Climate change is on the agenda. The NSW Environment Protection Authority has a clear duty to develop environmental quality objectives, guidelines and policies to ensure the protection of the environment in NSW from climate change, according to a recent decision of the Land and Environment Court. The Court has ordered the EPA to prepare the documents.

In Bushfire Survivors for Climate Action Incorporated v Environment Protection Authority [2021] NSWLEC 92 the Land and Environment Court (LEC) found that the NSW Environment Protection Authority (EPA) had failed in its duty under section 9(1) of the Protection of the Environment Administration Act 1991 (POEA Act), ordering the EPA to develop environmental quality objectives, guidelines and policies to ensure the protection of the environment in NSW from climate change.

Background

Bushfire Survivors for Climate Action (BSCA), sought an order to compel the EPA to perform a statutory duty under section 9(1) of the POEA Act to develop environmental quality objectives, guidelines and policies to ensure the protection of the environment from climate change.

The broad duty under s9(1)(a) POEA Act requires the EPA to develop environmental quality objectives, guidelines and policies for the protection of the environment. It does not specifically refer to protection from threats created by climate change, or protection from climate change.

BSCA contended that the purpose of environmental protection should be understood to include protection from significant threats like climate change. The duty, they contended, requires the EPA to develop instruments that are specifically consistent with limiting global temperature rise to 1.5 degrees Celsius above pre-industrial levels.

The EPA sought to rely upon 7 existing documents, 5 of which were prepared by the EPA, to show it had fulfilled its duty under section 9(1)(a) of the POEA Act.

Findings of the Court

Preston CJ affirmed that the definition of environmental protection in the context of the duty, is to prevent harm to the environment including air and any layer of the atmosphere, and to further the objectives of the EPA including ecologically sustainable development. Protection of the environment from climate change implements the principles of ESD.

Whilst there is a duty to develop instruments under section 9(1)(a) of the POEA Act, the number, nature, content of the instruments developed are at the discretion of the EPA. This discretion is constrained by the avoidance of unreasonableness and the need for evident and intelligible justification.

The terms of section 9(1) of the POEA Act are drafted broadly to enable adaption to new and evolving environmental threats. That is, the duty cannot be specifically defined as it will change in response to the prevailing environmental threats at any time or place. Preston CJ found that in the current time in NSW the threat to the environment of climate change is of sufficiently great magnitude and sufficiently great impact warranting protection.

Preston CJ found that the EPA breached its duty under section 9(1)(a) of the POEA Act and ordered the EPA to develop environmental quality objectives, guidelines and policies to ensure the protection of the environment in NSW from climate change.

The Court found that under section 9(1)(a) of the POEA Act, the instruments must be developed by the EPA to ensure environment protection. That is, the EPA cannot delegate its duty. Accordingly, objectives, guidelines or policies developed by a person or body other than the EPA cannot be objectives, guidelines or policies for the purposes of section 9(1)(a) of the POEA Act.

Of the documents prepared by the EPA, the Court found that none of those documents were sufficiently directed at or developed for the purpose of protecting the environment from climate change.

What next?

Assuming the EPA does not appeal against this decision, the order from the Court will require the EPA to develop instruments that are more responsive in protecting the environment in NSW from climate change.

However, the duty under section 9(1) of the POEA Act is not prescriptive. That is, the EPA has a discretion as to the specific content of those instruments. In particular, the duty does not specifically require the EPA to develop instruments that are consistent with limiting global temperature rise to 1.5oC above pre-industrial levels.

The EPA is subject to the control and direction of the Minister. As such, it seems likely that any instrument prepared by the EPA will take into account any NSW government policy on climate change.

This decision joins a growing list of case law articulating specific duties of government authorities with respect to climate change.

For our recent summary of the Federal Court decision of Sharma v Minister for the Environment [2021] FCA 560 see here.