‘Really big win’: NSW environmental watchdog ordered to address climate change

In a landmark ruling, a NSW court has ordered the state’s environmental watchdog to take action to address climate change.

In a judgment on Thursday, Chief Judge of the Land & Environment Court Brian Preston ordered the Environment Protection Authority (EPA) “to develop environmental quality objectives, guidelines and policies to ensure environment protection from climate change”.

Findings in NSW’s Land and Environment Court that the EPA must set objectives, guidelines and policies for greenhouse gas emissions could set a precedent for other jurisdictions.Credit: Nick Moir

The judgment hinged on the interpretation of the duties imposed on the agency, particularly section 9(1)(a) of the Protection of the Environment Administration Act 1991. The EPA, which regulates a range of sectors from forestry to pollution controls, had accepted climate change was a global problem but argued no local action by the agency alone could address the problem.

The order for the EPA to address climate change was welcomed by the Environmental Defenders Office, which had argued the case on behalf of the Bushfire Survivors for Climate Action following the record 2019-20 bushfires that scorched more than 5 million hectares in NSW alone.

“It’s a really big win,” Elaine Johnson, a director of EDO’s legal strategy, said. “It means [the EPA] has to do something to ensure there is protection against climate change.”

While Justice Preston did not specify the action the agency should take, the steps could range from putting a price on carbon to placing caps on pollution or setting safe levels in pollution licences, Ms Johnson said.

The ruling comes just weeks after the Intergovernmental Panel on Climate Change released its latest report showing how human activities are warming the planet by burning fossil fuels and other activities.

“The next 10 years are really critical,” Ms Johnson said. “We need rapid and deep emissions cuts.”

An EPA spokeswoman said the agency was reviewing the order and its implications for the agency.

“The EPA is an active government partner on climate change policy, regulation and innovation,” the spokeswoman said. “It is a part of the whole-of-government approach to climate change embodied by the NSW Climate Change Policy Framework and Net Zero Plan”, including supporting industry to cut emissions.

The EDO’s Ms Johnson said the court’s decision was the first in Australia to find that a government agency has a requirement to address climate change.

“It’s breaking new ground,” she said, adding that other states could face similar legal challenges.

Justice Preston also ordered the EPA to pay the applicant’s costs of the proceedings.

Jo Dodds, president of the Bushfire Survivors for Climate Action group, welcomed the decision as “a significant win for everyone who has been affected by bushfires”.

“BSCA members have been working for years to rebuild their homes, their lives and their communities,” Ms Dodds said.

“This ruling means they can do so with confidence that the EPA must now also work to reduce greenhouse gas emissions in the state,” she added. “Global warming is creating the conditions that can lead to hotter and fiercer fires, and all of us need to work to make sure we’re doing everything we can to prevent a disaster like we saw during 2019 and 2020.”

Chris Gambian, chief executive of the Nature Conservation Council, said the court ruling put the state’s biggest polluters on notice.

“Most people will be astonished to learn the EPA has until now not regulated greenhouse gases, which are arguably our most dangerous environmental pollutants,” Mr Gambian said.

“But that will now have to change after the court found the EPA had a duty to address climate change, which is the most significant challenge our society has ever faced,” he said. “This is a great day for environmental justice.”

Justice Preston stated that the EPA’s duty must evolve over time and place to address changes to the threats to the environment, including global warming from greenhouse gas emissions.

“[T]he pollutants of yesteryear, with their concomitant threats to the environment and risks to human health, may no longer be the pollutants of today, which pose different threats to the environment and different risks to human health,” he wrote in his judgment.

Nick Witherow, the principal lawyer at Environmental Justice Australia, said the decision could open up the possibility of similar challenges in other jurisdictions.

But he noted the NSW EPA is governed by its own particular law (the PEOA Act), which is different to those in Victoria and South Australia.

New environment laws were introduced in Victoria from the start of last month that give the EPA greater power to regulate pollutants, including greenhouse gases.

“These laws are new and haven’t been tested, and this [decision in NSW] raises the question of what is possible,” Mr Witherow said.

In March, the Victorian EPA released a long-awaited review of the state’s heavily polluting coal-fired power station licences, which was undertaken to ensure they were compatible with the latest science and “take into account community views and expectations”.

The EPA said it would not force coal power stations to lower their greenhouse gas emissions, following this review and renewal of their licences.

For the first time, it did introduce limits on mercury pollution, and tightened limits on other pollutants such as sulphur dioxide and small particulates, or PM2.5. But no restrictions will be set on greenhouse gases, which would be capped at “approximately current levels”.

Comment was sought from NSW Environment Minister Matt Kean.

Cate Faehrmann, NSW Greens environment spokeswoman said the court was “huge”.

“Climate change is the Number One risk to countless threatened species and their habitat,” Ms Faehrmann said. “It’s therefore very welcome news that the EPA can no longer ignore this major environmental threat and will need to regulate, and aim to prevent, some of its impact.”

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