A recent decision of the NSW Land and Environment Court (Court) will likely have wide-ranging implications for government decision-makers, including local councils. The case is a clear statement that, where legislation confers a public duty to protect the environment, governments or agencies responsible for that legislation must consider and combat the effects of climate change on the environment through the proper development and implementation of targeted environmental quality objectives, guidelines and policies.

Summary of the recent Bushfire Survivors decision

Bushfire Survivors for Climate Action Incorporated (BSCA) is a climate action group who sought an order from the Court, compelling the Environment Protection Authority (EPA) to fulfil their statutory duty to mitigate the impact of climate change on the environment. This duty, BSCA alleged, was imposed by section 9(1)(a) of the Protection of the Environment Administration Act 1991 (NSW) (POEA Act), which requires the EPA to ‘develop environmental objectives, guidelines and policies to protect the environment'. Further, BSCA sought an order which would require the EPA's policies to be ‘consistent with limiting global temperature rise to 1.5 degrees Celsius above pre-industrial levels'.

In support of its claim, BSCA relied on the ‘Sixth Assessment Report of the United Nations' Intergovernmental Panel on Climate Change (IPCC), released only four days earlier. The IPCC Report analysed over 14,000 peer-reviewed studies, ultimately making an unequivocal finding that human activity has warmed the atmosphere, ocean and land, causing widespread and rapid climate change. BSCA argued that the EPA's failure to develop specific policies to assess, mitigate and protect the environment from these climatic changes was in breach of its statutory requirements.

In response, the EPA rejected any suggestion that its duty under the POEA Act required its policies to address climate change. The statutory duty, it said, required the EPA to develop only general environmental protections. Even if it were required to address climate change, the EPA contended that it had already fulfilled that requirement by producing policies which incidentally regulate greenhouse gas emissions, such as methane from landfill, and its regulatory strategy had already identified the risks of climate change and foreshadowed the role of the EPA in developing solutions. At any rate, the EPA claimed that the Court was not empowered to prescribe the particular content of the EPA's policies, as that was a discretion reserved for the EPA alone.

Ultimately, the Court largely rejected the EPA's arguments. Whilst the Court did acknowledge that the EPA need not deal in such specificities as “limiting global temperature rise to 1.5 degrees”, it nevertheless found the EPA was under a general duty to protect New South Wales' environment from the effects of climate change and that this duty required it to develop instruments that dealt with the subject matter. However, the Court also accepted that the EPA has a general discretion as to the specific contents of these instruments. Chief Justice Preston concluded:

“An order …. should therefore be made to compel the EPA to perform its duty. The terms of the order should reflect the content of the duty that I have found, so that the EPA should be ordered to develop environmental quality objectives, guidelines and policies to ensure environment protection from climate change.”

The NSW Energy Minister Matt Kean has advised that the EPA will not be appealing the Court's decision, indicating instead that it would be focusing on introducing environmental quality guidelines, objectives and policies to give effect to the Court's ruling.

How does this decision impact local councils and other government agencies?

It is a foreseeable outcome that similar legal challenges to that commenced by BSCA may be brought against local councils and other government agencies that have a duty to ensure environmental protection, both in NSW and potentially in other jurisdictions.

For example, section 8A of the Local Government Act 1993 (NSW) (LG Act) requires councils to consider the ‘long-term and cumulative effects of actions on future generations' and consider the ‘principles of ecologically sustainable development'. In light of the Court's decision in Bushfire Survivors, some constituents (or groups of constituents) may seek to challenge the decisions of local councils by alleging that they do not accord with the LG Act or with the latest available climate science. A primary argument may likely be – similar to the BSCA's argument in Bushfire Survivors – that non-complying councils are breaching a public duty to develop and implement climate-related environmental policies or a council's sea level rise policy fails to adequately take account of the climate science.

As the IPCC increasingly confirms its long-term climate outlook, councils and government agencies will need to regularly review and update there relevant environmental guidelines and policies to ensure that their actions account for, and seek to mitigate, the effects of climate change. This is particularly true if legislation expressly confers, or could be construed as conferring, an obligation on the authorities to pre-empt climatic changes. Given the rise of climate litigation in Australia and around the world, it may not be long before it is argued that the LG Act confers such an obligation on councils.

The content of this article is intended to provide a general guide to the subject matter. Specialist advice should be sought about your specific circumstances.