Climate-ready planning laws for NSW: Rocky Hill and beyond
Following hot on the heels of the landmark decision in the Rocky Hill court case, the latest IPCC Special Report on the impacts of global warming, warnings from the Reserve Bank of Australia and a summer of extreme weather, EDO NSW today publishes its recommendations for climate-ready planning laws for NSW.
By Cerin Loane, Senior Policy and Law Reform Solicitor, and Rachel Walmsley, Director Policy and Law Reform EDO NSW
21 March 2019
After a summer of extreme weather and another unequivocal IPCC report evidencing current and predicted impacts of anthropogenic climate change, in February this year the Land and Environment Court of NSW handed down a landmark judgment. The decision in the Rocky Hill case confirmed that climate change must be in the minds of decision makers when assessing the impacts of greenhouse gas emissions on the climate, environment and people, and that decision makers are obligated to make decisions having regard to the need to limit global warming to 1.5°C above pre-industrial levels. The ruling emphasises that “the global problem of climate change needs to be addressed by multiple local actions to mitigate emissions by sources and remove GHGs by sinks”.
Despite the unequivocal scientific evidence of anthropogenic climate change and the urgency of taking measures to limit warming to 1.5°C, the legal and governance frameworks needed for effective action are mostly absent. NSW is no exception to this, with many of our important environment and planning laws lacking the specificity needed to reduce emissions, transition to clean and renewable energy systems and plan for the anticipated impacts of already locked-in global warming.
Our 2016 report, Planning for climate change: How the NSW planning system can better tackle greenhouse gas emissions, made 14 recommendations on how planning laws could reduce emissions. Our new report, Climate-ready planning laws for NSW: Rocky Hill and beyond, updates our findings. Inspired by climate change law reform in other jurisdictions, it addresses both mitigation and adaptation imperatives and proposes clear ways to codify the Rocky Hill judgment to provide the necessary certainty for industry and communities.
The Climate-ready report identifies two major legal barriers to NSW taking effective action to combat climate change. The first is the lack of an effective, whole-of-government legal and governance framework for responding to climate change. The second is the failure of the NSW planning system (encompassing strategic land-use planning, environmental impact assessment and development assessment) to adequately incorporate climate change considerations into planning and development decisions.
Overcoming these two barriers with clear requirements for decision makers will provide certainty to investors, industry, development proponents and the community, who are already living with the impacts of climate change.
This report recommends that NSW needs overarching climate legislation, a new Climate Change Act, that sets specific targets for reducing greenhouse gas emissions and increasing renewable energy; imposes duties on decision makers to reduce greenhouse gas emissions and make decisions consistent with limiting the increase in global warming to no more than 1.5°C, and puts in place processes (such as climate adaption plans) for building resilience to the impacts of climate change.
The report makes specific recommendations for planning law reform, including to better integrate climate change considerations into planning decisions; strengthen strategic land-use planning; require Climate Impact Statements for major projects; and provide guidance for decision makers on how to assess whether a project will have unacceptable climate impacts.
Failing to limit global warming will have catastrophic impacts across the globe. Scientists have advised that the next decade is crucial – we must rapidly curb emissions and limit warming or face the devastation of mass extinctions, the collapse of vulnerable ecosystems such as coral reefs and alpine areas, greater levels of sea-level rise and coastal inundation, and more extreme weather events such as heatwaves, flooding and droughts. These changes will impact on our health, agriculture, water security, infrastructure, natural capital and economy.
The recommendations in this report demonstrate how we can make NSW planning laws climate ready and ensure that today’s communities, planners, developers and decision makers have the guidance needed and duty to: reduce emissions and limit warming to 1.5 °C; manage climate risks and protect assets, lives and livelihoods; and plan for a rapid and just transition away from fossil fuel production and use consistent with the latest IPCC advice. The future of our cities and towns depends upon it, as do the unique landscapes and ecosystems that support life as we know it.
Climate change is not an environmental issue for future generations. It is a multi-faceted policy challenge with social, economic and environmental dimensions that are relevant today. It affects public and private assets and decision-making. And it requires good decisions now, to avoid severe impacts and mounting costs later. Clear, climate-ready laws are needed now.