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Physical impacts in Australia are opening up litigation pathways

Historically, a significant portion of climate-related litigation in Australia has involved challenges to environmental approvals for projects that would, if approved, emit greenhouse gases.[10]

However the scope of climate-related litigation has been widening, due in part to increased incidences of apparently climate-related environmental disasters.

In NSW, the bushfires have prompted a legal claim against the Environment Protection Authority. On 20 April 2020, the Environmental Defenders Office, on behalf of the Bushfire Survivors For Climate Action, commenced legal action in the NSW Land and Environment Court.[11] The Bushfire Survivors are arguing that the EPA is expressly empowered, and required, by the Protection of the Environment Operations Act 1997 (NSW) (POEO Act) to develop environmental quality objectives, guidelines and policies which:

  • address greenhouse gas emissions, climate change and the environmental impacts of greenhouse gas emissions
  • regulate, and are adapted to reducing, sources of direct and indirect greenhouse gas emissions consistent with limiting global temperature rise to 1.5 degrees Celsius above pre-industrial levels;
  • are calculated to keep greenhouse gas levels at a level which is appropriate, having regard to the best available science; and
  • ensure, and are adapted to ensuring, environment protection.

According to the Bushfire Survivors, the EPA has failed to discharge this obligation in breach of the POEO Act. The Bushfire Survivors are seeking orders in the nature of mandamus, requiring the EPA to develop such objectives, guidelines and policies.

The case forms part of an expanding body of climate change actions brought against public authorities, regulators and decision makers in Australia and abroad. This includes the United States Supreme Court case of Massachusetts v EPA,[12] where it was held that the United States EPA should reconsider its refusal to regulate greenhouse gas emissions from motor vehicles.

The Bushfire Survivors case also serves to demonstrate that, as physical effects of climate change are felt in Australia, there are now potential plaintiffs in Australia who may be able to establish standing to bring climate-related claims.

Similarly, in Friends of Leadbeater's Possum Inc v VicForests (No 4),[13] the court accepted and relied on evidence that 'the frequency and intensity of wildfires are likely to increase under climate change scenarios, which predict increased rates of extreme climatic events'. According to the court, VicForests' past and future forestry operations in 66 coupes in the Central Highlands region of Victoria had, or were likely to have, a significant impact on the Greater Glider and/or the Leadbeater's Possum and therefore contravened section 18 of the Environment Protection and Biodiversity Conservation Act 1999 (Cth). The court accepted the applicant's submission that in assessing the threats in the impugned coupes, the role of wildfire, and the role of climate change in how it affects the occurrence, spread and severity of wildfire, needed to be taken into account.

These recent decisions demonstrate how the physical impacts of climate change close to home can open up litigation pathways which would otherwise be unavailable if the physical impacts of climate remained an issue over the horizon.

These cases show the physical impacts of climate change domestically deepen and broaden the scope for litigation, and justify a panoramic approach to assessing climate litigation risk.

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