Court Allows Aussie Bushfire Survivors To Present Expert Evidence From Climate Scientist In Climate Case Against New South Wales' Environment Agency

An Australian court earlier this month issued an order allowing a group called Bushfire Survivors for Climate Action to present expert evidence on climate science in a case against the New South Wales Environmental Protection Authority over the agency’s lack of climate policy. This is the first time an Australian court has decided on whether to permit climate change evidence to be heard in a lawsuit alleging failure by a government agency to perform its statutory duty, according to the nonprofit law firm Environmental Defenders Office (EDO), which is representing the bushfire survivors in this case.

“We are pleased that our clients are now able to present robust scientific evidence about climate change and its impact on people and the environment, and we welcome these orders by the court,” EDO’s Director of Legal Strategy Elaine Johnson said in a press release.

Bushfire Survivors for Climate Action sued the New South Wales’ environment agency in April 2020 claiming the agency has failed to issue regulations or policies to slash greenhouse gas emissions consistent with limiting global temperature rise to 1.5 degrees Celsius – the target set forth in the Paris Agreement that nearly all countries including Australia have endorsed. Failure to rapidly rein in emissions, the plaintiffs argue, contributes to the worsening climate crisis that scientists say is linked to increasingly extreme weather and disasters like the unprecedented 2019-2020 bushfires that ravaged Australia, burning over 17 million hectares (over 42 million acres) and destroying over 3,000 homes.

The legal action seeks to compel the Environmental Protection Authority to regulate greenhouse gas emissions under its statutory duty to protect the environment (New South Wales Protection of the Environment Operations Act 1997). According to Environmental Defenders Office, the state agency “has no policy to adequately address climate change and does not regulate the state’s emissions.” There is no federal EPA in Australia, but the state agency has the authority to control pollution and take other measures to mitigate climate change.

The New South Wales Environmental Protection Authority has claimed, in its defense in this case, that it is complying with its statutory duty by developing guidelines “from time to time” to address GHG emissions.

The plaintiffs - group of people who have experienced first-hand the devastation caused by major bushfires – will now be able to counter this argument by relying on expert scientific evidence to address whether emissions trajectories in New South Wales and Australia are on track to limit warming to 1.5 degrees Celsius and the link between climate change and bushfire risk. Former Australian Chief Scientist Professor Penny Sackett will present this expert testimony grounded in climate science.

“As a result of these orders, bushfire survivors will, for the first time, be able to put evidence before a Court on the link between climate change and bushfire risk,” EDO’s Elaine Johnson said. “Following the devastation of the Black Summer bushfires, and the recent findings of the Royal Commission into natural disasters, that is a significant step forward. The orders also permit expert evidence on whether or not the world, Australia and NSW are on target to reduce emissions in line with the Paris goals.”

“We hope this ruling to make it easier in future for similar cases to hear evidence about the causes and effects of climate change,” she added.

According to EDO, the case is slated for a procedural “further directions” hearing on November 20. The case is before the Land and Environment Court in New South Wales.