NSW bushfire survivors win legal battle ordering EPA to take action on climate crisis

In a ‘landmark’ Australian first, the court found the state environmental regulator had not fulfilled its duty to protect the state’s environment

The New South Wales environmental regulator has been ordered to take action against climate change by the state’s land and environment court in a judgment environmental advocates have described as a landmark victory.

It is the first time a court has found an Australian government agency is failing in its duty to address global heating and must take action to address greenhouse gas emissions, after a legal challenge by bushfire survivors.

In its judgment handed down on Thursday, the court found the Environment Protection Authority had a duty to protect the state’s environment from climate change and it had not fulfilled this duty.

The court has ordered the regulator to develop objectives, policies and guidelines to protect the environment from climate change.

The legal challenge was brought by Bushfire Survivors for Climate Action (BSCA) whose members include survivors of the 2019-20 bushfire disaster and earlier fire seasons.

They had sought to compel the EPA to develop policies that measure and regulate greenhouse gas emissions in NSW.

The group’s president, Jo Dodds, said members of BSCA had been working for years to rebuild their homes, lives and communities.

“This ruling means they can do so with confidence that the EPA must now also work to reduce greenhouse gas emissions in the state,” she said.

“This is a significant win for everyone who has been affected by bushfires.”

In a statement, the EPA told Guardian Australia it is “reviewing the judgement and implications for the EPA”.

“The EPA is an active government partner on climate change policy, regulation and innovation. It is a part of the whole-of-government approach to climate change embodied by the NSW Climate Change Policy Framework and Net Zero Plan,” the statement said.

“The EPA is involved in work that assists with and also directly contributes to measures to mitigate and adapt to climate change. The EPA supports industry to make better choices in response to the impacts of climate change.

The ruling does not outline what specific actions the EPA must take.

Elaine Johnson is the director of legal strategy at the Environmental Defenders Office, which represented the bushfire survivors in court.

“The EPA has discretion as to what they do but they have to do something and it has to be meaningful,” she said.

“What it will mean is that our lead environmental regulator has been ordered to take action to protect NSW people and the environment from climate change.”

Johnson said the EPA, as the regulator of pollution in the state, had the power to take immediate action such as introducing a price on carbon or using its licensing system to require industry to reduce greenhouse gases to safe levels.

“Greenhouse gases are the most dangerous form of pollution,” she said.

“An obvious response to this order would be to control greenhouse gases in the same way they do other pollutants in the environment,” she said.

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She said the court’s decision was a major step forward for citizens trying to hold governments to account on climate change and showed action was required at all levels of government.

Nature Conservation Council chief executive, Chris Gambian said of the decision: “Most people will be astonished to learn the EPA has until now not regulated greenhouse gases, which are arguably our most dangerous environmental pollutants.

“But that will now have to change after the court found the EPA had a duty to address climate change, which is the most significant challenge our society has ever faced.

“This is a great day for environmental justice.”

Comment has been sought from the NSW environment minister, Matt Kean.

Contributor

Lisa Cox

The GuardianTramp

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