Month: January 2022

50 shades of green – what shade of sustainability do you practice?

By David Salt

What does the idea of ‘sustainability’ mean to you?

Most people, including me, would like to believe they are being sustainable, that they are passing on a meaningful future to their children; and you can only do this if you’re being sustainable.

At the same time, most people are a bit cynical about the use and abuse of the term ‘sustainable’ as it seems to appear in the sales pitch for every good and service we use. Governments claim it’s a criterion for every policy they develop; businesses build it into every mission statement they produce and every NGO currently operating cites it as one of their goals.

It’s a buzzword; it’s greenwash; it’s ubiquitous, amorphous and infinitely malleable. Depending on your political persuasion, cultural background, religion or socio-economic status, sustainability is ‘one person’s meat or another person’s poison’.

And yet, for all its ubiquity, the idea of sustainability is one that most people only have a hazy notion about. For most people, it relates to being kind to the environment, responsible for our behavior, and maybe fair with the choices we make.

The truth is, there is no universally agreed objective definition of what the idea means; and that’s despite whole journals, libraries and uni departments being devoted to it. However, if you’re involved in any area of policy, management or science relating to sustainability – or if you claim to be living a sustainable life – then you owe it to yourself to at least have given the idea some thought and be prepared to defend your own notion of what it means.

The emergence of ‘sustainability’

The idea of ‘sustainability’ was first given international prominence at the United Nations Conference on the Human Environment (also known as the Stockholm Conference) in 1972. It’s 50 years old.

Over the following decade the idea was refined and developed into a process that governments might work with. This process was called sustainable development, and its principles were set out in report, commissioned by the UN, called Our Common Future. This was released in 1987.

The report defined a sustainable society as one that “meets the needs of the present without compromising the ability of future generations to meet their own needs”.

Over the quarter of a century that has followed the publication of Our Common Future, ideas on what ‘sustainability’ means have been explored, dissected, contested, deconstructed, rebuilt, trashed and/or reified. (For more detail on the major milestones along this road, see A (very) short history of sustainability.)

Broad or narrow? Weak or strong?

Some scholars, particularly in the early days, insisted that discussions on sustainability needed a tight focus on long-term ecological sustainability. What was it about the Earth system that sustains us? What is it that we can’t afford to ignore? Birds and bees, water and nutrient cycling, and photosynthesising plants are all essential for humans to exist. Should these things lie at the centre of any plan for sustainability? This narrower focus might be termed ‘environmental sustainability’.

Our Common Future coupled sustainability with the notion of development – sustainable development. The publication identified a much broader spectrum of issues to be covered by the concept, including political, social, economic, and cultural issues. This approach is sometimes referred to as ‘broad sustainability’.

And if the cloak of sustainability enfolds more than just the natural world, is it okay to substitute nature (natural capital) with human and social capital? Does it matter if natural vegetation cover is lost if we can replace it with a water treatment plant (which would replace the water filtering properties of natural vegetation)? Those that subscribed to this view, including ‘techno-optimists’, are described as supporting ‘weak’ sustainability.

Those that didn’t, including ‘deep ecologists’, believe that natural capital and other types of capital are complementary, but not interchangeable. You don’t replace a species lost with a machine that does the same function; these are not acceptable trade offs.

Let’s get personal

All this merely touches the surface of the ongoing debate on sustainability. What I hope to provoke here is a little introspection: What does sustainability mean to you? And What does sustainability mean for you?

For example, speaking for me:

I believe that ‘sustainability’ is a good thing. We should all be sustainable. It’d be a better world if we all were.

And what is it that I think ‘sustainability’ is? I believe it has something to do with meeting the needs of today without trashing the needs of tomorrow; pretty much the ‘standard’ take on it.

Am I sustainable?

I recycle plastic, have solar panels and solar hot water, have long been involved in environmental education, use rainwater in the garden where I can, minimise the use of chemicals in the garden, drive on old car, compost, encourage my family to minimise our resource use, have been active in habitat restoration, grow food, work with recycled building materials, support worthy causes and, where possible, try to be a responsible consumer.

I’m not the best or the worst when it comes to ‘being sustainable’. But am I being sustainable?

While I haven’t done embodied energy and water accounting on my household and lifestyle, I am confident I am using way more than I am generating. At the scale of ‘me’, I am not sustainable.

And I know that my country, Australia, has the highest per capita greenhouse gas emissions of any nation, and the world is rushing towards a climate apocalypse and that my government is in total denial about this (we also lead the world in species extinctions). So, at the scale of my country, I am not sustainable.

And the world is currently suffering climate event after climate event. Australia is seeing its coral reefs, forests and mangrove systems wither under climate extremes, while the planet is careering past multiple planetary thresholds. On top of this, the world’s richest people are getting obscenely rich while the world’s poorest are drowning as the seas rise. At the scale of my planet, I am not sustainable.

Am I kidding myself?

Given this, do I really think I’m moving towards sustainability?

If I do, it must be a form of broad and weak sustainability? I must think that the natural capital being remorselessly lost at an accelerating rate around me today will be replaced by human capital (smart technology) and social capital (smart human organisation) at some time in the future. And I must believe it will happen before irreversible ecological decline makes our planet unliveable (for humans).

And, if I truly believe this, I must be an extremely optimistic techno-idealogue (who doesn’t read the news and is unaware of the negative environmental trends around me). Unfortunately, I am not these things but I still believe ‘sustainability’ is an important idea that we all should subscribe to. There’s more than a little cognitive dissonance here.

Of course, I’m not completely responsible for my country’s failings on sustainability. I didn’t vote for the bastards currently in office. And how responsible am I for the world’s efforts? Which introduces two other shades of sustainability – bottom up and top down; think global, act local; look after my own backyard but try and influence the backyards around me; while trying to get our political representatives to implement sustainable policy (at national and international scales).

All of which only hints at the incredible complexity embodied in the idea of sustainability.

So, what’s your idea of sustainability?

How’s it going for you so far?

Banner image: geralt @ Pixabay

Does a ‘duty of care’ to future children make any difference to environmental approvals?

By Peter Burnett

Do you think our political leaders, our representatives, owe the children of the future, our children, a duty of care? I think most people would.

But what does that actually mean in practice?

Should a duty of care apply if the political leader is wearing a second hat as a regulator? What if the law the regulator is applying says nothing about a duty of care?

Our legal system is grappling with this issue right now.

Last year, in a case known as Sharma v Minister for the Environment, the Federal Court of Australia found that the environment minister, in her statutory capacity as a regulator under the Environment Protection and Biodiversity Conservation Act 1999 (EPBC Act), owed Australian children a common law (ie, non-statutory) duty of care not to injure them by approving a development that would exacerbate climate change.

At the time, the minister was considering making a statutory decision to approve an extension to the Vickery coal mine in NSW.

Is it okay to develop a coal mine if it results in increased emissions?

As I wrote in an earlier blog, the implication of the case for decisions under the EPBC Act (and other regulatory laws) was that regulators, when considering whether to approve a development, must now turn their mind to an additional mandatory consideration, the likelihood of harm, at least to children, if not others.

In that discussion, I argued that the decision was legally incorrect and would likely be overturned on appeal. In fact, an appeal has been heard, though not yet decided.

In the meantime, the original decision stands and must be applied — ie, regulators must consider the likelihood of future harm to children from a development.

What does this mean in practice? Well, documents released recently under freedom of information (FoI) laws have revealed how the environment minister was advised by her department concerning this new-found duty of care.

The documents concern another coal mine extension, this time by Glencore of its Mangoola mine in the NSW Hunter Valley.

For completeness, the Court also found that human safety is a mandatory relevant consideration under the EPBC Act, including when affected by the emission of greenhouse gases (GHG).

Rather than this being part of a duty of care, the Court said this implication was found in the ‘subject-matter, scope and purpose’ of the EPBC Act.

As a result, if a proposed development in fact posed a ‘real risk’ to human safety of Australians (not just children) the Minister should give ‘at least elevated weight’ to the need to avoid that risk.

This part of the decision may be less vulnerable on appeal because it results from the Court’s interpretation of the Act, rather than the (more radical) application of a duty of care from outside the Act.

Requirements on Minister: EPBC Act plus duty of care

The EPBC Act contains a fairly standard process for granting environmental approvals, based on considering an environmental impact assessment (EIA) and applying various statutory criteria.

Although the EPBC Act does not extend directly to climate impacts, it does cover indirect impacts on things that it does proect, eg threatened species. And GHG can have an indirect impact on threatened species, by changing the climate.

So, it is common under the EPBC Act to consider climate impacts from projects that are large GHG emitters, like coal mines.

Consistent with the Sharma decision, when environment minister Sussan Ley considered the Mangoola mine, she considered, in addition to the usual statutory matters, her duty of care to avoid causing harm to Australian children, as a result of GHG emissions from both the mine itself (scope 1 and 2) and the coal it would produce (scope 3).

Minister’s decision on climate impacts of mine

The minister decided that, even having regard both to her additional duty of care to children and the implied statutory duty to consider human safety, it was not necessary to refuse the mine extension, or to impose additional climate-related conditions.

While these duties might have been new, it turned out that considering those duties simply took the minister down the same path of reasoning that she and her predecessors had used before when considering indirect climate impacts.

This reasoning has been validated by earlier court decisions and it goes like this:

First, if the mine didn’t go ahead, potential customers would simply burn coal from other mines, with no overall difference for the climate (the market substitution argument).

Second, if this is wrong, and the mine does increase GHG emissions, national and international policies, such as ‘nationally determined contributions’ under the Paris Agreement, would prevent overall emission increases, because countries have agreed to phase coal down (the climate policy argument).

And Ley added a new argument: the coal phase down would be reinforced by private company commitments: mine proponent Glencore had itself adopted a target of reducing total global emissions from its operations (scope 1, 2 and 3) by 50% by 2035, reducing to net-zero by 2050.

Just more boxes to tick? Is that it?

So, at the end of the day, even considering a new duty to children and giving ‘elevated’ weight to human safety consistent with the Sharma decision, the minister ended up at the same place as earlier decisions.

The mine could go ahead because it would not increase emissions, or, alternatively, any increase would be ‘extremely small’.

Plus, of course, there were social and economic benefits that made approval, on balance, ‘appropriate’.

It turned out that the duty of care to children and human safety were just two more boxes to tick.

So, does it matter then whether the government wins or loses the Sharma appeal if the result is the same?

You might think not, but I can however see two reasons why it matters.

It does matter

First, Sharma found the environment minister had a duty of care. While this duty might not change environmental outcomes now, if the duty is upheld it will invite compensation claims in future decades, based on harm generated by approval decisions taken now.

This creates risks for government.

The second implication is environmental and political. If the duty of care to children remains, this will confirm a higher profile for the climate implications of development decisions. I think this increases the chances that someone will take the ‘market substitution’ and ‘climate policy’ arguments to the High Court.

I know I told you that these arguments had already been accepted in earlier Federal Court decisions. But I think there are grounds for challenging this.

Why? I’ll tell you in another blog, but a High Court appeal would put climate change issues before the highest court in the land. And that’s not something to be sneezed at.

The implications of this? If the children win again in court, I think the government will move in Parliament to legislate these legal and political risks away.

So the children will probably lose even if they win.

Banner image: On the one hand coal gives us ‘cheap’ energy. On the other, it emits a lot of GHG likely to harm future generations of children. (Image by Pavlofox @ Pixabay).