In a recent decision by the NSW Land and Environment Court, the NSW Environment Protection Authority (EPA) has been compelled to develop objectives, guidelines and policies to ensure environmental protection from climate change after the Court found (perhaps unsurprisingly) that the EPA owed a duty to do so. Whilst the decision may be appealed, its ramifications will likely extend beyond the EPA to all companies requiring EPA approval for any projects that may impact (or be impacted by) climate change and represents a continuation of the trend of activist litigation in Australia.
The proceeding was brought by a climate action group, Bushfire Survivors for Climate Action (BSCA), who argued that the EPA had a duty under the Protection of the Environment Administration Act 1991 (NSW) (Act), to develop objectives, guidelines and policies to ensure environmental protection from climate change.
The Court found that the EPA’s duty continued to evolve over time to address evolving threats to the environment and it was acknowledged that climate change is currently one of the most significant threats to the environment. The Court held that the EPA had failed in its duty to implement the necessary policies, guidelines and objectives relating to climate change as none of the EPA’s policy documents dealt specifically (or in some cases even at all) with climate change.
The BSCA argued that the duty to develop the relevant policies, guidelines and objectives should be more specific, and that the EPA should be required to develop policies, guidelines and objectives regulating and reducing greenhouse gas emissions to limit global warming to 1.5 degrees Celsius above pre-industrial levels. But the Court was not prepared to find that such a duty was owed, on the basis that the EPA has a discretion as to the specific content of the written instruments it develops.
The implications of this case are three-fold.
The Court’s view of climate change
In case there was any doubt, Australian Courts are prepared to find that climate change is a “current and grave threat to the environment”. In this case, the Court also found that “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”. Proponents and consent authorities should expect a very high bar to be applied by the Court when it comes to the adequacy of environmental impact assessment and mitigation of climate change impacts for projects.
Evolving standards for companies requiring EPA approvals
The case commenced by the BSCA should serve as a clear indication to companies requiring EPA approval for projects that may impact (or be impacted) by climate change of the increasing scrutiny placed on emissions and climate change.
Companies may expect the EPA to assess project proposals with the Court’s interpretation of the Act in mind (and to mitigate the risk of the EPA finding itself the subject of further judicial scrutiny). In this way, going forward, it would be prudent for companies to ensure robust analysis of any climate change impacts as part of the design and environmental impact assessment for their projects so as to ensure a more streamlined passage through the EPA’s approval process.
An uptick in the level of climate activism and recourse to litigation
The case is just another example of society’s evolving environmental conscience where climate activist groups are increasingly taking matters into their own hands by commencing proceedings against government agencies and corporates alike.
Consistent with other Australian decisions to date, the BSCA sought to effect change by seeking an order which set out the EPA’s duty to protect the environment from significant threats and compelling it to take certain steps in that regard. This case comes hot off the heels of Sharma by her litigation representative Sister Marie Brigid Arthur v Minister for the Environment  FCA 560 (Sharma), handed down earlier this year, in which the Federal Court of Australia found that the Federal Minister for the Environment owed a duty to persons under 18 years of age to take reasonable care to avoid causing them harm from further carbon emissions when determining whether to approve projects with a significant emissions footprint.
Corporate Australia should be alive to the potential for such activism to spill beyond government and regulators and into the corporate sphere – climate activists should be expected to have an increased appetite for taking on big corporates.
For information on climate change activism and the implications for corporate Australia, please see our article: Climate litigation around the world and potential risks for corporate Australia