In Bushfire Survivors for Climate Action Incorporated v Environment Protection Authority [2021] NSWLEC 92, Bushfire Survivors for Climate Action (BSCA) sought an order compelling the EPA to perform a statutory duty to develop environmental quality objectives, guidelines and policies to ensure the protection of the environment from climate change. The Court found that the EPA has such a duty, has failed to perform this duty, and ordered it to do so.

Findings of the Court

Section 9(1)(a) of the Protection of the Environment Administration Act 1991 (NSW) (POEA Act) requires the EPA to 'develop environmental quality objectives, guidelines and policies to ensure environment protection'.

The Court found that the EPA has a duty to develop these instruments, and could not rely upon policies developed by other government bodies.

The instruments must relate to the quality of the environment. ‘Environment’ is defined broadly in the POEA Act, and includes air and any layer of the atmosphere.

Further, the instruments must be developed for the purpose of ensuring environmental protection. ‘Environmental protection’ is a wide concept and includes anything which furthers the objectives of the EPA. These objectives include for the EPA to take action to:

• ‘protect, restore and enhance the quality of the environment in NSW in ways that are consistent with achieving and maintaining ecologically sustainable development’
• ‘reduce the risks to human health and prevent the degradation of the environment’, including by ‘promoting pollution prevention’ and ‘setting mandatory targets for environmental improvement’.

While the Court recognised that the EPA has a discretion as to ‘when, what and how’ the instruments are developed, the EPA had no discretion as to ‘whether or why’ the instruments are developed. The exercise of the EPA’s discretion is subject to the usual limitations on the exercise of statutory discretion, such as acting in good faith and unreasonableness.

The threat to the environment from climate change was of such magnitude, that the EPA had a duty to develop instruments to ensure environment protection from climate change. That is, the decision of ‘whether or why’ to develop instruments addressing climate change in particular, was outside of the EPA’s discretionary powers.

What is required by the EPA?

The Court issued a mandamus ordering the EPA to develop environmental quality objectives, guidelines and policies to ensure environment protection from climate change. However, the EPA has a discretion in the specific content of the instruments it develops under s 9(1)(a) and the way in which those documents will seek to ensure the protection of the environment from climate change. While the BSCA contended that the instruments must be consistent with limiting global temperature rise to 1.5 degrees Celsius above pre-industrial levels, the Court held that the duty does not extend to this level of specificity.

That said, the instruments must specifically address climate change. Previous documents prepared by the EPA were not sufficient to satisfy this requirement. In particular, the Court considered five documents in detail, which primarily concerned waste management and included measures relevant (although ‘ancillary’) to climate change, such as the management of methane emissions from landfill.

Further, the instruments must be developed by the EPA, as only the EPA has the requisite ‘expert administrative competence’ to prepare the instruments (that competence being vested in the EPA by the objectives and functions conferred upon it under the POEA Act). The Court found that the NSW Climate Change Policy Framework for NSW and Net Zero Plan Stage 1: 2020-2030 did not satisfy the requirements of s 9(1)(a) of the POEA Act, as those documents were prepared by the Office of Environment and Heritage, and the Department of Planning, Industry and Environment, and not by the EPA.

Broader implications of the decision

Subject to any appeal, this decision is part of the growing body of climate change litigation in Australia and has important implications not only for the EPA, but also for statutory bodies in other jurisdictions with similar environment protection duties.

Some questions arising out of the judgement which remain to be answered include:

• Where is the line drawn? The Court found that what is required to perform the duty will evolve over time in response to changes in threats to the environment. However, as a minimum, the duty will require the development of instruments to ensure the protection of the environment from threats of ‘greater magnitude’ and ‘greater impact’. Climate change is the ‘exemplar’ of ‘threats of great magnitude and impact’, in which the EPA was required to develop instruments. What other threats may be considered to be of similar magnitude and impact is not yet clear.
• Restrictions on delegation – In finding that the EPA could not delegate its duty under s 9(1)(a) of the POEA Act, the Court did not consider the EPA’s power of delegation in s 21 of the POEA Act. The implications of the judgment on the exercise of this delegation power is uncertain, although it may be that it is confined to the particular circumstances considered in this case.