NSW Environment Protection Agency (EPA) releases its draft Climate Policy and Action Plan

Environmental Defenders Office, 30 September 2022:

First ever NSW plan for climate action released after landmark win by bushfire survivors

One year after the landmark win by Bushfire Survivors for Climate Action in the NSW Land and Environment Court, NSW’s environmental regulator has released a draft of their first climate policy and action plan.

The Court found last August that the NSW Environment Protection Agency (EPA) has a legal duty to take serious action on greenhouse gas emissions and climate change – the first time that an Australian court has ordered a government to take meaningful action on climate change.

EDO’s case on behalf of our client, Bushfire Survivors for Climate Action (BSCA), argued that the EPA has a duty to develop policies, objectives and guidelines to regulate greenhouse gas emissions and protect communities from the impacts of climate change. BSCA spokesperson Fiona Lee, who lost her home in the Black Summer fires almost three years ago, said that this draft plan is an important step in answering that call.

“After the worst bushfire season on record in 2019/20, BSCA decided to use the law to ensure the authority tasked with protecting people and the environment does so effectively,” Ms Lee said.

“Bushfire survivors like me have already endured the devastating effect of climate change on our lives, homes, jobs and security and we know that extreme weather events like these will only increase in intensity and frequency as global temperatures increase. We need drastic emissions reductions this decade to keep our communities safe from further climate dangers.

“We’re pleased that the EPA has released this draft climate change policy and public consultation period. We look forward to getting across the details and preparing our submission in response.

“We also look forward to continuing to work closely with NSW Minister for Environment and Heritage, James Griffin, and the new EPA chief executive, Tony Chappel, to ensure this process delivers real impact in reducing emissions.”

Elaine Johnson, EDO’s Legal Strategy Director said: “This is a significant day for the Bushfire Survivors for Climate Action after their historic win last year, when the court found the NSW EPA was required to act on climate.

“We see the release of this draft policy as an important first step – but the devil will be in the details.

“We have analysed the draft policy and action plan and we are working with our clients, partners and the community to ensure we end up with an effective climate plan which delivers real results, and fast. Ahead of our webinar, we will be publishing our analysis and submission guide on key issues to support and strengthen the policy and action plan.

“This is our last chance to get it right. Climate change has already begun. How much worse it gets depends on how quickly we can drive emissions towards zero.

“The Court has made it clear that it’s the EPA’s job to protect Australians from greenhouse gases and climate change – there is no more time to lose.”

Have your say

The draft plan will be open for public submissions until 3 November 2022, and is an opportunity to ensure the EPA implements robust measures, safeguarding Australians and the environment we live in.

Join our community briefing webinar on Thursday 6 October, 6pm-7:30pm to hear independent expert legal analysis of the EPA’s draft Climate Policy and Action Plan. This webinar will be useful for anyone intending to make a submission. Register here.

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NSW EPA Draft Climate Change Policy document is at

https://hdp-au-prod-app-nswepa-yoursay-files.s3.ap-southeast-2.amazonaws.com/5316/6253/3253/EPA_Climate_Change_Policy.pdf

NSW EPA Draft Climate Change Action Plan 2022-2025 document is at

https://hdp-au-prod-app-nswepa-yoursay-files.s3.ap-southeast-2.amazonaws.com/8816/6253/3292/Climate_Change_Action_Plan_2022-25.pdf

World-first Australian Federal Court case over Santos’ ‘clean energy’ & net zero claims

On the same day that a judgement was handed down in Bushfire Survivors for Climate Action Incorporated v Environment Protection Authority [2021] NSWLEC 92 (26 August 2021) ordering The Environment Protection Authority, in accordance with s 9(1)(a) of the Protection of the Environment Administration Act 1991 (NSW), is to develop environmental quality objectives, guidelines and policies to ensure environment protection from climate change, news came of another legal challenge in which the Environmental Defenders Office is the the legal representative of the applicant.

Santos Ltd Cooper Basin facility
IMAGE: Environmental Defenders Office

Environmental Defenders Office, 26 August 2021:

The Environmental Defenders Office, acting on behalf of the Australasian Centre for Corporate Responsibility (ACCR), has filed a Federal Court case against gas giant Santos over its claims natural gas is “clean fuel” and that it has a credible pathway to net zero emissions by 2040.

ACCR will argue the claims – contained in the company’s 2020 Annual Report – constitute misleading or deceptive conduct under the Corporations Act 2001 (Cth) and the Australian Consumer Law.

This is the first court case in the world to challenge the veracity of a company’s net zero emissions target, as well as the first in Australia raising the issue of climate greenwashing against the oil and gas industry.

It is also a landmark, world-first test case in relation to the viability of carbon capture and storage, and the environmental impacts of blue hydrogen, increasingly touted as a key element in gas companies’ pathways toward net zero emissions.

Santos’ claims – “Clean” gas & a “credible” net zero pathway

Santos Ltd is one of Australia’s largest gas companies, and the biggest domestic gas supplier in the country.

In Australia its major projects include oil and gas extraction off the coast of Western Australia, as well as in the vast Cooper and Eromanga Basins that span South Australia and Queensland.

Santos is also a major player in coal seam gas, developing vast areas of the Surat and Bowen Basins in Queensland and planning a major new CSG project around the northern NSW agricultural hub of Narrabri.

In 2019-20, Santos was responsible for approximately 7.74 million tonnes of CO2 equivalent emissions from its direct operations, with the end-use of the natural gas it supplied emitting an additional 28.6 million tonnes of CO2 equivalent.

Despite this, Santos describes itself as a “clean energy” provider in its 2020 Annual Report, stating that natural gas is a “clean fuel”.

It has also sought to assure investors and the public that it has a clear and credible pathway to achieve net zero emissions by 2040.

This pathway is heavily reliant on both carbon capture and storage (CCS)processes and the production of “blue hydrogen”.

However, ACCR alleges that Santos failed to disclose that it has firm plans to increase its greenhouse gas emissions by developing new or existing oil and gas project including the Barossa, Dorado and Narrabri LNG projects. ACCR also alleges that Santos failed to disclose that its net zero plans depend upon a range of undisclosed qualifications and assumptions about CCS.

In addition, although blue hydrogen is increasingly touted as a key element in gas companies’ pathways toward net zero emissions, scientists and even key gas industry figures have raised questions over its environmental impacts in comparison to other energy sources.

ACCR says that these issues call into question whether Santos had reasonable grounds to assert it has a “clear and credible” plan to reach net zero emissions by 2040.

On behalf of ACCR, we will argue that in making the above claims Santos potentially engaged in misleading or deceptive conduct under both the Corporations Act 2001 (Cth) and the Australian Consumer Law.

We are asking the court to grant an injunction requiring Santos to correct the record publicly on these statements, and prohibit Santos from engaging in similar misleading or deceptive conduct in the future.

The Impact of Greenwashing – Investors & Environment

This case is about holding gas companies like Santos to account for the claims they make about their product and future in a low-carbon world.

Our client, ACCR, is a shareholder advocacy organisation focused on how listed companies, industry associations, and investors are managing climate, labour, human rights and governance issues.

They are also investors in Santos, taking this action to ensure the company and others like it fulfil their legal responsibility to be transparent and open with shareholders like ACCR.

Companies have an obligation to be upfront and honest with investors – this is particularly important to investors who are trying to assess which companies will survive and thrive in a rapidly changing global energy economy.

Misleading information can have a dramatic effect on the market, on investors, and ultimately on the environment.

It can leave investors vulnerable to major losses. It can skew the market unfairly in favour of companies failing to adequately respond to the climate change, and unfairly away from companies that are acting responsibly.

In doing so, misleading information about natural gas and the transition towards a lower carbon economy can obstruct an effective and timely response to the climate crisis.

A genuine transition to a low-carbon energy economy is crucial if Australia is serious about meeting its commitments under the Paris Agreement and ensuring the world avoids the worst impacts of climate change.

It’s essential that energy companies play their part and are upfront and honest about their role in this crisis and the challenges they face in adapting to a low-carbon economy.

This landmark case will help to ensure energy companies like Santos are held to account for the statements they make to investors and the public in the face of the global challenge of climate change. 

IMAGE: Santos 2021 Sustainability Report

Santos Ltd is one of Australia’s largest gas companies and is reportedly the biggest domestic gas supplier in the country. This court case is challenging the veracity of a company’s net zero emissions target, the viability of carbon capture and storage, and the environmental impacts of blue hydrogen.

Santos is also a major player in coal seam gas, developing vast areas of the Surat and Bowen Basins in Queensland and planning a major new CSG project around the northern NSW agricultural hub of Narrabri.

The Motley Fool blog stated on 26 August 2021 that; The Santos Ltd (ASX: STO) share price slumped today after news broke that the company is facing a lawsuit. At market close, Santos shares are down 2.27% to $6.02. It is worth noting that this means the company’s share price is now at a new low for the 2021 calendar year.

End of trading on Friday 27 August 2021 its share price fell again to $5.57.

North East Forest Alliance (NEFA) is heading to the Federal Court to challenge the New South Wales North East Regional Forest Agreement

 

"The North East Forest Alliance was formed in 1989 as an alliance of groups and individuals from throughout north-east NSW, with the principal aims of protecting rainforest, oldgrowth, wilderness and threatened species. NEFA has pursued these goals through forest blockades, rallies, court cases, submissions, lobbying, and protracted negotiations" [https://www.nefa.org.au/about_nefa]

On 30 July 2021 the North East Forest Alliance (NEFA) lodged its latest case in the Federal Court against the Commonwealth and NSW Governments.

If you live anywhere on the NSW North Coast, want to preserve our unique, biodiverse forests for future generations and are considering making a donation, go to: 

 https://chuffed.org/project/nefa-is-taking-government-to-court.

 https://youtu.be/XM-N1bnzhvk

Environmental Defenders Office (EDO), Latest News, 4 August 2021:

NSW Forest Logging Agreement Faces Legal Challenge over Climate, Biodiversity

In a legal first, Environmental Defenders Office (EDO) is heading to the Federal Court to challenge a New South Wales Regional Forest Agreement (RFA).

The North East RFA covers logging in the coastal area between Sydney and the Queensland border. It exempts logging in native forests from federal biodiversity law.

Originally signed between the Commonwealth and New South Wales in 2000, it was renewed in 2018 for another 20 years with rolling extensions that could continue indefinitely.

In the summer of 2019-20, devastating bushfires ripped through native forests in the RFA region, including areas of the World Heritage-listed Gondwana Rainforests of Australia.

On behalf of client the North East Forest Alliance (NEFA), EDO will argue that when the North East RFA was renewed, the Commonwealth did not have regard to endangered species, the state of old growth forests or the impacts of climate change, as the EDO will argue it was required to do.

NEFA is asking the Federal Court to declare that the North East RFA does not validly exempt native forest logging from federal biodiversity assessment and approval requirements (EPBC Act).

NEFA is acting to protect native forests, which provide critical habitat for vulnerable and endangered species such as koalas and greater gliders and to ensure that the laws that regulate logging in these forests are up-to-date and fit for purpose. It is the first legal challenge to an RFA in New South Wales.

Senior Solicitor Emily Long has carriage of this case under the supervision of Andrew Kwan.

EDO is grateful for the assistance of Jeremy Kirk SC and James Johnson and Claire Roberts of counsel who are briefed to appear in this matter.

EDO Chief Executive Officer David Morris said:

“We are challenging the Federal Government over its failure to assess how another 20-plus years of logging, against a background of a changing climate, will impact our forest ecosystems, endangered species and old growth forests.

“The Commonwealth didn’t want to incur the costs of conducting a proper assessment, waving through a 20-year extension of native forest logging without proper scrutiny.

“Under the current system, if a population of koalas is being threatened by a new development, the project needs to be assessed at the Federal level. But if the same population of koalas is being threatened by a logging project, it’s been rubber stamped on the basis of 20-year-old environmental assessments.

“We have known for years that as the climate changes, fires will follow. And yet the North East RFA was renewed without an assessment of how climate change will impact the health and resilience of our native forest ecosystems. Less than 12 months later, fires began ravaging native forests across the region.

“This RFA is a powerful instrument that allows the forestry industry to bypass Federal biodiversity assessments. To be robust, these agreements must be founded on the latest scientific knowledge on climate and the state of our forest ecosystems.”

20-year Extension of Native Forest Logging

Myrtle State Forest Courtesy of NEFA

Regional Forest Agreements are signed between the Commonwealth and the states, allowing forestry operations to be exempt from assessment and approval under the federal Environment Protection and Biodiversity Conservation Act 1999 (Cth) (EPBC ACT).

There are ten RFAs in force around Australia. The North East RFA is one of three in New South Wales, the others are the Eden RFA and Southern RFA.

Image: NSW Environment Protection Authority

The North East RFA encompasses a huge area spanning from NSW’s Central Coast to Queensland’s Gold Coast. It encompasses critically endangered ecosystems such as Central Hunter Valley eucalypt forest, New England Peppermint Grassy Woodlands, as well as Lowland and Littoral rainforests.

The ecosystems under the agreement include vital habitat for vulnerable and endangered species such as the grey-headed flying fox, the greater glider, the spot-tailed quoll.

In order for an RFA to exempt native forest logging from the usual federal biodiversity assessment and approval requirements, when the Commonwealth enters into an RFA it is legally required to have regard to assessments of environmental values – including endangered species and old growth – and the principles of ecologically sustainable management. EDO will argue for NEFA that when the North East RFA was renewed in 2018, the Commonwealth was required to, but did not assess climate change, endangered species or old growth forests.

In the subsequent 2019-20 bushfire season, the Black Summer bushfires devastated these ecosystems and the species that call them home, changing native forests in these regions beyond recognition.

According to the Natural Resources Commission 2020 report, 2019-2020 Bushfires: Extent of impact on old growth forest2, 28% of the Upper North East section of the North East RFA was fire affected, with over 65% of the forest canopy in that area being either totally or partially burnt. 23% of the Lower North East section of the North East RFA was fire affected, with 52% of the forest canopy in that area being either totally or partially burnt. 

On behalf of NEFA, EDO will argue that the lack of crucial assessments before the 2018 renewal means the decision to extend the North East RFA was not made in accordance with the relevant legislation. As a consequence, the Federal Court should find the North East RFA does not lawfully exempt logging in the north east RFA region from federal biodiversity assessment and approval requirements.

Bushfire Survivors for Climate Action Inc. commences a civil enforcement proceeding in NSW Land and Environment Court to compel the Environmental Protection Agency to regulate greenhouse gas emissions

Bushfire Survivors for Climate Action Incorprated is a group of bushfire survivors, firefighters, local councillors who have joined together to demand the Government take immediate action on climate change.

The group says of itself: "We have come together because we have lost our homes and our communities to bushfires and we want action. We are sick of waiting and we won’t put up with half-measures anymore. The Government can no longer ignore the way their climate change denial is hurting our communities and putting lives at risk. They must take Australia beyond coal projects like Adani and move to 100% renewable energy for all."

On 20 April 2020 Bushfire Survivors for Climate Action Inc. brought a civil enforcement proceeding in the Land and Environment Court to compel the Environmental Protection Agency (EPA) to regulate greenhouse gas emissions.

The proceedings seek to force the EPA to establish a climate policy, based on its statutory role which includes a requirement to prepare policies to protect the environment. The group will be arguing that the EPA as lead environment regulator in NSW failed to establish such policies in relation to climate change.

The outcome of this case is of particular interest to communities in the NSW Northern Rivers region given the mega wildfires of the 2019-2020 bushfire season and the environmental devastation/property loss/social dsiruption in their wake.

On 27 April 2020 The Daily Examiner reported:

Any notion that climate change is an issue that can be dealt with effectively in some distant future has been shown to be untenable given events of the past few years. 

Extreme weather events, severe droughts and longer and more catastrophic bushfire seasons have shown more people there is a connection between these events and the growing carbon emissions in the Earth’s atmosphere. 

Australians concerned about climate change are becoming increasingly frustrated with the ostrich-like attitudes of many politicians and government agencies. 

One group that is taking legal action in an attempt to force a NSW government agency to do more on climate change is Bushfire Survivors for Climate Action, which is taking the Environmental ­Protection Agency to court ­because of its failure to better protect communities. 

Group president Jo Dodds said all members had experienced a bushfire first-hand. They believed climate change was a major contributing factor to the cause and growing intensity of bushfires in Australia. 

She said the issue wasn’t being taken seriously enough and “there’s a sense that the bushfires are over and we can get back to normal life after COVID-19 – but the fires are going to come harder and more frequently”. 

The Environmental Defenders Office is representing the group. EDO chief executive David Morris said the EPA had “a statutory mandate to protect the environment … but the EPA don’t have a current policy to regulate greenhouse gas emissions”. 

“Those two things can’t coexist,” he said. “We’re simply asking the court to tell the EPA go and create environmental quality objectives with respect to greenhouse gas emissions, regulate the pollution and use their existing powers to do so.” 

According to the EDO, the EPA is in a unique position. As an agency “with teeth”, it has the power to issue licences to control pollution, as well as put caps and prices on substances that are harmful to the environment. 

The case is listed in the NSW Land and Environment Court in Sydney on May 8. 

Leonie Blain, Clarence Valley Conservation Coalition

Climate Change: Wallarah 2 longwall coal mine legal challenge

The Australian Coal Alliance states it is; concerned citizens of the Central Coast are worried about the impact that longwall coal mining in the Central Coast Water Catchment Valleys and beneath residential homes will have upon our drinking water catchment, and upon our health, lifestyle and properties. We will continue to demand that the government introduces legislation into the Parliament to protect the Wyong Water Catchment District, the largest drinking water resource on the Central Coast, from mineral extraction, and to protect homes from being undermined by longwall coal mining.

This is its legal battle............

Environmental Defenders Office NSW, 14 November 2018:

EDO NSW, on behalf of the Australian Coal Alliance (ACA), argued in Court that the Planning Assessment Commission’s (PAC) decision to approve the Wallarah 2 longwall coal mine on the Central Coast was unlawful and invalid.

Barristers Craig Leggat SC and Josie Walker argued against the approval of the mine on the basis of climate change, ecologically sustainable development, impacts to water resources and flooding impacts.

The legal team: Craig Leggat SC, Josie Walker of Counsel, Brendan Dobbie, Acting Principal Solicitor and Isaac St Clair-Burns, Solicitor of EDO NSW.

 “Our client ACA argued that the PAC’s decision was invalid on 10 specific grounds”, said David Morris, CEO of EDO NSW. "We focused on the PAC’s assessment of the mine’s downstream greenhouse gas emissions and impacts to the Central Coast water supply and likely flood-affected properties.”

The Wallarah 2 project is predicted to have impacts on 88 private properties, which will be exposed, in varying degrees, to increased risks of flooding. The mine has proposed various options to mitigate those impacts or, where that is not practicable, to make arrangements for the voluntary purchase of flood affected properties. The ACA questioned the legal validity of those conditions.

In addition to the predicted impacts from flooding and to the Central Coast water supply, Wallarah 2 will make a substantial contribution to greenhouse gas emissions – estimated to be more than 264 million tonnes of CO2 over the 28-year life of the mine. NSW law required the PAC to consider an assessment of those emissions when approving the mine. However, the ACA argued in Court that the PAC specifically disavowed consideration of downstream greenhouse gas emissions and therefore the approval was contrary to the law and also to the principles of ecologically sustainable development, which includes the principle of intergenerational equity.

“This case is by its very nature climate change litigation, which we’re seeing more and more in Australia. We argued that the law in this case wasn’t followed with respect to climate change impacts and the principle of intergenerational equity”, David Morris said.

Of additional interest, this was a paperless trial, one of the first that EDO NSW has been involved with, and it proceeded very smoothly.

A judgment is expected sometime before the end of May 2019.

Further detail on this case can be found here: www.edonsw.org.au/wallarah2_aca

EDO NSW is an independent community legal centre specialising in public interest environmental law and members of Northern Rivers communites can contact the EDO at any time via the hotline on 1800 626 239 for free legal advice concerning local environmental matters.