Interesting directions

Associate Professor at Melbourne University Jacqueline Peel has just set up a blog outlining various environmental case law, including issues concerning climate change. It can be found here and is well worth keeping an eye on it.

What is interesting is what she notes about climate change case law.  Peel suggests that no cases have so far stopped a major project based on the emission it produces, though has begun to define some of the basic concepts of climate change litigation.

Note the lack of a greenhouse trigger in the EPBC Act earlier mentioned on this blog and the potential it could be recommended by an independent review of the act. Other case law such as this shows that there have been some tests of the Act in state courts which can stop or amend large projects even if a government decides not to act. If a greenhouse trigger is implemented could it create a legal precedent for other such litigation, or stop projects based on emissions through the courts, even if the Minsiter decides not to act?

What is also interesting is how climate law could develop with an implementation of an emissions trading scheme, and the potential new litigation avenues that opens. Questions certainly to be thought about when the draft text of the ETS legislation is released in Febuary.

Questions indeed. Watch this space.

 

Sunday digestibles 2 of 2

I thought as one come to the end of the year and every draws up there big moment of 2008 lists I might look ahead to next year with what I know and try to pre-empt five of the government announcements and political movements 2011 State of the Environment Committee due January 2009. Who is on the committee is very likely to direct its priorities.

1. Look for some money for scientific research in Antarctic. Yes, yes, I know it was in the Hollowmen episode but it has been suggested to me by a well sourced person that some money will be heading south for climate research.

2. The independent review of the Environment Protection and Biodiversity Conservation Act (which governs Environment Minister Peter Garrett’s power of review on big protects) which was meant to report back in 2010, will deliver its recommendations by the end of next year.

3. The Senate debate over the Emissions Trading Scheme will be the longest and most detailed since the GST. The coalition will push an amendment for a 2012 start-up-date but will not seek to block the ETS overall. The burning question is, will the Nationals cross the floor and split with the Liberals. Will the Greens vote against the bill? The ruminations coming deep from within both parties is yes.

4. The Federal Government could walk away from a nuclear waster dump in the Northern Territory and will definitely repeal the laws giving the power to do so. I have no inside information into what will be done (they have to act before 2012 when spent rods from Lucas Heights returns from overseas were they have been refined) but there is a strain of thought that suggests the Federal Government will make a deal with the WA state government for a dump location.

5. Certainly keep your eye on submission for members of the State of the Environment 2011 Committee, which are due January 2009. The members of the committee will certainly set the direction for its report.

 

Garrett ”considers” greenhouse trigger

A GREENHOUSE trigger, which could stop or amend key infrastructure projects if they emit to much carbon, is being considered by the Federal Environment Minister. 

A trigger would mean Peter Garrett, who announced a review of his powers in late October, would expand his ability to place environmental conditions on projects such as the north-south pipeline and Tasmanian pulp mill.

Mr Garrett said yesterday he would first wait for the results of a review into the Environment Protection and Biodiversity Conservation (EPBC) Act 1999, headed by ANU Chancellor Allan Hawke, and the compliance provisions in the emission trading scheme (ETS) before seeking to gain the trigger power.

“The upcoming carbon pollution reduction scheme white paper (released on Monday) will outline the Government’s framework for action on climate change and the role, scope and operation of a climate change trigger in the EPBC Act would need to be considered in light of the final design of that scheme,” Mr Garrett said. 

An insider in the EPBC this week said they would be very keen to see a greenhouse trigger included in the minister’s powers, but wouldn’t pre-empt submissions to the review due next week.

The panel is due to submit its final recommendation in the second half of next year.

Last week Victoria’s Sustainability Commissioner Dr Ian McPhail called for a “climate change test” to be applied to all cabinet decisions on policy, infrastructure and spending in his “State of the Environment Report.”

An environment law expert at ANU, Andrew Macintosh, said  a greenhouse trigger would also be useful in reigning in carbon emissions from industries given exemptions from the ETS.

“But the problem with any environmental law is it requires political will to carry out its power which is unlikely to happen,” Mr Macintosh said.

“Rather than a greenhouse trigger it is far more important the emissions trading system has strong financial penalties and criminal powers against companies that go over their annual carbon permits.”

Mr Macintosh said if strong financial penalties are not included in the carbon trading market major companies could consider fines “as a cost of doing business,” rather than keeping to permits. 

“As anybody familiar with environment law know there is some really strong legislation out there, but if there isn’t the financial pressure behind it tends to be flouted,” he said. 

Labor insiders yesterday confirmed news reports that details of the ETS have already been signed off on by caucus, including the 2020 target range and an “extensive” range of concessions to be given to high polluting trade exposed industries.

It is expected the Federal Government will announce a 2020 target reduction range of 5-15% of 2000 levels, depending on the outcome on an international agreement. 

The final decision will be signed off by the ”core three’ Climate Change Minister Penny Wong, Prime Minister Kevin Rudd and Treasurer Wayne Swan. 

NOTE: The original version of this story appeared here, albeit in its tiny format. For more information about the history of a greenhouse trigger I recommend Andrew Macintosh’s chapter in Climate Law in Australia (ed. Tim Bonyhady and Peter Christoff, Federation Press 2007) titled ”A greenhouse trigger: Where did it go and what of its future?”