Bushfire survivors are taking legal action to force the New South Wales Environmental Protection Authority to address climate change.

EDO is representing a group of people from around the state, who have experienced first-hand the devastation caused by major bushfires – infernos made more likely and more intense by climate change.

After the worst bushfire season on record in 2019/20, the group – Bushfire Survivors For Climate Action – is using the law to ensure the authority tasked with protecting people and the environment does so effectively.

It’s a case with the potential to help our communities emerge from the current COVID-19 crisis stronger, smarter, and more resilient to catastrophic climate change.

No Carbon Emissions Policy

The unregulated release of greenhouse gases is the greatest threat to the environment and people of NSW, but the current emissions reduction trajectory for the state is not in line with the Paris Climate Agreement goal of limiting global temperature rise to 1.5ºC.

At present, the NSW Environmental Protection Authority (EPA) has no policy to adequately address climate change and does not regulate the state’s emissions.

The Bushfire Survivors For Climate Action are launching this case to encourage – and if necessary compel – the EPA to develop policies and guidelines to regulate greenhouse gas emissions and ensure a safe climate.

The EPA is an agency with teeth, and it is in a unique position. There is no federal EPA, and no independent federal agency has the same powers.

The agency has the power to issue licenses to control pollution, as well as putting caps and prices on substances which are harmful to the environment.

EDO will argue on behalf of the Bushfire Survivors For Climate Action that the EPA is not only explicitly empowered by its legislation to take strong action on climate by controlling the emission of greenhouse gases, it is also required to do this under its own laws.

Bushfire Survivors

Jo Dodds with her horse Rafiq.

EDO’s clients in this case are Australians that have seen the devastating loss of lives, livelihoods and property that bushfires can inflict on communities, and want authorities to do more to protect them and future generations.

Bushfire Survivors For Climate Action spokesperson Jo Dodd’s life was changed when fires raged through the idyllic seaside town of Tathra on the NSW far south coast in March 2018.  

The Bega Valley Shire Councillor watched in horror as the fire closed in on her farm outside the village.

The blaze, which destroyed 65 homes, was sparked by powerlines and fanned by unseasonal hot, dry winds.

“My partner had time to set up sprinklers around our home then we stood on the riverbank two kilometres downstream and watched over four hours as the fire approached and grew into a towering, terrifying inferno. 

“We saw the forest burn and the plumes of black smoke rising from the homes of friends and neighbours as we waited for the fire to reach our home. We heard gas cylinders exploding in town, saw traumatised people being evacuated in over-crowded cars and even in boats being towed behind vehicles. 

“We were incredibly lucky that the wind stopped just as the fire reached our property and all we physically lost was some building timber. 

“But we also lost our sense of safety, our peace of mind, our beautiful forest drive into town, and our friends and neighbours whose homes burned to the ground now live elsewhere while they struggle with the myriad traumas, tasks, and griefs they must now face.”

– Jo Dodds, Bushfire Survivors For Climate Action

The burnt-out remains of buildings on a cliff in Tathra in 2018.  Image by PhilipThompsonPhotography.com under CC Licence.

The Case

Bushfire Survivors for Climate Action Incorporated v Environment Protection Authority

On behalf of our clients, EDO is bringing Class 4 Proceedings, or civil enforcement litigation against the EPA.

We are seeking orders from the NSW Land and Environment Court to compel the EPA to protect the environment by regulating the state’s greenhouse gas emissions.

This case is about ensuring our key agencies have the tools they need to manage the global crisis of catastrophic climate change, which fuels bushfire disasters and other extreme weather events here in Australia.

It seeks to empower the NSW EPA to perform its duty according to law, and protect the people and environment of NSW from global warming.

The EPA has been served with a summons to appear in the court, with the first directions heard on 8 May 2020. On 26 October 2020, the Court made orders permitting our client to adduce expert evidence from former Australian Chief Scientist Professor Penny Sackett. Professor Sackett’s evidence is due to be filed on 12 February 2021, and the next directions hearing will be held on 16 February 2021.

The EDO is grateful for the assistance of Richard Beasley SC and David Hume of counsel who are briefed to appear in this matter, and Geoffrey Kennett SC who appeared in our client’s successful application for leave to adduce expert evidence.

Related Documents

The Federal Court has found that Federal Resources Minister Keith Pitt’s decision to grant $21 million of public money to private company Imperial Oil & Gas to pursue fracking in the Beetaloo Basin was invalid.

Federal Court Justice Griffiths found it was “legally unreasonable” for the Minister to enter into contracts over the grants while they were the subject of court proceedings, an action which breached model litigation obligations.

However, the court found that in this particular case, Federal Resources Minister Keith Pitt did not need to consider the risks of climate change when deciding to grant the public money to private company Imperial Oil & Gas to pursue limited exploration in the Beetaloo Basin.

It was found that the greenhouse gas emissions from the seven wells for which the grant was awarded were not significant, due to being solely for exploration for fracking.

“This case was critically important and put fossil fuel subsidies in the spotlight,” said Elaine Johnson, Director of Legal Strategy at EDO.

“The findings reinforced that Federal Ministers have a legal obligation to make reasonable enquiries about the proper use of public money when making funding decisions of this nature,

“In this case, the court found those reasonable enquiries didn’t extend to climate risk given the project does not involve extensive gas extraction and production. 

“Importantly, the door has been left open for climate risks to be considered in other decisions around the use of public funds for fossil fuel projects.”

“Fracking in the Beetaloo Basin would see a significant increase in global emissions, so it is critically important that government is held accountable for any decisions to use public funds for new gas in the Beetaloo.

“This decision underscored the primacy of the rule of law, highlighting the need for the Federal Government to act appropriately and respectfully when litigation is on foot.”

Kirsty Howey, Co-director of Environment Centre NT said the decision “doesn’t close the door on the scrutiny of fossil fuel grants”.

“Fossil fuel subsidies are not a reasonable use of public money. Under Australia’s commitment to the global Glasgow Climate Pact, we need to phase out funding of new oil, gas and coal projects.

“The Northern Territory is already suffering significantly from the impacts of climate change, and this will only worsen unless we take drastic action. Our own Environment Minister recently said that the Northern Territory may become uninhabitable for humans due to climate change. The public has an expectation that taxpayer money will not be used to accelerate climate catastrophe by funding projects that will release vast amounts of emissions, without due consideration of these risks.”

“Unfortunately, we’re being left behind in the global renewables transition by our government, which insists on propping up polluting fossil fuel projects with taxpayers’ funds.”

Background

In July 2021, Minister Keith Pitt announced that the first grants from the $50 million Beetaloo Cooperative Drilling Program would go to Imperial Oil and Gas to support three new exploration wells “to help accelerate development of gas projects in the Northern Territory.” Imperial Oil and Gas is a wholly owned subsidiary of the publicly listed Empire Energy.  

On 29 July 2021, the Environment Centre NT (ECNT), represented by the Environmental Defenders Office (EDO), commenced judicial review proceedings in the Federal Court challenging the lawfulness of the Beetaloo Cooperative Drilling Program and the grants to Imperial. 

The Court heard in November that fracking the Beetaloo Basin could lead to a 13% increase in Australia’s annual greenhouse gas emissions on 2020 levels, and fail to generate any economic benefit.

EDO argued on behalf of ECNT that the Minister was required to make reasonable inquiries into a range of matters before giving Imperial a large amount of taxpayer money, including how exploitation of the Beetaloo sub-basin would impact climate change and Australia’s ability to meet its Paris Agreement obligations.

Grants under this program are subject to the Public Governance, Performance and Accountability Act 2013 (Cth) which requires that the Minister not approve the expenditure unless he is reasonably satisfied that it is an efficient, effective, economical, and ethical use of public money.

Across Australia, communities like this are on the front line, defending their homes and our future against the impacts of climate change. 

You can help them by donating to our Environmental Defence Fund.