Earlier this month the NSW EPA publicly announced it was well progressed with the development of a regulatory framework to regulate carbon emissions and combat climate change in NSW. This is a significant development following a decision of the Land and Environment Court forcing the NSW EPA to develop measures to develop specific measures to combat climate change. Climate change has been an area that the EPA had argued it did not bear any specific statutory duty to regulate. That has changed and industrial and waste facilities with carbon intensive operations or emissions will need to watch closely for the release of the regulatory package to ensure that it is reasonable and will promote ecologically sustainable development.
Why is the NSW intervening in carbon emissions?
Historically the NSW EPA had taken the view that did not need to take specific steps to address climate change. This was despite it being the lead environmental regulatory agency in NSW. This position was challenged by a group of bushfire survivors in Bushfire Survivors for Climate Action Incorporated v EPA [2012] NSWLEC 92.
The Chief Judge of the Land and Environment Court found that the EPA had failed to perform a statutory duty by developing specific instruments to ensure the protection of the environment from climate change.
What will the scheme look like?
While announcing that its work is progressing, the EPA has yet to announce details of the framework. We would expect that a key mechanism for regulation would be through the Environment Protection Licences held by industry.
It is likely that the EPA framework will deal with both climate change mitigation measures (aimed at reducing greenhouse gas emissions from industrial facilities) and climate change management measures (additional resilience requirements in planning controls).
Is this a trend expected to repeat across Australia?
We would expect other environmental regulatory agencies in other states, such as the Victorian EPA, will be watching closely and may face similar litigation from climate change activists in the future.
What should I do?
Those operating industrial facilities will need to ensure that they remain engaged with this issue and participate in consultation. Operators will also need to carefully consider integration requirements with Commonwealth laws in relation to climate change. We can assist to advise your business on the framework once released including on how to manage reporting and data requirements.
For further information, please contact us.
