Bushfire survivors permitted to present scientific climate evidence in proceedings against the NSW EPA
Bushfire Survivors for Climate Action Incorporated v Environment Protection Authority
A recent landmark ruling in interlocutory proceedings before the New South Wales Land and Environment Court in Australia, allows bushfire survivors to present expert scientific evidence on the link between climate change and bushfire risk, in their case against the NSW Environmental Protection Authority (EPA). They allege the failure by a Government agency to perform a statutory duty.
In April 2020, a group of individuals who experienced first-hand the desolation caused by extreme bushfires, brought legal action against the EPA, effectively challenging the adequacy of the EPA’s policy responses to climate change. The Bushfire Survivors for Climate Action (BSCA) are using the law to ensure that the appropriate authority entrusted with protecting people and the environment, in effect does so. Essentially, the BSCA argues that the EPA is entitled but also required by the legislation to take action on climate, to ensure environmental protection by controlling greenhouse gases emissions.
The case is brought under the New South Wales Protection of the Environment Operations Act 1997, which requires the EPA to “develop environmental quality objectives, guidelines and policies to ensure environment protection”. The Summons in the substantive case, advances the proposition that although the New South Wales Climate Change Policy framework supports the Paris Climate Agreement and shares the long-term objective to achieve net zero emissions by 2050, the EPA has failed to develop appropriate guidelines or policies to regulate greenhouse gases, consistent with limiting global temperature rise to 1.5 degrees Celsius.
In particular, the court order permits evidence to be lead on a number of specific questions, which will explore the links between climate change and bushfire risk including whether the current EPA guidelines and policies, ‘are fit for purpose in protecting or mitigating against the threat posed by climate change to the quality of the environment and the people of New South Wales’. Moore J recognised the differing approaches taken concerning the appropriateness of permitting reliance on expert evidence and while the judge acknowledged that questions of admissibility of such evidence remain a matter for the trial judge, Moore J was satisfied at this stage to allow the BSCA to file and serve expert evidence upon which it would seek to rely.
The judge underlined, that to the extent that the expert scientific evidence had some potential to provide a more ‘focused canvas for the consideration of the issues involved’, the filing and serving of such evidence has considerable potential to provide assistance to the trial judge.
The effect of this ruling and the case in its entirety, has the potential to aid communities everywhere to surface from the current COVID-19 crisis with a more evolved and empowered approach to challenging both public and private actors for contributing to the devastating impacts of climate change.
With thanks to intern Lida Tsakyraki for co-authoring this blog.
 4 November 2020, Bushfire Survivors for Climate Action Inc v Environment Protection Authority  NSWLEC