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In this first of our series of articles we unpack the key features of the Policy and Action Plan and provide our insights on the EPA’s initial actions to gather information and implement steps to require key regulated industries to develop and implement climate change mitigation and adaptation plans.
In the August 2021 decision in Bushfire Survivors for Climate Action Incorporated v Environment Protection Authority, Justice Preston found that the NSW Environment Protection Authority (EPA) has a duty to develop environmental quality objectives, guidelines and policies to ensure environment protection from climate change. Justice Preston found that the EPA had not at the time fulfilled its statutory duty and ordered the EPA to develop environmental quality objectives, guidelines and policies to ensure environment protection from climate change.
On 20 January 2023, in fulfilment of that duty, the EPA released its first Climate Change Policy (Policy) and the associated Climate Change Action Plan 2023-2026 (Action Plan). Principally, the objectives of the Policy are to:
The EPA’s regulatory approach to achieving the Policy objectives is centered around three key pillars ‘Inform and plan', ‘Mitigate’ and ‘Adapt'.
[Image from the EPA, Climate Change Action Plan 2023-2026]
The Action Plan provides a framework for the delivery of the Policy’s objectives over the three year period from 2023-2026, and beyond, and demonstrates the EPA’s intention to take stronger regulatory action on climate change primarily focused on the reduction of GHG emissions by environment protection licence (EPL) holders.
Within these 3 pillars the EPA has identified 25 actions to deliver on the Policy, supported by key performance indicators and deliverables. The Action Plan contemplates the staged implementation of actions in a “deliberate, systematic, well-informed and properly paced” manner recognising that EPL holders will require time to consider and respond to new information, and to plan and to adjust to new obligations.
In this series of three articles, we will look at the specific actions in each of the three pillars. In this first article, we will focus on the actions described in the first pillar, actions to ‘Inform and Plan’.
The EPA recognises in the first pillar the importance of reliable, high-quality information and planning in delivering on the Policy objectives. Broadly, the nine actions of Pillar 1 relate to determining GHG emission baselines, assessing risks, promoting good practices, measuring success, reporting in a transparent way, providing advice, and improving in response to new evidence and stakeholder feedback.
Seven of the Pillar 1 actions are actions that the EPA and NSW Government are already undertaking in some manner and include:
Two of the Pillar 1 actions are new actions to be implemented over the next three years. These two actions will have the most immediate impact on the EPA and EPL holders and are:
EPL holders should plan early and provision to properly implement the above actions.
We can assist EPL holders, and other affected parties such as landowners and developers, in understanding the legal risks and opportunities arising from the implementation of the Policy and Action Plan.
A copy of the Climate Change Policy and Climate Change Action Plan are available here.
Clyde & Co remains committed to mapping and understanding climate change risk alongside a growing network of cross-sector experts and collaborators, to help our clients navigate the rapidly evolving risk landscape they face. If you would like to discuss the issues raised and how this may impact your business, please contact one of our authors. For more thought leadership articles on the climate change related topics, visit our Resilience Hub and our Climate Change Risk webpage.
  NSWLEC 92.
 Chief Judge of the NSW Land and Environment Court.
 Arising under s 9(1)(a) of the Protection of the Environment Administration Act 1991 (NSW).