Order allowing expert testimony on climate change

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."

Bushfire Survivors for Climate Action Incorporated v. Environmental Protection Authority

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Bushfire Survivors for Climate Action Incorporated v. Environmental Protection Authority - decision

Filed

Australia

New South Wales

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An aim to achieve a quantifiable outcome within a given time-frame, set by an institution such as a national government.

Policy instruments are techniques or tools used by governing authorities to promote certain policies in order to achieve predetermined goals. Put simply, instruments are how a government tries to achieve its goals, with this taxonomy being focused on national policy instruments.

Risk is the potential for adverse consequences resulting from the dynamic interplay between (climate-related) hazards, exposure, and vulnerability of affected human or ecological systems.

Groups  of people who are adversely affected by climate change or the response to it

A set of principles, processes, and practices that build economic and political power to shift from an extractive economy to a regenerative economy.

Justice is the ethical and political framework that addresses fairness, including issues of responsibility, rights, and structural inequity.

Renewable energy means all forms of energy produced from renewable sources in a sustainable manner.

Fossil fuel is a generic term for non-renewable energy sources such as coal, fossil gas, and oil (including crude oil, and petroleum products), that can be used for electricity and heat generation. Fossil fuels are hydrocarbons formed from pressurised and heated organic material buried over millions of years.

Molecules in the atmosphere that play a key role in the greenhouse effect by trapping heat radiating from Earth’s surface.

Area of the economy in which actors engage in identical or related activities.

In human systems, the process of adjustment to actual or expected climate change and its effects, in order to moderate harm, increase resilience or exploit beneficial opportunities. In natural systems, the process of adjustment to actual climate change and its effects; human intervention may facilitate adjustment to expected climate change and its effects.

The management and allocation of funds, assets and investments to meet various objectives

A financial institution that manages a country's currency and can promote climate-related initiatives through green monetary policy and other means.

A target to reduce the prevalence of a greenhouse gas over a specific time frame

A commitment to balance GHG emissions with removal by a certain point in time, effectively reducing the net emissions to zero

Either money or something of monetary value is transferred between two or more organisations, people or countries.

Conditions that enhance the feasibility of adaptation options. Enabling conditions include finance, technological innovation, strengthening policy instruments, institutional capacity, multi-level governance and changes in human behaviour and lifestyles.

Hot temperature extremes are daily maximum temperatures  that were exceeded on average once in a decade or once in 50 years, and includes heatwaves.

The release of heat-trapping gases, primarily from human activities such as burning fossil fuels, agriculture and industry.

A long-lived, colourless gas, chiefly emitted from fossil fuel combustion, deforestation and cement production.

Risks to the ecosystem health of the marine environment, including ocean warming, ocean acidification, and ocean deoxygenation, harming biodiversity, species health, ecosystem services, and coastal community livelihoods.

Extreme weather refers to events where a weather variable exceeds (or falls below) a threshold. Meaning it is significantly different from the average or usual weather pattern.

A drought is an extended period of unusually dry weather marked by a significant and sustained lack of precipitation, falling below a specific threshold over a large area for more than a month

Terrestrial means "of the earth" and relates to the risks to ecological system that includes all living organisms and their interactions within land-based environments, such as forests, grasslands, and deserts.

Air pollution involves harmful contaminants in the air, affecting both indoor and outdoor environments. It can lead to health issues like respiratory diseases and heart problems, and climate impacts such as global warming. Pollutants can damage plants, trees, habitats, and water bodies like rivers and lakes.

Fossil gas, commonly known as natural gas, is a fossil fuel consisting chiefly of methane with smaller amounts of other hydrocarbons and trace gases, found in underground deposits.

Coal is a combustible sedimentary rock formed from carbonised plant matter, rich in carbon and hydrocarbons, and occurring in several main types including hard coal and brown coal.

People with different national or cultural traditions from the dominant population

Social and cultural groups that share collective ancestral ties to the lands and natural resources where they live, occupy or from which they have been displaced

Any compulsory, unrequited payment to the government levied on corporations or individuals. This can be for environmental reasons, such as introducing a Carbon tax to set a price that emitters must pay for the greenhouse gases they emit.

Activities that involve planning, designing and building infrastructure, residential, and commercial structures.

This sector involves the wholesale and retail selling of goods.

This sector provides communication services, software development, and IT solutions.

Activities that involve the cultivation of crops and raising of livestock for food, fibre, and other products essential for human life and industry.

Climate change can have a range of impacts on technological system. Extreme weather events can cause infrastructure failures like power outages or damage to roads and bridges, as well as the impacts from waste following natural disasters. Human activities also cause technological impacts, such as the risks posed by oil spillage and leaks.

Climate change impacts our society by disrupting the natural, economic and social systems we depend on. Physical hazards and underlying vulnerabilities can lead to increased resource competition for food and water, which can heighten the risk of conflict.

Slow onset events evolve gradually from incremental changes over many years or from increased frequency or intensity of recurring events. As defined in the Cancun Adaptation Framework (2010), slow onset events include risks and impacts from rising temperatures, desertification, biodiversity loss, land and forest degradation, glacial retreat, ocean acidification, sea level rise, and salinization.

Heavy precipitation refers to any form of weather where substances fall from the sky, including rain, snow, sleet, or hail.

Bushfire Survivors for Climate Action Incorporated v. Environmental Protection Authority - decision

Target

Policy instrument

Risk

Impacted group

Fossil fuel

Greenhouse gas

Economic sector

Adaptation/resilience

Finance