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.

 

Quick Sunday digestibles 1 of 2

As you can imagine Sunday is a quiet day in Canberra town, and the happening around Parliament House are even quieter. Each Sunday I will endeavour to post one or two digestibles, brief reads with a link or two so as not to consume to much time on what should be a day of rest for all.

The first digestible this week are a couple of things that have come across my desk that are worth a look at.

Firstly an ACF document, which last week hired international valuer assessors Innovest to determine the monetary value attached to the free carbon permits to trade exposed high carbon emitting industries (assuming a $25 carbon price).

I have attached the document for all and sundry to read and make what they will of it, it can be found through this link.

innovest-recipients-of-cprs-assistance-white-paper-update-dec08

Included details of the $3.9 billion package for the coal industry as they estimate it, and exactly how much money will go to what coal fire plants, notably close to a billion over five years to Hazlewood in Victoria. 

Secondly for your consideration a working paper put out before the release of the White Paper by Andrew Macintosh from ANU’s Centre for Climate Law and Policy (who you will remember was last on this blog in a story I wrote about a Federal Greenhouse Trigger).

The working paper looks at the global equity issues involved in the four emissions targets modelled by Treasury this year. In short it argues a 5% cut to Australian emissions (which we have now seen from the Federal Government) and a proposed 10% cut from the Garnaut review, will place an undue burden on developing nations to cut emissions.

Document can be find through this link: wp5-are-the-treasury-and-garnaut-scenarios-fair

 

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?”