The Federal Court of Australia has struck down an attempt to impose a legal duty on the Commonwealth to set greenhouse gas emissions reduction targets in line with the best available science, finding such matters sit at the core of high government policy and are unsuited to judicial determination.
That is according to Stuart Coppock, a NSW lawyer and forestry law specialist, who argues the 2025 Pabai decision and the International Court of Justice’s 23 July 2025 advisory opinion together provide no legal scaffolding for the Environmental Defenders Office’s push to overhaul the Environment Protection and Biodiversity Conservation Act.
The decision is significant for the timber and forestry sector, where Coppock argues the EDO’s parallel campaign to require greenhouse gas assessment under a reformed EPBC Act would extend a regulatory pattern already evident at the NSW EPA, whose Climate Change Policy and Action Plan lists forestry as a greenhouse gas emitter subject to regulatory remit despite NSW forestry legislation reserving regulation of forestry activities to other agencies.
The Federal Court case
The case was brought by two Torres Strait Islander elders, who argued the Commonwealth owed them a duty to set emissions targets in line with the best available science, had breached that duty in setting targets in 2015, 2020, 2021 and 2022, and that evidence indicated they would be forced to leave their homelands and lose their culture and identity as a result.
The Federal Court found the Commonwealth did not owe the duty, holding that such a recognition would require courts to weigh competing interests at the core of high government policy, and concluded the Commonwealth’s ability to set emissions targets did not give it materially relevant control in respect of the climate harm pleaded.
In its closing observations, the court told the applicants their case had failed “not so much because there was no merit in their factual allegations concerning the Commonwealth’s emissions reduction targets, but because Australian law as it currently stands provides no effective avenue for such claims, and the only remaining recourse is via the ballot box.”
On the constitutional question, Coppock argues the Federal Court got it right because the policy weighting of climate targets is reserved to the Commonwealth executive and the Parliament, rather than to judicial determination on a tort-style duty of care based in the common law.
The ICJ opinion and the EDO’s overreach
Wood Central understands the ICJ advisory opinion of 23 July 2025, Obligations of States in Respect of Climate Change, was requested by the UN General Assembly following a campaign led by Vanuatu, and the court rejected arguments from high-emitting states that mitigation obligations should be read only within specific climate treaties, applying broader customary international law instead.
Advisory opinions are non-binding, Coppock notes, while still carrying authoritative interpretation likely to influence domestic courts and climate litigation in Australia, subject to Australian law procedures. That qualification was omitted from the EDO’s 2025 media release on the opinion.
Australia’s dualist constitutional architecture means that treaties, including the Paris Agreement ratified on 10 November 2016, do not become part of domestic law unless Parliament legislates them into effect. The Paris Agreement is legally binding under international law in its procedural commitments, requiring parties to maintain, communicate and report successive Nationally Determined Contributions every five years, but the substantive emission-reduction pledges within those NDCs are voluntary, and no penalties or sanctions attach to a failure to meet them, Coppock writes.
Under the Albanese Government, Australia lifted its 2030 NDC from a 26–28 per cent reduction below 2005 levels to 43 per cent, and submitted a 2035 target of 62–70 per cent below 2005 levels in September 2025. Coppock argues none of this furnishes a domestic legal hook for the EDO’s contention that a reformed EPBC Act must require assessment of greenhouse gas emissions, including exported emissions, as a condition of project approval.
Well into its 2025 media release, the EDO acknowledges that Australia has no national framework for assessing climate risk from individual projects and that the Safeguard Mechanism is not an impact assessment framework. The concession sits at odds with the headline that the ICJ opinion makes clear governments cannot ignore climate harm in approving new projects, Coppock argues.
The NSW EPA pattern
The EDO’s legal pressure mimics a pattern already established at the NSW EPA, where a court interpretation has been used to extend the agency’s statutory remit beyond what Parliament has legislated, as Wood Central reported in its earlier coverage of NSW forestry regulation.
In Bushfire Survivors for Climate Action Incorporated v Environment Protection Authority [2021] NSWLEC 92, the NSW Land and Environment Court — a division of the Supreme Court of NSW — ordered the EPA to take specific steps on climate change, with Justice Preston finding the Protection of the Environment Administration Act’s duty to develop environmental quality objectives, guidelines and policies extended to climate change protection.
The NSW EPA subsequently issued a Climate Change Policy and Action Plan, where Figure 2 of that policy lists forestry as a greenhouse gas emitter subject to EPA regulatory remit, despite NSW forestry legislation reserving regulation of forestry activities to other agencies and confining the EPA to a regulatory role only.
The relevant forestry legislation is later in time than the legislation the court ruled on. Where there is any issue of interpretation, the later legislation, which reflects Parliament’s intent, takes priority — a matter conveniently ignored by the NSW EPA, Coppock said.
