Survivors of devastating bushfires have taken the NSW Environment Protection Authority to court, in a landmark climate case this week.

For the first time, an Australian court has allowed evidence on climate change to be heard in a case involving an alleged failure by a government agency to perform a statutory duty. 

On Monday, former chief scientist Professor Penny Sackett gave evidence in Bushfire Survivors for Climate Action case against the New South Wales EPA, telling the court that:

“We know we’re in a dangerous situation now.  I personally don’t want it to be any more dangerous.

“1.5 (degrees warming) is not a magical temperature … however, the thing that does distinguish it is that … this is still a target that we can meet. When I say we, I mean globally, the world.” 

On Tuesday, the court heard that EDO’s clients would like to tender further evidence from Professor Sackett in light of the IPCC’s dire 6th report on climate change, released on Monday evening.

Richard Beasley SC told the court, “We already know that the NSW environment is suffering under the impacts of climate change right now. We know that the impacts are likely to get much greater without extraordinary measures being taken.

“There could hardly be more significant pollutants now for the environment than greenhouse gas emissions. And so we say that the duty imposed on the EPA is one that must respond to the level of threat that the NSW environment faces.

“The threat is of significant damage to the environment, not just to NSW, but the globe, if there is temperature rise of 1.5 degrees or more. The science is just clear on that, and frankly, it’s been clear for a while.”

The three-day hearing before Chief Judge Preston in the NSW Land and Environment Court has now concluded.

The Landmark Case Begins

Bushfire Survivors for Climate Change Action at Parliament House in Canberra.

Environmental Defenders Office (EDO) is representing Bushfire Survivors for Climate Action (BSCA) in the case against the independent authority over its alleged lack of greenhouse gas emissions policy. 

The group’s members are people who lost their homes, communities, loved ones and peace of mind in bushfires; people who’ve fought fires as RFS or other volunteers, community leaders concerned about the impact and growing risks of bushfires and primary producers who’ve watched stock and wildlife impacted by bushfires and their after-effects.

The group’s president Jo Dodds has lived through three bushfires, including Black Saturday in 2009, the Tathra bushfires in 2018 and the megafires of 2019/20.

BSCA filed the case in April 2020, following the Black Summer bushfires that ripped through large swathes of New South Wales. 

The group is seeking to encourage and, if necessary, compel the NSW EPA to develop policies to measure and regulate greenhouse gases in the state. 

BSCA argues 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. 

Win over climate evidence  

In November 2020, the Land and Environment Court ruled that BSCA would be allowed to prepare expert scientific evidence on climate change for the hearing.

It was the first time an Australian court has ruled on whether evidence on climate change can be put forward in a case involving an alleged failure by an authority to perform a statutory duty.  

The November ruling also permitted evidence to be prepared on whether the emissions trajectories for New South Wales, Australia, and the world, are in line with the Paris Agreement goals to limit global warming to 1.5 degrees Celsius, and to examine the link between climate change and bushfire risk. 

Bushfire Survivors for Climate Action President Jo Dodds.

Elaine Johnson is the Solicitor on Record for BSCA and Matt Floro is the Senior Solicitor with carriage of this matter.  EDO would like to thank Richard Beasley SC and David Hume of Counsel for their generous assistance.