Bushfire Survivors for Climate Action Incorporated v. Environmental Protection Authority

On April 20, 2020, Bushfire Survivors for Climate Action brought a civil enforcement proceeding to compel the New South Wales Environmental Protection Authority to regulate greenhouse gas emissions. The plaintiffs, represented by the New South Wales Environmental Defenders Office, are Australians who allege that they have been harmed by bush fires made likely or more intense by climate change. The case was brought under the New South Wales Protection of the Environment Operations Act ( 1997 ("PEOA"), which requires the Environmental Protection Authority to “develop environmental quality objectives, guidelines and policies to ensure environment protection." The summons alleges that, although the New South Wales Climate Change Policy framework endorses the Paris Agreement and contains an aspirational long-term objective to achieve net zero emissions by 2050, the New South Wales Environmental Protection Authority has failed to develop guidelines or a policy to regulate greenhouse gases consistent with limiting global temperature rise to 1.5 degrees Celsius. On June 4 the respondent filed its points of defense, asserting that it has complied with its duty by developing guidelines and policies from time to time to address greenhouse gas emissions. On November 4, 2020, the Court issued an order allowing testimony from the plaintiff's expert, Australian Chief Scientist Professor Penny Sackett, on climate change, including whether emissions trajectories in New South Wales and Australia are on track to limit warming to 1.5 degrees. According to the plaintiffs, this marks the first time an Australian court has ruled on whether climate evidence can be heard in a case alleging the government's failure to perform their statutory duty. On August 26, 2021, the Court ordered the New South Wales Environmental Protection Authority ("EPA") "to develop environmental quality objectives, guidelines and policies to ensure environment protection from climate change." The Court found that the POEA's duty to develop environmental protection instruments includes the duty to develop climate change protection instruments. The Court pointed to evidence presented by Professor Penny Sackett, and the IPCC reports which she relied on, to conclude 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." The EPA had failed to fulfill its duty to protect from this threat because none of the instruments it presented adequately provided for protection from climate change. The documents it presented were either not prepared by the EPA or were "directed towards ancillary or insignificant causes or consequences of climate change."