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Melbourne. Law School. Legal Studies Research Paper. No. 269. The Role of Climate Change Litigation in. Australia's Response to Global Warming.

Melbourne Law School

Legal Studies Research Paper No. 269

The Role of Climate Change Litigation in Australia’s Response to Global Warming Jacqueline Peel

This article was first published in the 2007 Volume 24, Environmental and Planning Law Journal, a publication of the ©Lawbook Co, part of Thomson Legal & Regulatory Limited. www.thomson.com.au. Reproduced with permission.

This paper can be downloaded without charge from the Social Science Research Network Electronic Library at: http://ssrn.com/abstract=10121647

The role of climate change litigation in Australia’s response to global warming Jacqueline Peel* A series of recent cases, including the judgment of the New South Wales Land and Environment Court in Anvil Hill, signal the rise of climate change litigation in Australia. Climate change litigation involves legal action to seek redress for damage arising from activities said to be causing global climate change. The growth of climate change litigation has been particularly pronounced in the United States, due to perceived inaction by national political authorities to deal with issues of global warming. In Australia, frustration with the slow pace and fragmented nature of regulatory developments regarding climate change similarly appears to be encouraging environmental groups to turn to the courts as a possible saviour. This article argues that while there are positive indications in some climate change cases that the courts are prepared to embrace rigorous practices of EIA for assessing climate change impacts, climate change litigation is unlikely to be a panacea for delivering effective action on the reduction of greenhouse gas emissions. Rather, a strong national-level regulatory response is still required to generate the necessary behavioural change for deep cuts in emissions.

INTRODUCTION In 2006, climate change came of age as an issue of public and regulatory concern. The year saw the release of Al Gore’s film on “the climate crisis”, An Inconvenient Truth; the issue of the Stern Report, predicting the enormous economic costs of tardy action to reduce industrial greenhouse gas (GHG) emissions;1 and the occurrence of extreme weather events, such as the “worst drought in 1000 years”2 and devastating “mega-fires”.3 Around the world, most industrialised countries have made a formal international commitment to reduce their levels of GHG emissions, which are thought to be the main cause of anthropogenic climate change.4 The two “hold-outs” are the United States and Australia, which under the Bush Administration and the federal government of John Howard respectively, have refused to ratify the Kyoto Protocol and so accept internationally-binding emissions reduction targets.5 Domestically in both these countries, national governments have opposed mandatory GHG emissions controls, instead preferring to pursue an approach to addressing climate change based on voluntary action and other “soft” incentives for industry to reduce its carbon output. * BSc/LLB (Hon I), LLM (NYU); Senior Lecturer, Faculty of Law, University of Melbourne. The author would like to thank Rebecca Nelson for her diligent research assistance. Research for this article was undertaken as part of a joint project with Associate Professor Lee Godden, funded by a small grant awarded by the Law Faculty of the University of Melbourne. 1 Stern N, Stern Review on the Economics of Climate Change (HM Treasury, 2006). The report is the outcome of an independent expert review commissioned by the United Kingdom government. Sir Nicholas Stern is the former chief economist of the World Bank. 2

Shanahan D and Warren M, “Worst Drought in 1000 Years Revives the Water Market”, The Australian (8 November 2006) p 1.

3

Wahlquist A, “An Unstoppable Force”, The Australian (13 December 2006) p 11.

4

The science supporting human-induced climate change is widely accepted in the international community with the Inter-governmental Panel on Climate Change (IPCC) concluding in 2001 that the “Earth’s climate system has demonstrably changed on both global and regional scales since the pre-industrial era, with some of these changes attributable to human activities”: see Intergovernmental Panel on Climate Change, Climate Change 2001 Synthesis Report: Summary for Policy-makers (IPCC, 2001) p 4. The IPCC is currently finalising its fourth assessment report on climate change, due for publication in 2007. 5 Protocol to the United Nations Framework Convention on Climate Change, opened for signature 11 December 1997 (1998) 37 ILM 22 (entered into force 16 February 2005) (Kyoto Protocol). For a discussion of the reasons underlying the Australian position see Power TM, “Issues and Opportunities for Australia under the Kyoto Protocol” (2003) 20 EPLJ 459 at 466-469.

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The perceived inaction on climate change at the national political level in the United States and Australia is increasingly leading environmental groups and others to explore non-legislative solutions to the problem of global warming, including taking the matter before the courts. Climate change litigation, seeking redress for damage arising from human activities said to be causing global climate change, is a growing trend in the United States with over a dozen climate change lawsuits presently on the dockets of state and federal courts in the country.6 In the United States, climate change litigation takes many forms, with cases generally falling into the category of common law tortious actions – suing industrial polluters on the basis of claims in negligence or nuisance – or environmental law administrative actions – challenging government decision-making on the basis that environmental impact studies have inadequately considered climate change impacts.7 Tortious claims to obtain damages or another remedy against large GHG emitters face several hurdles, including establishing standing, demonstrating causation and apportioning liability between multiple contributing sources.8 In Australia, more stringent costs rules designed to discourage speculative litigation and legislative circumscription of tort remedies in state jurisdictions have made commentators more “dubious” about the likely success of this strategy.9 It is perhaps not surprising then, that climate change litigation in Australia has pursued the environmental/administrative law route, challenging the adequacy of environmental impact assessment (EIA) undertaken for projects likely to contribute significant quantities of GHG emissions. Three recent cases in this category, brought in New South Wales (the Anvil Hill case),10 Victoria (the Hazelwood case),11 and the Federal Court in Queensland (the Wildlife Whitsunday case),12 have involved challenges to the EIA process conducted for proposals for coal mines and coal-fired power stations. This article examines the phenomenon of climate change litigation in Australia, considering its effectiveness as a strategy for promoting greater action to address climate change. The first part of the article explores the factors that have prompted environmental groups and others to turn to the courts for a solution to the climate change issue, focusing particularly on the lack of mandatory emissions reduction requirements at the federal level and the fragmented approach to climate change regulation currently seen in the different states and territories. The next part of the article analyses the Australian climate change cases decided between late 2004 and 2006. It is argued that the two cases decided by state-based tribunals in New South Wales and Victoria, the Anvil Hill and Hazelwood decisions, show significant promise for encouraging practices of EIA in Australia that will be more rigorous in their consideration of the potential climate change impacts of human activities. However, as demonstrated by the Wildlife Whitsunday case in the Federal Court, there are likely to be limits to how far the judiciary can go in addressing climate change in the absence of political will at the governmental level to mandate strong regulatory action on GHG emissions reduction. The final section of the article therefore contends that nationally-led mandatory regulatory action in some form is still likely to prove the most effective avenue for addressing climate change in Australia. Indeed, given the importance of an effective response to climate change for long-term environmental sustainability in Australia, a 6 Pidot JR, Global Warming in the Courts: An Overview of Current Litigation and Common Legal Issues (Georgetown Environmental Law and Policy Institute, 2006) p 1. 7 Pidot, n 6, pp 1-3. Pidot also identifies two other categories of climate change litigation in the United States, which involve disputes over the applicability of the federal Clean Air Act to greenhouse gas emissions, and “preemption litigation” – “lawsuits claiming that federal authority bars states from regulating greenhouse gas emissions”, see p 2. 8 For analyses of the benefits and drawbacks of torts-based claims for climate change damage in the United States see Grossman DA, “Warming Up to a Not-So-Radical Idea: Tort-Based Climate Change Litigation” (2003) 28 Colum J Envtl L 1; Harper BP, “Climate Change Litigation: The Federal Common Law of Interstate Nuisance and Federalism Concerns” (2006) 40 Georgia Law Review 661. 9 Nagy M and Gilsenan R, “See You in Court: Beyond the Greenwash on Climate Change” (2005) 70 (September/October) Precedent 16 at 19. 10

Gray v The Minister for Planning [2006] NSWLEC 720.

11

Re Australian Conservation Foundation v Latrobe City Council (2004) 140 LGERA 100.

12 Wildlife Preservation Society of Queensland Proserpine/Whitsunday Branch Inc v Minister for the Environment & Heritage [2006] FCA 736.

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failure to put in place mandatory regulatory initiatives that ensure global warming impacts are adequately factored into economic decision-making processes calls into question the authenticity of governments’ commitment to the policy goal of ecologically sustainable development (ESD).13

AUSTRALIA’S

REGULATORY RESPONSE TO CLIMATE CHANGE

Government action in Australia to address the problem of threatened climate change was stimulated by the conclusion of the United Nations Framework Convention on Climate Change (UNFCCC) in June 1992,14 which Australia ratified in December 1992. One of the first actions taken by Australian governments was the development of a collaborative, national strategy for addressing the greenhouse issue. Following a period of public consultation, the Council of Australian Governments (COAG) approved the National Greenhouse Response Strategy at its December 1992 meeting. This Strategy was intended as a “visionary” document that would establish a framework for further Australian action on greenhouse issues.15 With the election of a new federal government under John Howard in 1996, and the conclusion of the Kyoto Protocol to the UNFCCC in 1997, the Strategy was extensively reviewed and substantially revised. The revamped National Greenhouse Strategy released in 1998 serves a broad strategic role in establishing government policy on climate change, but eschews the imposition of mandatory requirements for GHG emissions reductions. Instead its focus is on research, technological development,16 and a variety of voluntary programs, administered by a specially-tasked agency, the Australian Greenhouse Office (AGO). This emphasis on non-mandatory strategies for reducing GHG emissions in Australia reflects the Howard government’s view that “[t]aking precipitate or costly action to reduce emissions if not placed within a sensible international and domestic framework, would erode Australian industry’s ability to compete internationally and would impose serious and damaging costs on the Australian economy”.17

National-level initiatives The federal government’s overriding concern with the economic ramifications of introducing strong GHG emissions reduction measures has made it resistant to proposals for mandatory actions on the part of Australian businesses and communities to address their climate change impacts. In 1999, the AGO flirted with the idea of a national emissions trading program, releasing a series of discussion papers.18 The Howard Government announced, however, that it would not proceed with a mandatory domestic emissions trading scheme unless “the Kyoto Protocol is ratified by Australia, has entered into force and there is an established international emissions trading regime”.19 The latter two preconditions are now fulfilled but have been overtaken by the federal governments’ announcement (hot on the heels of a similar declaration by the Bush Administration) that it will not ratify the Kyoto 13 ESD was accepted as the central goal of national environmental policy by all Australian governments in 1992, pursuant to the National Strategy on Ecologically Sustainable Development. In essence, ESD requires “[d]evelopment that improves the total quality of life, both now and in the future, in a way that maintains the ecological processes on which life depends”. Fundamental underlying principles of ESD include the need to integrate environmental factors into socio-economic decision-making, to take adequate account of scientific uncertainty, and to consider the inter-generational effects of current activities. For further discussion see Fisher DE, “Sustainability: The Principle, its Implementation and its Enforcement” (2001) 18 EPLJ 361. 14 United Nations Framework Convention on Climate Change, opened for signature 9 May 1992, 1771 UNTS 164 (entered into force 24 March 1994) (UNFCCC). 15

Jones D, “The Kyoto Protocol, Carbon Sinks and Integrated Environmental Regulation: An Australian Perspective” (2002) 19 EPLJ 109 at 118. 16 In the latter category are the federal government’s support for geo-sequestration and exploration of the feasibility of nuclear power as a way of reducing GHG emissions. 17 Minchin N, “Responding to Climate Change: Providing a Policy Framework for a Competitive Australia” (2001) 7(2) UNSW Law Journal Forum 13. 18

Australian Greenhouse Office, National Emissions Trading: Establishing the Boundaries, Discussion Paper 1 (1999); Australian Greenhouse Office, National Emissions Trading: Issuing the Permits, Discussion Paper 2 (1999); Australian Greenhouse Office, National Emissions Trading: Crediting the Carbon, Discussion Paper 3 (1999); Australian Greenhouse Office, National Emissions Trading: Designing the Market, Discussion Paper 4 (1999). 19

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Government Response to the Senate Environment, Communications, Information Technology and the Arts References

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Protocol, even though it remains committed to achieving Australia’s internationally agreed Kyoto target of limiting national GHG emissions to 108% of 1990 levels between 2008 and 2012.20 (Prime Minister Howard’s recent announcement of a joint government-industry taskforce to investigate a carbon trading scheme may signal a change in direction on this issue, although green groups remain sceptical of the federal government’s sudden change of heart given the exclusion of environmental experts from the process).21 Other attempts to introduce mandatory measures dealing with climate change at the federal level have also not fared well. On the eve of his departure to the sixth meeting of the UNFCCC Conference of Parties, the then federal Environment Minister, Senator Robert Hill, released draft regulations designed to introduce a “greenhouse trigger” into the federal EIA legislation, the Environment Protection and Biodiversity Conservation Act 1999 (Cth) (EPBC Act).22 The proposal would have seen significant developments, such as new coal-fired power stations, subjected to a federal requirement for EIA where a project was likely to result in GHG emissions of more than 0.5 million tonnes of carbon dioxide equivalent in any 12 month period.23 However, the regulations never proceeded past the draft stage and in a recent review of the “matters of national environmental significance” included under the EPBC Act, the federal government has once again ruled out any extension of these matters to cover GHG emissions.24 The nearest the federal government has come to imposing compulsory climate change mitigation measures on industry is the “mandatory renewable energy target” (MRET) established by the Renewable Energy (Electricity) Act 2000 (Cth). This target requires wholesale purchasers of electricity to contribute proportionately towards the generation of an additional 9,500GWh of renewable energy per year by 2010, which is the equivalent of a 2% increase in the proportion of total electricity produced renewably, based on 1997 figures. In 2004 the MRET was reviewed and extended until 2020, however there will be no increase in the target of 9500GWh, meaning no new renewable energy generation is required after 2010.25 Since forecast electricity use in 2010 has increased, the target of 9500GWh is now thought to represent a mere 0.3% increase in renewable energy uptake.26 The lack of federal regulatory measures mandating action on climate change does not mean that the Australian government has been idle when comes to the greenhouse issue. Indeed, there is a truly dizzying array of programs in place, with the AGO as the central administrator in most cases. The animating idea of these programs is to engage local governments,27 households,28 and industries in partnership with the government to undertake voluntary actions to reduce overall greenhouse impacts. Committee Report: The Heat is On: Australia’s Greenhouse Future, June 2001, available online at http://www.aph.gov.au/ Senate/committee/ecita_ctte/completed_inquiries/1999-02/gobalwarm/reponse/response.pdf (viewed 18 December 2006). For a more recent statement of this policy position see Energy Task Force, Commonwealth of Australia, Securing Australia’s Energy Future (2004) available at http://www.dpmc.gov.au/publications/energy_future/docs/energy.pdf (viewed 18 December 2006). 20

See, AGO, Kyoto Protocol, available online at http://www.greenhouse.gov.au/international/kyoto/index.html (viewed 18 December 2006). 21 See Frew W, “PM Thaws on Carbon Trading”, The Sydney Morning Herald (14 November 2006) p 1; Wade M and Banham C, “Industry Dominates Emissions Taskforce”, The Sydney Morning Herald (11 December 2006) p 5. 22

Jones, n 15 at 121.

23

For details see Department of Environment and Heritage, Greenhouse Trigger, available online at http://www.deh.gov.au/ epbc/about/amendments/greenhouse.html (viewed 18 December 2006). 24

Minchin L, “Greenhouse Scrutiny Bid Rejected”, The Age (29 November 2006) p 3. Indeed, the federal government has proceeded in quite a different direction on the EPBC Act recently introducing amending legislation designed to “streamline” the EIA process and improve its “efficiency”: see Environment and Heritage Legislation Amendment Act (No 1) 2006 (Cth).

25 A private member’s bill was introduced by Senator Lees in 2004 to increase the MRET, however it was not passed and is no longer before the Parliament. 26 Renewable Energy Generators of Australia, Renewable Energy Fact Sheet Number Two (2004), available online at http://www.rega.com.au/Documents/Fact%20Sheets/2.%20Costs%20of%20a%20higher%20MRET.pdf (viewed 18 December 2006). 27 See eg, Cities for Climate Change Protection, Travel Demand Management and Local Greenhouse Action programs. Further details are available from the AGO website at http://www.greenhouse.gov.au/community/index.html (viewed 18 December 2006).

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The government’s flagship program with respect to industry stakeholders is known as Greenhouse Challenge, recent extended by Greenhouse Challenge Plus. Companies who choose to participate in this program on a voluntary basis are required to inventory their GHG emissions, develop an action plan to minimise emissions or enhance carbon sinks, forecast expected reductions and commit to regular review and reporting of their performance. In return for their involvement, companies receive various kinds of recognition that may enhance their public profile and green reputation, such as listing as a Greenhouse Challenge member, eligibility for annual awards and so on. Under the extension to the program announced in 2004 (Greenhouse Challenge Plus), participation is a mandatory requirement from 1 July 2006 for companies receiving business credits of $3 million or more, and proponents of large energy resource development projects.29 Nonetheless, serious questions remain over whether voluntary programs of the type instituted by Greenhouse Challenge are an effective means for achieving environmental goals. Evaluations of the use of voluntary programs for environmental purposes undertaken both by commentators,30 and influential policy organisations like the OECD,31 have been lukewarm in their assessment of the capacity of voluntary approaches to effect substantial behavioural change on the part of industry. This general view is backed up by analyses of specific environmental initiatives based on the voluntary model. For instance, a recent review of Greenhouse Challenge by Rory Sullivan highlights that while the program has had some positive effects, these are mainly of the “soft” variety, in other words, putting the GHG issue on the business decision-making agenda and helping participants to identify emissions reduction opportunities that also provide clear short-term financial benefits.32 Sullivan’s overall conclusions regarding Greenhouse Challenge and Greenhouse Challenge Plus are revealing as to extent to which we might expect a non-mandatory approach to lead to effective action on climate change. He surmises: The Greenhouse Challenge Plus is essentially a business as usual approach that does not provide the strong incentives for Australian business to significantly reduce its greenhouse gas emissions. Without policy measures such as emission trading that create a price for carbon, it is likely that greenhouse gas emissions from Australian business will continue to grow.33

It seems then that while a voluntary, incentives-based approach can take emitters some of the way, some of the time, substantial cuts in GHG emissions are still likely to require strong financial and regulatory drivers.

Action on climate change in the States In Australia’s federal system, where environmental powers are shared between the Commonwealth and the States,34 the potential always exists for State and Territory governments to fill any environmental regulatory gap left by federal inaction. Australian State and Territory governments have certainly been active in the field of climate change, in many cases introducing more far-reaching 28

See eg, Cool Communities Program. Further details are available online from the AGO website at http:// www.greenhouse.gov.au/gwci/index.html (viewed 18 December 2006). 29 Australian Greenhouse Office, Greenhouse Challenge Plus: An Australian Government-Industry Partnership to Reduce Greenhouse Gas Emissions and Improve Energy Effıciency (2005). 30 See eg, Fiorino DJ, The New Environmental Regulation (MIT Press, 2006) p 126; Gunningham N, Grabosky P and Sinclair D, Smart Regulation: Designing Environmental Policy (Clarendon, 1998) p 149; Sullivan R, Rethinking Voluntary Approaches in Environmental Policy (Edward Elgar, 2005). 31 OECD, Voluntary Approaches for Environmental Policy: An Assessment (OECD, 1999); OECD, Voluntary Approaches for Environmental Policy: Effectiveness, Effıciency and Usage in Policy Mixes (OECD, 2003). 32

Sullivan R, “Greenhouse Challenge Plus: A New Departure or More of the Same?” (2006) 23 EPLJ 60.

33

Sullivan, n 32 at 73.

34

Comprehensive discussion of the constitutional division of environmental powers in Australia is beyond the scope of this article, but for an overview of how the constitutional position has developed see Peel J and Godden L, “Australian Environmental Management: A ‘Dams’ Story” (2005) 28(3) UNSWLJ 668 at 670-678.

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initiatives than have been instituted federally.35 Yet, the coordination of such regulation is always a challenge in the absence of leadership at the national level. The States and Territories have taken a step in this direction with the establishment of a “national emissions trading task force” to develop a multi-jurisdictional emissions trading scheme for their consideration.36 However, a lack of enthusiasm for the scheme on the part of resource-rich States, such as Queensland and Western Australia, has cast a long shadow over its future viability.37 In the absence of any other nationally-agreed approach to climate change, the result has been the introduction of different policies and legislation in each jurisdiction, which tends to fragment the overall regulatory response to the greenhouse issue. Often the subject matter of these regulatory actions is similar, for instance, setting out a strategic framework for the jurisdiction’s climate change policy,38 establishing schemes to facilitate the uptake of renewable energy technologies or lower-GHG emitting energy sources,39 requiring GHG emissions to be considered as part of EIA processes,40 and introducing provision for carbon rights separable from land.41 Nevertheless, there is rarely any common approach discernible, with each jurisdiction designing regulations in accordance with its own circumstances and policy priorities. This regulatory fragmentation in the climate change response of States is well-illustrated by the different schemes that have been introduced for the recognition of carbon rights. In theory, these schemes pave the way towards a regulated national carbon trading market.42 In practice, however, there are a number of variations between the legislative provisions made in each State that could prove a significant hurdle to the operation of any such market.43 For instance, the different jurisdictions have reached different legislative judgments in relation to issues such as whether carbon rights exist in 35

One such example is the New South Wales Greenhouse Gas Abatement Scheme governing the retail electricity sector in that state. For details and an assessment of the scheme see Kearney T, “Market-based Policies for Demand Side Energy Efficiency: A Comparison of the New South Wales Greenhouse Gas Abatement Scheme and the United Kingdom’s Energy Efficiency Commitment” (2006) 23 EPLJ 113. 36

For details see National Emissions Trading Task Force online at http://www.emissionstrading.net.au (viewed 18 December 2006). 37

Warren M and Parnell S, “Beattie Cool on Costly Carbon Trade”, The Australian (17 August 2006) p 5.

38

The umbrella policy documents in each state and territory include the Tasmanian Greenhouse Statement (1999), available online at http://www.dpiwe.tas.gov.au/inter.nsf/Attachments/CDAT-53M7AF/$FILE/greenhouse.pdf (viewed 18 December 2006); the Northern Territory Strategy for Greenhouse Action (2006) available online at http://www.nt.gov.au/nreta/ environment/greenhouse/publications/pdf/greenhouse_action.pdf (viewed 18 December 2006); the New South Wales Greenhouse Plan (2005) available online at http://www.greenhouseinfo.nsw.gov.au/_data/page/975/28-11_FINAL_NSW_GH_Plan_ web.pdf (viewed 18 December 2006); the Victorian Greenhouse Strategy (2002) and Victorian Greenhouse Strategy Action Plan Update (2005) available online at http://www.greenhouse.vic.gov.au/greenhouse/images/VicGreenhouse-ActionPlan.pdf (viewed 18 December 2006); the Western Australian Greenhouse Strategy (2004) available from http://www.greenhouse.wa.gov.au/ index.cfm?event=strategy (viewed 18 December 2006); Tackling Climate Change: South Australia’s Draft Greenhouse Strategy (2005) available online at http://www.climatechange.sa.gov.au/PDFs/draft_strategy.pdf (viewed 18 December 2006); the Queensland Greenhouse Strategy (2004) available online at http://www.epa.qld.gov.au/publications/p01246aa.pdf/Queensland_ greenhouse_strategy_PDF_version.pdf (viewed 18 December 2006); and the ACT Greenhouse Strategy (2000) available online at http://www.sustainability.act.gov.au/greenhouse/thegreenhousestrategy.html#Development%20of%20new%20CCS (viewed 18 December 2006) – a replacement policy for the ACT is currently in development. 39 These initiatives include the New South Wales and ACT Greenhouse Gas Abatement schemes, Queensland’s 13% Gas scheme and Victoria’s Renewable Energy Target scheme. 40 See eg, Victoria, Ministerial Guidelines for the Assessment of Environmental Effects under the Environmental Effects Act 1978 (7th ed, 2006) providing that projects with potential greenhouse gas emissions exceeding 200,000 tonnes of carbon dioxide equivalent per annum, directly attributable to the operation of the facility, warrant referral to the Minister for assessment. See also Western Australian Environmental Protection Authority, Guidance Statement for Minimising Greenhouse Gas Emissions No 12 (2002). 41

See Carbon Rights Legislation Amendment Act 1998 (NSW); Forestry and Land Title Amendment Act 2001 (Qld); Forestry Property Act 2000 (SA); Forestry Rights Registration Amendment Act 2002 (Tas); Carbon Rights Act 2003 (WA); Forestry Rights (Amendment) Act 2001 (Vic). For overviews of these developments see Thompson A and Campbell-Watt R, “Carbon Rights - Development of the Legal Framework for a Trading Market” (2004) 2 National Environmental Law Review 31; Thompson AG and Olszewska J, “Australia: Carbon Rights” (2003) 1(1) Oil, Gas & Energy Law Intelligence 17. 42

Thompson and Campbell-Watt, n 41 at 35.

43

Jones, n 15 at 123.

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arrangements that pre-date the new legislation,44 the land to which carbon rights are applicable (ie whether Crown land is included),45 the biological entities that are considered to sequester carbon,46 whether carbon rights create an interest in land,47 the legal nature of carbon rights,48 and whether the right to harvest vegetation is separable from the carbon sequestration right.49 As David Jones points out, a fragmented response of this kind undermines the potential for integrated environmental management – both between jurisdictions and between greenhouse and related environmental issues – which is likely to be an essential part of an effective strategy for dealing with the wide-scale, cumulative impacts predicted as a consequence of climate change.50

AUSTRALIAN

CLIMATE CHANGE LITIGATION For an increasing number of those concerned about climate change, frustration with government regulation that is perceived to be ineffective or piecemeal is leading to a focus on the courts as a way of achieving definitive action on GHG emissions reduction.51 Courts, with their independence from government and capacity to develop legal principles of broad application, can offer an attractive mechanism for spurring legal change where political processes are deadlocked. In Australia there are a range of specialist environmental courts and tribunals that might be expected to have expertise regarding, and a sympathetic stance towards, arguments based on climate change impacts.52 In addition, EIA requirements in Australia are relatively uniform and united by a common focus on the policy goal of ESD.53 There is thus potential for a “climate friendly” interpretation of legislation in one jurisdiction to be taken up by courts in other jurisdictions around the country.54 A variety of different environmental groups and activists in Australia have taken an interest in the use of climate change lawsuits, with a particularly active campaign being run by the Climate Action Network Australia (CANA). In July 2003, CANA launched its Australian Climate Justice Program, a “collaborative initiative of activists, lawyers and scientists” that “aims to explore legal avenues for making the perpetrators of climate change accountable for the damage they cause”.55 As part of the CANA campaign, a law firm acting on its behalf issued notifications to the directors of selected Australian corporations, such as Caltex Australia, Qantas, Woodside Petroleum, and AGL, advising 44 In Western Australia there is no recognition of carbon rights accruing to foresters under pre-existing arrangements between landowners and foresters whereas the Victorian legislation deems a forest property right granted under a forest property agreement in force immediately before the commencement of the amendment legislation to include a carbon sequestration right. 45 In Western Australia the applicable land includes any freehold or Crown land but in Victoria carbon rights only apply in relation to private land. 46 In Victoria these include trees, where trees are “trees, shrubs, bushes, seedlings, saplings and reshoots, whether alive or dead” (Forestry Rights Act 1996 (Vic) s 3); in Tasmania it is trees, where trees “include not only timber trees, but trees, shrubs and bushes, seedlings, saplings, and re-shoots of every description and the roots of any such trees” (Forest Act 1920 (Tas) s 4); whereas in Western Australia all forms of vegetation are included. 47 In Victoria “forest property rights” (ie rights in vegetation) are deemed not to be interests in land (Forestry Rights Act 1996 (Vic) s 11(b)) whereas carbon sequestration rights are interests in land in Queensland, New South Wales, South Australia and Western Australia. 48 In Tasmania, New South Wales, South Australia and Queensland, forestry rights, including carbon sequestration rights are profits a prendre but this is not the case in Victoria and Western Australia. 49

Such rights are apparently inseparable in Tasmania and South Australia but clearly separable in Western Australia and Victoria.

50

Jones, n 15 at 127-128.

51

Long S, “Climate Change: Could Litigation Provide Equity Where the Kyoto Protocol is Failing” (2004) 29(2) Alternative Law Journal 92. 52

Bates G, Environmental Law in Australia (6th ed, Butterworths, 2006) p 114.

53

For an overview of Australian EIA procedures see Thomas I and Elliott M, Environmental Impact Assessment in Australia: Theory and Practice (4th ed, Federation Press, 2005) pp 97-138.

54 For an illustration of this phenomenon with respect to interpretation of the concept of “impact” in EIA legislation see Peel and Godden, n 34 at 694-695. 55

See CANA, Australian Climate Justice Program, available online at http://www.cana.net.au/index.php?site_var=333 (viewed 18 December 2006).

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them of the financial risks that climate change presents to their companies and of their legal obligations to deal with those risks appropriately.56 These notifications were also intended to alert large companies with significant GHG emissions to the “legal risk” of climate change lawsuits they faced if their activities were undertaken without an effort to minimise global warming impacts. In this regard, CANA and other environmental groups have been prepared to back up their warnings with legal action in the courts. For instance, CANA was one of the four environmental groups that brought the Hazelwood case in Victoria, which signalled the beginnings of climate change litigation in Australia.

Hazelwood case The Hazelwood coal-fired power station is one of Victoria’s largest and a significant contributor to the State’s overall GHG emissions.57 The various brown coal reserves which serviced the power station over its previous 40 years of operation were destined to run out in 2009, prompting the station’s owner to apply to develop an alternative coal field that would prolong the operation of the plant until 2031. Not surprisingly, the extension of the Hazelwood power station was strenuously opposed by green groups in Victoria, including CANA, because of the contribution to global warming likely to be caused through burning of the harvested coal. It seemed, however, that the Victorian government would be able to circumvent the concerns of environmental groups when it advised the power station that the issue of GHG emissions from the power station, caused by the burning of harvested coal, would fall outside the scope of the required EIA, as a separate government process would be adopted to consider these emissions. As a consequence, the panel set up under the Victorian Planning and Environment Act 1987 (P&E Act) and the Environmental Effects Act 1978 to consider the extension of the power station was instructed “not to consider matters related to greenhouse gas emissions from the Hazelwood Power Station”.58 An assessment under the P&E Act was necessary as the proposal required the amendment of the local council’s planning scheme in order to allow for the opening up of the new coal field. In accordance with the ordinary processes for public comment under the P&E Act, submissions on the amendment proposal were made by four environmental groups who canvassed the issue of the environmental impact of GHG generated by continuing to burn brown coal at the power station beyond the year 2009.59 However, the EIA panel considering the project ruled that it could not consider the GHG impacts of burning coal won as part of the new coal field, and hence excluded these matters from its assessment. Bowed but not defeated by these manoeuvrings on the part of the Victorian government, the environmental groups concerned brought an action in the Victorian Civil and Administrative Tribunal (VCAT) alleging that the assessment panel’s actions in excluding the matter of GHG emissions from its evaluation, failed to comply with s 24 of the P&E Act. This section provides that a panel appointed to consider submissions about an amendment to a planning scheme must consider all submissions referred to it. Morris J, the President of VCAT, construed this requirement to mean that a panel is only obliged to consider submissions that are relevant to planning issues and relate to the particular amendment.60 Hence the question became whether the environmental impacts of GHG generated by the continuation of the Hazelwood Power Station were relevant to the proposed planning scheme amendment.61 In essence, VCAT answered this question in the affirmative, finding that the assessment panel should have given consideration to submissions to the effect that the continuation of the Hazelwood Power Station could have adverse environmental effects by reason of the generation of 56

Nagy and Gilsenan, n 9 at 17.

57

Indeed, the State’s peak environmental non-governmental organisation, Environment Victoria cites Hazelwood as “Australia’s most greenhouse polluting power station”: see Environment Victoria, Hazelwood power station, available online at http://www.envict.org.au/inform.php?menu=5&submenu=475&item=425 (viewed 18 December 2006). 58

Re Australian Conservation Foundation v Latrobe City Council (2004) 140 LGERA 100 at 103.

59

Re Australian Conservation Foundation v Latrobe City Council (2004) 140 LGERA 100 at 103.

60

Re Australian Conservation Foundation v Latrobe City Council (2004) 140 LGERA 100 at 106.

61

Re Australian Conservation Foundation v Latrobe City Council (2004) 140 LGERA 100 at 106.

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GHG.62 Morris J’s underlying reasoning was that such submissions would still be relevant and related to an amendment “even if it relates to an indirect effect of the amendment”.63 The test his Honour proposed in respect of the necessary nexus between the amendment and the environmental effect asked: whether the effect may flow from the approval of the amendment; and, if so, whether, having regard to the probability of the effect and the consequences of the effect (if it occurs), the effect is significant in the context of the amendment.64

In finding that greenhouse issues were relevant to the EIA process, despite the government’s efforts to limit its scope, Morris J not only took a broad view of the ambit of the amendment,65 but also of the nature of the relevant planning issues. Objectives of planning schemes prepared in accordance with the P&E Act relating to “maintaining ecological processes” and “balanc[ing] the present and future interests of all Victorians” were thus taken by the Tribunal to signal the importance of a consideration of inter-generational effects, such as the climate change consequences of burning brown coal over the long-term.66 For environmental groups the decision in the Hazelwood case represented a small, but nonetheless significant, victory in their effort to ensure that the climate change impacts of industrial activities are factored into environmental decision-making processes. While the Victorian government ultimately gave the green (or perhaps, more accurately, the brown) light for the Hazelwood power station’s expansion,67 VCAT’s decision in the case had demonstrated the viability of climate change litigation in Australia as a worthwhile strategy for addressing the GHG emissions of major polluters.

Anvil Hill case The Anvil Hill case is another recent instance of Australian climate change litigation, having been decided by the New South Wales Land and Environment Court on 27 November 2006.68 The decision of Pain J in this case amounts to a significant augmentation of the approach taken in Hazelwood, situating the need for an adequate assessment of the climate change impacts of major development proposals squarely within the framework of ESD. The legal firm, Allens Arthur Robinson, has described the case in its briefing materials for clients as a “landmark” decision that potentially sets a significant new standard for future industry and mining developments in NSW, requiring that the global warming impacts of proposed projects be considered and adequately assessed as part of the planning process.69 62

Re Australian Conservation Foundation v Latrobe City Council (2004) 140 LGERA 100 at 110.

63

Re Australian Conservation Foundation v Latrobe City Council (2004) 140 LGERA 100 at 109.

64

Re Australian Conservation Foundation v Latrobe City Council (2004) 140 LGERA 100 at 109. His Honour based this test on the decision of the Full Federal Court in Minister for Environment and Heritage v Queensland Conservation Council Inc (2004) 139 FCR 24; 134 LGERA 272 (Nathan Dam case). 65 In his Honour’s view this was not restricted simply to the aspects of the application relating to road closures and openings, and the removal of a flooding overlay. Rather the approval of the amendment would “make it more probable that the Hazelwood Power Station will continue to operate beyond 2009; which, in turn, may make it more likely that the atmosphere will receive greater greenhouse gas emissions than would otherwise be the case; which may be an environmental effect of significance”: Re Australian Conservation Foundation v Latrobe City Council (2004) 140 LGERA 100 at 110. 66

Re Australian Conservation Foundation v Latrobe City Council (2004) 140 LGERA 100 at 109.

67

Minchin L and Myer R, “Reprieve for Dirtiest Power Plant”, The Age (14 February 2005) p 3. The Victorian government stepped in to approve the expansion before the EIA panel had finished reconsidering its findings. 68 The New South Wales Minister for Planning has indicated that the decision will not be appealed: see New South Wales, Department of Planning, Anvil Hill Judgment (Media Release – Minister’s Office, 21 December 2006) available online at http://www.planning.nsw.gov.au/mediarelplan/fs20061128_451.html (viewed 16 February 2007). Recently the Queensland Land and Resources Tribunal handed down its first ruling considering GHG emissions although it came to the opposite conclusion to the Anvil Hill court. In Xstrata Coal Queensland Pty Ltd [2007] QLRT 33, the Tribunal was not satisfied of the existence of a demonstrated causal link between the anticipated GHG emissions of a proposed new coal mine and any discernable harm or environmental impact caused by global warming. 69

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Hughes A and Pearce J-A, “Environmental Impact Assessment Must Properly Assess Greenhouse Gas Emissions” (2006)

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The firm also predicts that the favourable outcome in the Anvil Hill case will encourage further climate change litigation in Australia, along the lines of actions occurring in the United States. Like the Hazelwood case, at issue in Anvil Hill was the adequacy of an EIA prepared as part of the development approval process. The development proposal at issue was for construction of a large new open-cut coal mine at Anvil Hill, near Newcastle, capable of producing up to 10.5 million tonnes of coal per annum over a lifespan of 21 years. Coal from the proposed mine is destined for use in coal-fired power stations in New South Wales and overseas, particularly in Japan. The project required environmental assessment under Pt 3A of the Environmental Planning and Assessment Act 1979 (NSW) (EPAA), which applies to major infrastructure and other significant development proposals undertaken in New South Wales. Terms of reference for the EIA were set by the Director-General of the Department of Planning which required that the assessment include, as a “key” issue, “Air quality – including a detailed greenhouse gas assessment”.70 The EIA prepared by the proponent’s environmental consultants consequently considered the potential GHG emissions from the project, largely assessing these in accordance with an industry standard known as the World Business Council for Sustainable Development and World Resources Institute GHG Protocol (the Protocol).71 This Protocol applies to the reporting of GHG emissions and specifies three categories which are (1) direct GHG emissions from sources owned or controlled by the proponent (2) GHG emissions from the generation of purchased electricity consumed by the proponent and (3) other “indirect emissions” which the Protocol specifies as an optional reporting category. The latter category of emissions would have covered an analysis of the potential GHG emissions from the burning of coal by third parties outside the control of the proponent, but were not assessed in the EIA for the Anvil Hill mine proposal. It was this omission that was challenged by the applicant in the case, a local environmental activist who was also a member of the Rising Tide Newcastle climate change action group.72 In her judgment in the Anvil Hill case, Pain J accepted the applicant’s argument that GHG emissions from the burning of coal to be extracted from the new mine should have been considered in the proponent’s environmental assessment because of their potential contribution to climate change/global warming.73 Like VCAT in the Hazelwood case, Pain J reached this decision on the basis that both the direct and indirect impacts of the project on the environment of New South Wales were relevant to the assessment process.74 Moreover, while her Honour noted that climate change is a global problem with many contributing sources, the judge held this did not mean that the contribution from a single large source, such as the Anvil Hill Project in the New South Wales context, should be ignored in the environmental assessment process.75 Consequently her Honour ruled that there is a sufficiently proximate link between the mining of a very substantial reserve of thermal coal in NSW, the only purpose of which is for use as fuel in power stations, and the emission of GHG which contribute to climate change/global warming, which is impacting now and likely to continue to do so on the Australian and consequently NSW environment, to require assessment of that GHG contribution of the coal when burnt in an environmental assessment under Pt 3A.76 December Allens Arthur Robinson: Focus available online at http://www.aar.com.au/pubs/ldr/focrdec06.htm. The decision has also prompted a flood of press articles attempting to evaluate the significance of the court’s rulings: see eg, Farrelly E, “Two Victories for the Environment Turn up the Heat on Political Leaders”, The Sydney Morning Herald (6 December 2006) p 13; Merritt C and Warren M, “Activist Judge in Objection to Mine”, The Australian (30 November 2006) p 6; Perinotto T, “Court Ruling Spooks Developers”, Australian Financial Review (1 December 2006) p 69. 70

Gray v The Minister for Planning [2006] NSWLEC 720 at [16].

71

World Business Council for Sustainable Development and World Resources Institute, The Greenhouse Gas Protocol: A Corporate Accounting and Reporting Standard (World Resources Institute, 2001). 72 Details of this grassroots climate action association can be found at the website of Rising Tide Australia, www.risingtide.org.au (viewed 18 December 2006). 73

Gray v The Minister for Planning [2006] NSWLEC 720 at [97].

74

Gray v The Minister for Planning [2006] NSWLEC 720 at [91]. Once again, significant reliance was placed on the Federal Court’s jurisprudence in the Nathan Dam case in reaching this finding. 75

Gray v The Minister for Planning [2006] NSWLEC 720 at [98].

76

Gray v The Minister for Planning [2006] NSWLEC 720 at [100].

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In and of itself, this finding is highly significant as it sends a clear signal that for projects with the potential to contribute substantially to GHG emissions, whether directly or indirectly, the climate change impacts of the proposal “should be properly considered and assessed, rather than overlooked”.77 However, perhaps of even greater importance are the links the court went on to draw between an adequate environmental assessment of climate change impacts and compliance with ESD principles such as those of inter-generational equity and precaution.78 The court emphasised that the “key purpose” of EIA is “to provide information about the impact of a particular activity on the environment to a decision maker to enable him or her to make an informed decision based on adequate information about the environmental consequences of a particular development”.79 For an environmental assessment to take proper account of the principles of inter-generational equity and precaution,80 Pain J found there was a need to assess the long-term, on-going, and cumulative impacts of a proposal on the environment,81 as well as putting sufficient information before the Minister to enable his consideration of all relevant matters so that if there is serious or irreversible environmental damage from climate change/global warming and there is scientific uncertainty about the impact he can determine if there are measures he should consider to prevent environmental degradation in relation to this project.82

Importantly, the court ruled that it was not sufficient for the proponent simply to raise the climate change/global warming issue in the EIA to satisfy the requirement to look to long-term environmental impacts.83 An adequate assessment of this issue was still required and the fact that precise quantification might be difficult did not mean that it did not have to be attempted in the EIA.84 The actions brought in the Anvil Hill and Hazelwood cases were judicial review actions and, as in all such cases, this limited the reviewing courts to ruling on the legality of the procedures followed in decision-making rather than dealing directly with the merits of the outcomes of the decision-making process.85 Pain J, for instance, agreed with the respondents’ arguments “that ESD principles do not require that the GHG issue, including downstream emissions, override all other considerations”86 and stressed that it was ultimately up to the responsible Minister to “decide how the ESD principles in their entirety are to be applied in relation to the Anvil Hill Project in terms of the integration of 77

Hughes and Pierce, n 69.

78

Gray v The Minister for Planning [2006] NSWLEC 720 at [114]-[115]. The court found that these principles were equally applicable to Pt 3A of the EPAA as to other parts of the Act. 79

Gray v The Minister for Planning [2006] NSWLEC 720 at [118].

80

There is a abundant literature in existence on both these principles of ESD, particularly the precautionary principle. For a selection see Barton C, “The Status of the Precautionary Principle in Australia: Its Emergence in Legislation and as a Common Law Doctrine” (1998) 22 Harv Envtl L Rev 509; Deville A and Harding R, Applying the Precautionary Principle (Federation Press, 1997); Elizabeth Fisher and Ronnie Harding, “The Precautionary Principle in Australia: From Aspiration to Practice?” in O’Riordan T, Cameron J and Jordan A (eds), Reinterpreting the Precautionary Principle (Cameron May, 2001) p 215; Harding R and Fisher E (eds), Perspectives on the Precautionary Principle (Federation Press, 1999); Peel J, The Precautionary Principle in Practice: Environmental Decision-making and Scientific Uncertainty (Federation Press, 2005); Young MD, For Our Children’s Children: Some Practical Implications of Intergenerational Equity and the Precautionary Principle (Occasional Publication No 6, Resource Assessment Commission, 1993). 81 Gray v The Minister for Planning [2006] NSWLEC 720 at [122] and [131]. The court stressed that in the climate change context “there is considerable overlap between the environmental assessment requirements to enable these two aspects of ESD [ie inter-generational equity and precaution] to be adequately dealt with”: see para [134]. 82 Gray v The Minister for Planning [2006] NSWLEC 720 at [133]. The court referred to another recent decision of the New South Wales Land and Environment Court in Telstra Corp Ltd v Hornsby Shire Council (2006) 146 LGERA 10, which describes the requirements of threats of serious/irreversible environmental damage and a lack of full scientific certainty as the two “conditions precedent” for operation of the precautionary principle. 83

Gray v The Minister for Planning [2006] NSWLEC 720 at [137].

84

Gray v The Minister for Planning [2006] NSWLEC 720 at [138].

85

See Bates, n 52, pp 207-210; 213-216 for an explanation of the differences between merits appeals and judicial review in environmental cases. 86 In this regard, her Honour applied the ruling from an early case challenging a power station proposal on the basis of its GHG impacts, the case of Greenpeace Australia Ltd v Redbank Power Company Pty Ltd (1994) 86 LGERA 143.

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environmental and economic decision making the principle of ESD requires”.87 The vital importance of the Anvil Hill and Hazelwood cases then lies in the suggestion that the Australian judiciary are becoming more willing to impose rigorous standards of EIA for development projects with the potential to contribute substantially to climate change than may have been the case in the past.88 While the flow-on effects of greater thoroughness in the EIA process conducted for GHG emitting projects should not be underestimated,89 it remains the case that in judicial review proceedings the courts can not force decision-makers to determine applications in a particular way. Indeed, it has been suggested that amendments to the EPAA passed by the New South Wales Parliament on 23 November 2006 will allow the Minister for Planning to disregard the court’s decision in the Anvil Hill case and approve the mine in its current form.90

LIMITS

OF CLIMATE CHANGE LITIGATION:

THE WILDLIFE WHITSUNDAY

CASE

Ultimately, a litigation strategy for pursuing climate change action – at least where it is based on environmental law administrative challenges – is heavily dependent for its success on adequate breadth in the applicable legislation to permit a “climate friendly” interpretation and the willingness of courts to adopt such an interpretation.91 Another recent climate change case, this time before the Federal Court, illustrates the limitations of the litigious approach where either or both of these preconditions are not met. The facts of the Wildlife Whitsunday case were similar to those in Anvil Hill in that the proposals at issue involved two new Queensland coal mines where it was alleged by the environmental groups bringing the case that the result of burning of the harvested coal would be the production of significant quantities of GHG emissions, thereby contributing to the problem of global warming. The applicants in the case were not seeking to challenge the EIA conducted under Queensland state legislation but rather the decision by the federal Environment Minister regarding the necessity for an EIA to be undertaken pursuant to the EPBC Act. Unlike state EIA legislation, the EPBC Act is quite restrictive in terms of the environmental matters to which it applies as its EIA and approval requirements are only triggered where a project is likely to have significant impacts on designated “matters of national environmental significance” (MNES).92 While the MNES specified under the EPBC Act include many matters in respect of which the Commonwealth bears international treaty obligations,93 preventing climate change or limiting the emission of GHG is not among them. In order to trigger the EIA requirement under the EPBC Act for a project with potential GHG impacts, it is necessary to link the global warming issue in some way to MNES that are protected under the Act, such as world heritage areas. This was essentially the way the applicants’ case proceeded in the Wildlife Whitsunday case, with an argument being put forward that the burning of coal harvested from the mines would contribute to global warming, which could have substantial adverse impacts on the ecosystems of world heritage areas like the Great Barrier Reef. Hence it was argued that the climate 87

Gray v The Minister for Planning [2006] NSWLEC 720 at [136].

88

Some commentators discern in recent Australian decisions a “new environmental activism” coupled with an insistence by the courts “on an assessment of impacts that would, until recently, have been considered too remote to have been of relevance to the environmental impact assessment process”: see Gardiner D, Mining in Greenhouses – Digging Deeper into Environmental Impact Assessment (Paper presented at the AMPLA 29th Annual Conference, 24-27 August 2005). See also Dick T, “Laws Will Only Get Greener, Warns Judge”, The Sydney Morning Herald (1 December 2006) p 3, reporting on a speech given by Preston CJ of the New South Wales Land and Environment Court. 89 For instance, judicial insistence on greater rigour in EIA can contribute to a culture of environmental “due diligence” amongst project legal advisors, environmental consultants and financiers that ultimately fosters a better understanding of environmental impacts prior to commencement of a project. 90

Hughes and Pierce, n 69.

91

One should add that willing and well-financed litigants are also a prerequisite for this strategy to work effectively. Environmental groups, however, can often face significant financial and other hurdles to bringing legal actions in courts. 92 This omission has been a consistent source of criticism of the EPBC Act. See eg, Ogle L, “The Environment Protection and Biodiversity Conservation Act 1999 (Cth): How Workable Is it?” (2000) 17 EPLJ 468 at 469-470. 93 These include world heritage properties, Ramsar internationally-significant wetlands, listed threatened species and ecological communities and listed migratory species.

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change impacts of the proposed mines should have been taken into account by the Minister in determining whether the EPBC Act was applicable, and a failure to do so rendered his decision not to require federal EIA for the projects void. In the course of the case it emerged that a departmental delegate, Mr Flanigan, had in fact taken the greenhouse issue into account in his decision-making process as being amongst the possible “indirect” impacts of proposal, although he had determined that such impacts, as far they as related to the Great Barrier Reef, were speculative.94 Dowsett J of the Federal Court thus accepted that the matter of GHG emissions from the mining and burning of coal had been considered in the relevant decision not to require an EPBC Act-EIA for the mines, despite the paucity of reasons provided by the delegate in this regard.95 The judge was dismissive of the other grounds of review raised by the applicants and critical of the lack of specific information provided as to how the project would have an impact on protected areas. In this regard, Dowsett J was far more sceptical of arguments concerning a causal link between coal mining activities and damage to ecosystems through climate change than his judicial colleagues in the Hazelwood and Anvill Hill cases.96 This scepticism is evident in a pivotal paragraph of his judgment, where his Honour stated: I have proceeded upon the basis that greenhouse gas emissions consequent upon the burning of coal mined in one of these projects might arguably cause an impact upon a protected matter, which impact could be said to be an impact of the proposed action. I have adopted this approach because it appears to have been the approach adopted by Mr Flanigan. However I am far from satisfied that the burning of coal at some unidentified place in the world, the production of greenhouse gases from such combustion, its contribution towards global warming and the impact of global warming upon a protected matter, can be so described. The applicant’s concern is the possibility that at some unspecified future time, protected matters in Australia will be adversely and significantly affected by climate change of unidentified magnitude, such climate change having been caused by levels of greenhouse gases (derived from all sources) in the atmosphere. There has been no suggestion that the mining, transportation or burning of coal from either proposed mine would directly affect any such protected matter, nor was there any attempt to identify the extent (if any) to which emissions from such mining, transportation and burning might aggravate the greenhouse gas problem. The applicant’s case is really based upon the assertion that greenhouse gas emission is bad, and that the Australian government should do whatever it can to stop it including, one assumes, banning new coal mines in Australia.97

The decision in the Wildlife Whitsunday case may well serve to dampen some of the enthusiasm for climate change litigation engendered by the Hazelwood and Anvil Hill cases. On the other hand, it may prove possible to distinguish the Federal Court decision, as Pain J attempted to do in Anvil Hill, on the basis that different, less restrictive legislative requirements for EIA apply in the States than pertain federally, and that insufficient information was provided by the applicants in the Wildlife Whitsunday case as to the likely extent of climate change impacts and feasible means of measuring GHG emissions.98 In particular, it arguable that the absence of a “greenhouse trigger” in the EPBC Act requires an extra step in the reasoning process to establish not just that GHG emissions will have environmental impacts, but that those environmental impacts will have significant consequences for areas protected under the EPBC Act. Nonetheless, the sceptical tone of Dowsett J’s judgment also serves to highlight that not all members of the Australian judiciary will be as easily persuaded by contentions based on the inter-connectedness of the environment and the potential for GHG-emitting activities to have cumulative, long-term environmental impacts as was the case for the judges deciding Hazelwood and Anvil Hill. 94 Wildlife Preservation Society of Queensland Proserpine/Whitsunday Branch Inc v Minister for the Environment & Heritage [2006] FCA 736 at [18], [21] and [30] 95 Wildlife Preservation Society of Queensland Proserpine/Whitsunday Branch Inc v Minister for the Environment & Heritage [2006] FCA 736 at [42]-[44]. 96

See also the recent case of Xstrata Coal Queensland Pty Ltd [2007] QLRT 33.

97

Wildlife Preservation Society of Queensland Proserpine/Whitsunday Branch Inc v Minister for the Environment & Heritage [2006] FCA 736 at [72]. 98

Gray v The Minister for Planning [2006] NSWLEC 720 at [93]. Federal Court decisions are, in any event, persuasive but not binding on State courts.

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NEED

FOR NATIONAL LEADERSHIP ON CLIMATE CHANGE

Although it has become unfashionable to say it, strong regulatory action by governments (“command-and-control”) remains one of the most effective ways to bring about behavioural change for the benefit of the environment, particularly where such change has high associated economic costs.99 This would certainly appear to be the case in the climate change context, where the nature of the problem at issue is such that it will require fundamental changes in the way we produce and use energy, transport goods, manufacture and dispose of products, and utilise our natural resources. This is not to say that a single regulatory approach will suffice in order to manage the greenhouse issue – indeed, it seems probable that the breadth and integrative nature of the climate change challenge will necessitate a multi-faceted regulatory approach.100 Nonetheless, even if on-the-ground implementation is dependent on the actions of non-governmental actors – whether businesses under an emissions trading scheme or community and environmental groups under an EIA regime that relies on their participation – government still plays a vital role in setting mandatory targets for GHG emissions reduction and harnessing the necessary resources to ensure effective monitoring and a credible enforcement effort. Given the national, indeed global, significance of the climate change issue and the inter-jurisdictional nature of potential impacts, it is the Commonwealth government that would seem best placed to introduce mandatory emissions controls and to coordinate the actions of the States and Territories. This could readily be done if the Commonwealth government were to ratify the Kyoto Protocol and introduce implementing legislation setting national a GHG emissions cap based on Australia’s Kyoto target. A more elaborate regulatory approach might extend to the inclusion of a greenhouse trigger in the EPBC Act, designed to ensure that the greenhouse issue is adequately considered in development planning, and/or the establishment of a national emissions trading scheme to provide a cost-effective means for industry to reduce GHG production. In default of national leadership on the issue of climate change, the courts and climate change litigation are likely to continue to play a significant role in the actions taken to reduce GHG emissions in Australia. This strategy may have substantial, flow-on benefits for environmental law in general, particularly by increasing the rigour of EIA practices and clarifying the obligations of environmental decision-makers with respect to achieving the goals of ESD. Yet the ad hoc nature of court proceedings, the expense involved in bringing them, and the uncertainty as to their results means that, in the long-term, litigation alone is unlikely to be an optimal approach for bringing about effective action to address climate change. Ultimately, the most significant contribution of climate change litigation in Australia may be in putting the GHG issue firmly on the government and business policy agenda in a way that provides momentum for stronger regulatory action. There are already some signs that this may be happening in Australia, with businesses beginning to voice a preference for the certainty of government regulation of their GHG emissions over the uncertainty of exposure to the legal risks of climate change litigation.101

CONCLUSION Climate change litigation is a relatively new phenomenon in Australia but recent decisions ruling in favour of the arguments of environmental applicants suggest that it is a trend that will only continue to grow in the coming years. In the United States and elsewhere around the world, climate change litigation is emerging as a promising strategy for raising the profile of the global warming issue and forcing business and governments to change their decision-making practices with regard to GHG 99 While many commentators are enthusiastic about moving “beyond command-and-control” (see eg, Wylynko B, “Beyond Command and Control: Environmental Licensing Strategies” (1999) 16 EPLJ 277), the central role of a core of command-and-control underlying environmental law is emphasised even by those at the forefront of exploring alternative, “new generation” environmental policy tools: see eg, Gunningham et al, n 30. 100

Gunningham et al, n 30, p 4.

101

Nagy and Gilsenan, n 9 at 20.

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emissions.102 The genesis for the rise of climate change litigation in Australia seems to be widespread frustration in the environmental community with the slow and fragmented response to controlling GHG emissions on the part of Australian governments. In particular, the lack of uniform, mandatory standards governing levels of GHG emissions is seen to be holding back effective regulatory action on climate change. In these circumstances, legal action in the courts offers an attractive alternative, with the potential to effect significant change in the way climate change is treated in processes of EIA. This potential has been borne out by the decision in the Hazelwood case, and even more so with the recent judgment in the Anvil Hill case. These cases suggest a growing awareness of the greenhouse issue amongst the Australian judiciary and a willingness to demand an adequate consideration of the long-term, cumulative and indirect impacts of GHG emissions despite the “global” nature of the climate change problem and the difficulties of determining the relative contribution of individual emitters. By setting her decision within the broader framework of ESD, Pain J in the Anvil Hill case has also signalled that climate change is an issue of central importance to processes for the assessment of the environmental impacts of development, which are in turn a fundamental aspect of the environmental laws in place in each Australian jurisdiction. Yet it would be a mistake to leap from the environmentally favourable results in the Hazelwood and Anvil Hill cases to a general conclusion that climate change litigation will succeed where government regulatory efforts have apparently failed. Litigation for an environmental cause is a strategy with inherent drawbacks and difficulties that include its expense, the need to identify appropriate test cases, and persuading judges of the validity of “climate friendly” interpretations of environmental legislation that will often be deeply unpopular with government and industry.103 The outcome of the Wildlife Whitsunday case is salutary in this regard, demonstrating the limits of particular EIA legislation to support a detailed consideration of climate change impacts in the face of judicial scepticism. Climate change litigation in Australia is thus unlikely to do away with the need for strong regulatory action to address GHG emissions. The Commonwealth government would seem best suited to introduce such regulation, having the necessary legislative powers, funds and coordinating role to make the most effective contribution to management of an integrated environmental problem like climate change. Indeed, following the High Court’s recent broad interpretation of the Commonwealth corporations’ power in the Work Choices case,104 any remaining doubts as to the ability of the Commonwealth to legislate comprehensively in areas once the domain of States would seem to have been set to rest.105 Calling for national leadership on the climate change issue may seem, to some, to be a “pie in the sky” solution given the current federal government’s entrenched opposition to ratification of the Kyoto Protocol and its preference for voluntary, incentives-based approaches to managing GHG emissions. Nonetheless, if litigation offers a silver lining to the climate change cloud it lies in its ability to motivate governments and business to act more proactively on the GHG emissions issue. For business in particular, the risk of climate change litigation may be thought too great to chance in an atmosphere where corporate social responsibility and attention to the “triple 102

See eg, Osofsky HM, “The Geography of Climate Change Litigation: Implications for Transnational Regulatory Governance” (2005) 83 Wash U L Rev 1789.

103

See eg, Editorial, “Pie-in-the-Sky on Coal”, The Australian (30 November 2006) p 11.

104

New South Wales v Commonwealth; Western Australia v Commonwealth; South Australia v Commonwealth; Queensland v Commonwealth; Australian Workers’ Union v Commonwealth; Unions NSW v Commonwealth; Victoria v Commonwealth (2006) 81 ALJR 34; [2006] HCA 52 at [50].

105

Constitutional experts, such as George Williams, have commented that the decision represents a “significant shift in power” that leaves the states “very vulnerable”: Dick T, O’Malley N and Garnaut J, “The Day True Power Went to Canberra”, The Sydney Morning Herald (15 November 2006) p 1. See also Kirby J’s dissenting judgment in the case which argues that the majority’s ruling has the potential “radically to reduce the application of State laws in many fields”, amongst them town planning, energy distribution, environmental protection and land and water conservation: New South Wales v Commonwealth; Western Australia v Commonwealth; South Australia v Commonwealth; Queensland v Commonwealth; Australian Workers’ Union v Commonwealth; Unions NSW v Commonwealth; Victoria v Commonwealth (2006) 81 ALJR 34; [2006] HCA 52 at [539].

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bottom line” are bringing about a quiet revolution in company decision-making practices as they relate to the environment.106

106

Nagy and Gilsenan, n 9 at 20.

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105

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