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September 28, 2021

Bushfire survivors launch legal action against EPA

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With Australia dealing with one disaster after another of biblical proportions, one group of people believe that the power to change the course of the future lies in the hands of a government department.

Bushfire survivors launched a legal challenge this morning seeking to compel the NSW Environment Protection Authority (EPA) to act on climate change to protect communities from catastrophic fires.

The case has been launched by the Environmental Defenders Office (EDO) on behalf of Bushfire Survivors for Climate Action, a group of everyday Australians who have lost their homes to bushfires or been directly affected by worsening bushfire danger.

David Morris, CEO of the EDO said the case sought to compel the EPA, which does not currently have a climate change policy, to use its powers to keep communities safe from increasingly severe climate impacts.

Loss and trauma

‘Our clients have experienced the trauma of losing their communities, livelihoods and homes to bushfires.

‘Climate change is driving more frequent, severe bushfires in Australia, putting communities in danger,’ he said.

‘Our client will argue that the EPA has a duty to use its existing powers to ensure local protection for the NSW community by regulating greenhouse gas emissions to levels consistent with a safe climate and global warming of 1.5°C or below.’

Jo Dodds, chair of Bushfire Survivors for Climate Action and a survivor of the 2018 Tathra fires, said that NSW communities faced devastating fire danger over summer, and urgently need state authorities to develop meaningful climate policies.

‘As bushfire survivors we’ve experienced the devastating loss and trauma of catastrophic fires. We want to ensure that other communities don’t go through this, and we don’t want to go through it ourselves again – and that means urgently tackling climate change.

Coal, oil, and gas, fuelling more severe and frequent bushfires

‘We know climate change, driven by the burning of coal, oil, and gas, is fuelling more severe and frequent bushfires – and yet the NSW EPA, the lead agency charged with environmental protection, doesn’t even have a climate change policy.’

The NSW EPA is an independent agency empowered by its governing legislation, the Protection of the Environment Operations Act 1997 (POEO Act), to take strong action on climate by controlling the emission of greenhouse gases from all activities in NSW.

The EDO’s case, brought on behalf of Bushfire Survivors for Climate Action will argue it is also required to do this by developing policies for the control of greenhouse gases, consistent with the science of climate change, under its own legislation, the Protection of the Environment Administration Act 1991 (PEOA Act).

The case alleges that the EPA has a statutory duty under the POEA Act to prepare objectives, guidelines and policies to ensure environmental protection, and that it has breached that duty by failing to make policies that ensure a safe climate.

The known and catastrophic impacts of climate change

Specifically, Bushfire Survivors for Climate Action argue that given the known and catastrophic impacts of climate change, including increased frequency and severity of bushfires, any authority in the position of the EPA that was seeking to ensure environmental protection would have developed policies that,

•address greenhouse gas emissions and climate change;

•address the environmental impacts of greenhouse gas emissions;

•regulate sources of direct and indirect greenhouse gas emissions, consistent with limiting global temperature rise to 1.5 degrees above pre-industrial levels;

•are calculated to keep greenhouse gases at a level which is appropriate; and

•ensure environmental protection.

Bushfire Survivors for Climate Action say that failure to develop such policies constitutes a breach of the statutory duty owed by the EPA, and is now seeking orders from the Land and Environment Court by way of mandamus.  ‘Mandamus’ is a particular type of order that may be made by a Court against a public authority to direct it to perform a statutory duty.

‘We have the right to feel safe in our homes,’ said Ms Dodds. ‘We need the EPA to step up and protect communities from worsening bushfires. Our Federal leaders have failed to act to keep us safe – it’s time for state authorities to lead the way.’

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