The case: In August 2021, a group of survivors of the horrific Black Summer bushfires took a landmark climate case to the NSW Land & Environment Court and won. For the first time, an Australian court allowed evidence on climate change to be heard in a case involving an alleged failure by a government agency – the NSW Environment Protection Authority (EPA) – to perform a statutory duty. And for the first time, an Australian Court ordered a government to take meaningful action on climate change.

The result: A year later, in response to the historic ruling, the NSW EPA has released a draft Climate Change Policy and draft Climate Change Action Plan. This is a huge and important step in recognising and clarifying the duty of the EPA to address climate change and regulate greenhouse gas pollution, in this critical decade for action on climate change.

What the Bushfire Survivors for Climate Action wanted to see was real action on climate change. Unlike other forms of pollution in Australia, greenhouse gases are not directly regulated by our Environment Protection Agencies as pollutants. Critically, the EPA’s climate policy, developed in response to the Court orders, confirms that the EPA will start regulating greenhouse gas emissions as pollutants. This is huge cultural shift, as NSW becomes the first jurisdiction to regulate greenhouse gases as a form of pollution. The EPA should be congratulated on taking this first step, and we want to see this agency drive the urgent and rapid decrease in emissions that we know is needed – starting today.

The opportunity: The EPA is calling for feedback on the draft policy and draft action plan by 3 November 2022.

For a copy of the Draft policy and Action Plan, and information about the consultation, go to:

The detail: EDO has prepared a Briefing Note that identifies key issues to support and strengthen the EPA’s proposals. Our Briefing Note provides our initial analysis on:

  • NSW EPA Draft Climate Change Policy
  • Draft Climate Change Action Plan 2022-25
    • Pillar 1: Inform and Plan
    • Pillar 2: Mitigate
    • Pillar 3: Adapt
  • Key issues to support and strengthen

There is a lot to support in the proposed Policy and Action Plan. Critical elements for reducing emissions include:

  • developing a series of greenhouse gas emissions reduction targets and related pathways for regulated industry sectors;
  • progressively placing greenhouse gas emissions limits and other requirements on licences for key industry sectors;
  • embedding climate change considerations into EPA and DPE decision-making; and
  • identifying the stronger regulatory responses that are on the table for future application.

There are a range of other elements of the Draft Policy and action plan that should be supported. These include: new requirements for Climate Change Mitigation & Adaptation Plans; annual reporting of progress against the Action Plan; reference to consistency with environmental justice principles; engagement, consultation, knowledge recognition and benefit-sharing with First Nations Peoples; consultation with young people, consistent with the principle of intergenerational equity; the intent to deliver environmental, cultural and health co-benefits from climate action; assessment and disclosing of climate related risks; and the proposed inter-agency engagement to further a whole-of-government approach.

There is also an opportunity now to make recommendations to strengthen the Draft Policy and Action Plan. Areas for strengthening include ensuring: targets are enforceable through licences and conditions; timeframes for escalating regulatory actions are clear; there is comprehensive coverage of the largest emitters across all sectors – including both existing and new licensees; a whole of government approach is taken with all relevant agencies at the table; establishing ecologically sustainable renewable energy pathways; and limiting the use of carbon offsets.

We are in the critical decade for climate action. It is understood that achieving 2030 goals is crucial, and delaying action will make costs of addressing climate change impacts astronomical. The 3 year plan in the Draft Action Plan takes us to 2025 – half way through the critical decade. While many of the actions undertaken during this time will contribute to knowledge and understanding of the climate impacts and actions, it is critical that the Policy and Action Plan set a clear framework for delivering measurable greenhouse gas emissions reduction. We recommend the Draft Policy and Draft Action Plan set clearer timeframes and triggers for implementing enforceable requirements more specific key performance indicators. The Climate Change Policy and Climate Change  Action Plan must address the biggest emitters if objectives and targets are to be met and the statutory duty to address climate change to be effectively discharged.

For more detail read our Briefing Note.

For further information – see the recording of our webinar, our submission guide and our submission.

See also: Empowering the NSW EPA to Prevent Climate Pollution – Environmental Defenders Office (