelines and policies to ensure environment protection from climate change.
This resolution of BSCA’s primary argument makes it unnecessary to decide BSCA’s secondary arguments, which were put in the alternative to the primary argument. Nevertheless, aspects of the proper construction of s 9(1)(a) raised by BSCA’s secondary arguments and the EPA’s defence to these arguments are addressed in my determination of the primary argument."
Is this a human rights and freedoms issue?
Yes. Since 2019, NSWCCL has resolved to play our part in the fight for climate justice.
We recognise that anthropogenic climate change is a crucial and urgent civil liberties and human rights issue. A healthy and functional climate system is an essential prerequisite to the exercise of all human rights and civil liberties.
The effects of climate change - from increased incidence of extreme weather events to sea level rise - already endanger human rights and freedoms today. This was starkly demonstrated by the 2019-20 bushfire season and has been repeatedly underscored by the expert Committees responsible for administering the key UN Human Rights Treaties.
In Australia (let alone the rest of the world), basic civil liberties and rights such as the right to life, the right to privacy, family life and the home, the right to minority cultural identity and practice, and the rights of children may have all been compromised by inaction on climate change from, amongst other actors, the NSW and Australian governments.
Warming beyond the level countenanced by the Paris Agreement (preferably under 1.5° degrees, or a maximum of 2° degrees relative to pre-industrial levels) is likely to seriously infringe the fundamental rights of Australians, including the rights to life, property, enjoyment of culture, privacy, physical and mental health, and an adequate standard of living.