Posted on September 2, 2021 by Liam Mulligan and Sue Puckeridge 11

EPA ordered to develop policies and guidelines to protect environment from climate change

In a significant recent decision,  the Land and Environment Court has ordered the NSW Environment Protection Authority (‘EPA‘) to develop environmental quality objectives, guidelines and policies to ensure the protection of the environment from climate change.

The case was brought by a climate action group, Bushfire Survivors for Climate Action (‘BSCA‘).  BSCA sought orders from the Court compelling the EPA to prepare policies and guidelines to protect the environment from the effects of climate change. BSCA claimed that the EPA was under a statutory duty, imposed by s 9(1)(a) of the Protection of the Environment Administration Act 1991 (‘POEA Act‘), to prepare such policies and guidelines. Specifically, BSCA argued that the EPA was required to prepare policies and guidelines to ensure the protection of the environment from climate change in a way “consistent with limiting global temperature rise to 1.5 degrees Celsius above pre-industrial levels.”

BSCA alleged that the EPA had failed to fulfill the duty by preparing any such policies. On that basis, BSCA sought an order in the nature of mandamus – that is, an order requiring a person the subject of a duty to perform that duty – requiring the EPA to prepare the relevant policies and guidelines.

Section 9(1)(a) of the POEA Act provides that: ‘The Authority [the EPA] is required to…develop environmental quality objectives, guidelines and policies to ensure environment protection‘.  However, s 13 of the POEA Act provides that the EPA is subject to the control and direction of the Minister (being the Minister for Energy and the Environment).  The EPA argued that the actions of the EPA should be viewed in the context of the policies adopted and implemented by the NSW state government – such as the NSW Climate Change Policy Framework, adopted in 2016, and the Net Zero Plan Stage 1: 2020-2030, adopted in 2020. As a statutory authority subject to the control and direction of the Minister, the EPA submitted that it was entitled to take into account New South Wales government policy when determining what actions it should take in the exercise of its functions under the POEA Act.

The Court rejected this argument, and upheld BSCA’s primary argument, being that the duty under s 9(1)(a) of the POEA Act, in the current circumstances where significant impacts from climate change were being experienced in NSW, includes a duty to develop instruments to ensure the protection of the environment in New South Wales from climate change.

In establishing the risk to the environment posed by climate change, BSCA relied on the reports of the Intergovernmental Panel on Climate Change (‘IPCC‘), including the recently released Climate Change 2021: The Physical Science Basis. Contribution of Working Group 1 to the Sixth Assessment Report of the Intergovernmental Panel on Climate Change report.  The Court appeared to accept this evidence, finding (at [69]) ‘On the evidence, at the current time and in the place of New South Wales, the threat to the environment of climate change is of sufficiently great magnitude and sufficiently great impact as to be one against which the environment needs to be protected‘.

BSCA also argued that if the Court  was to make the orders sought it should also order that the policies for which it contended contain specific details (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 Court refused to go this far, finding that this duty did not require the instruments to contain the level of specificity and detail contended for by BSCA . 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.

Interestingly, in reaching this conclusion the Court applied fairly orthodox principles of statutory construction – such as that the nature and scope of the duty created by s 9(1)(a) is to be determined by reference to its text, considered in light of its context and purpose (applying  SZTAL v Minister for Immigration and Border Protection (2017) 262 CLR 362). The Court also looked to the dictionary for assistance in determining the meaning of ‘ensure’ as used in s 9(1)(a) of the Act, finding that it had its natural and ordinary meaning and the use of the word ‘ensure’ imparted a duty with strict liability (following ASIC v Cassimatis (No 8) (2016) 336 ALR 209).

Finally, the Court rejected the EPA’s contention that it had already promulgated policies and guidelines to protect the NSW environment from climate change (or in the alternative, that the NSW government had done so and the EPA was entitled to rely on those policies). The EPA put forward some 426 documents (reduced to 7 in the EPA’s closing submissions) which it said met the description of policies or guidelines of the kind referred to in s 9(1)(a) of the POEA Act. Of the final 7 documents relied on, 5 had been prepared by the EPA itself and the other two were the NSW state government policies referred to above.  Dealing with each policy in turn and in some detail, the Court found that none answered to the statutory description in s 9(1)(a) – the five EPA documents because they did not ‘ensure’ the protection of the environment from climate change, and the two state government policies because they were not documents prepared by the EPA as required by s9(1)(a) of the POEO Act.

The Court made orders requiring the EPA to ‘develop environmental quality objectives, guidelines and policies to ensure environment protection from climate change‘. In formulating the orders, the Court declined to adopt the formulation proposed by BSCA, being to produce policies ‘consistent with limiting global temperature rise to 1.5 degrees Celsius above pre-industrial levels‘ and left this to the discretion of the EPA. However, the case is nonetheless significant as the Court has found that a public authority, under the control and direction of the Minister, has failed to discharge its duty to protect the environment from climate change and has directed the authority to perform that duty.

This case, along with the landmark finding in Sharma by her litigation representative Sister Marie Brigid Arthur v Minister for the Environment [2021] FCA 560 – in which the Federal Court found that the Federal Environment Minister owes a duty of care to Australia’s young people not to cause them physical harm in the form of personal injury from climate change – confirm the increased significance of climate change in environmental jurisprudence. It also indicates that the Courts are willing to use the tools at their disposal to require, to the extent that they can, decision-makers to properly account for the impacts of climate change in the decisions that they make.

You can read the case – Bushfire Survivors for Climate Action Incorporated v Environment Protection Authority [2021] NSWLEC 92 – here.