Should we include a climate-change trigger in national environmental law?

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By Peter Burnett

In Australia this week, all eyes (well most of them) are on Canberra for the first sitting of Parliament since Labor came to power in May. The first order of business is the promised Climate Change Bill, to enshrine the government’s promised 43% target.

While public debate on the bill has focused on the target itself and the nature of a possible ‘ratcheting mechanism’ to raise the target over time, there’s also been quite a bit of attention given to something that definitely won’t be included: a ‘climate trigger’ for environmental approval of large projects such as mines and dams.

Let me explain.

Triggering the EPBC Act

For constitutional reasons, our main national environmental law, the Environment Protection and Biodiversity Conservation Act 1999 (EPBC Act), is based on a set of ‘triggers’. These are formally known as ‘matters of national environmental significance’. The triggers cover various things you’d expect to be of national significance, such as impacts to World Heritage places and threatened species, but not the most obvious candidate of all, climate change.

The EPBC Act was drafted by the conservative Howard Coalition government in the late 1990s as part of an overhaul of national environmental law. This bold reform was an unlikely project for a conservative government, but came about for two reasons.

First, Howard had courted the environment movement quite successfully in the 1996 election campaign, largely by promising a large pot of money (the National Heritage Trust) in exchange for privatising the national phone company, Telstra. There was a sentiment at the time that perhaps conservatives could care for the environment as well as progressives, by investing in it.

Second, Howard’s environment minister, Senator Robert Hill, was not just a skilled political operator, but a genuine environmental reformer (though perhaps a flawed one — see below).

In particular, Hill demonstrated an ability to navigate obstacles in government where others would have foundered on the political rocks.

Kyoto and the climate trigger

Despite Hill’s commitment to reforming environmental law he also led the Howard Government’s negotiating team at Kyoto, securing the notorious ‘Australia clause’, under which Australia was allowed to increase its emissions to 108% of 1990 levels, despite other rich countries being locked-into cuts.

Beyond this, also notoriously, Howard refused to ratify the Kyoto Protocol, despite Australia’s easy ride through with the Australia clause.

Howard had a real thing about action on climate change. Despite Australia’s easy ride, early on his major concern seemed to be that Australia might be taken for a ride, by being required to do more than its fair share of the ‘heavy lifting’. Later on, he seemed determined to hold out on ratification as a way of supporting the USA under George W Bush.

You can see why, despite being the most obvious candidate, climate was never going to be a trigger in the EPBC Act. Unfortunately for the government though, it had to do a deal with a minor party, the Australian Democrats, to get the EPBC Bill through the Senate.

Howard agreed to more than 400 Democrat amendments to secure passage, but wouldn’t include a climate trigger.

A climate trigger discussion paper

The government did however agree to consult about including a climate trigger by later amendment, and released a discussion paper on the topic at the end of 1999.

An obvious issue was the emissions threshold for the trigger. The lowest number discussed was 500,000 tonnes CO2-equivalent. This was said to capture 92% of emissions from new major facilities, such as power stations and aluminium smelters, then under construction.

Interestingly, today’s ‘safeguard mechanism’, enacted by the Abbott Government to support its Emissions Reduction Fund and requiring large emitters (currently 215 of them) to meet an individually-tailored emissions cap, has a threshold of 100,000 tonnes.

Even more interestingly, while the discussion paper canvassed some of the more technical issues associated with defining the trigger in some detail, such as whether emission estimates would be based on average or peak capacity, it completely avoided the significant issue of what kinds of requirements might be imposed on a new facility once the trigger was, well, triggered.

The discussion paper said this was because approval decisions had to be consistent with the principles of ecologically sustainable development and should take account of issues such as jobs and international competitiveness. (Had they addressed the issue, I think the most likely approach at the time would have been to require that the proponent use ‘best available low-emission technology at reasonable cost’.)

Then there was the issue of carbon emissions from land clearing. The discussion paper simply excluded this topic; the implication was that land clearing was not a ‘project’.

I think this explanation and exclusion are tendentious. I suspect that the government never intended to introduce a trigger, but simply to go through the motions. In that context, any content beyond the barest minimum could expose the government to enemy political fire, for no gain (to them).

Back to the future

So, there we have it. No climate trigger. But should we have one now?

Labor is promising to re-orient the safeguard mechanism, under which emissions from the major facilities are capped.

The previous government kept resetting the caps, giving emitters an easy ride in meeting them. Now, the government will lower the caps progressively, as the theory says such a scheme should, forcing facilities to lower emissions or buy emissions credits.

Under that scenario, it doesn’t make much sense to apply a climate trigger to major facilities — anyone building such a facility already knows that its emissions will be subject to a reducing cap.

Even if a climate trigger applied, what conditions could the environment minister impose that would achieve more than keeping emissions under a reducing cap? (In theory, a trigger would allow the minister to block a project entirely, this seems unlikely).

What about land-clearing?

Then there’s land clearing. Although the significance of land clearing is usually seen in terms of habitat loss, it is also significant for carbon emissions where the vegetation concerned is of high quality (low quality regrowth areas are marginal in terms of carbon emissions).

At present there is no land clearing trigger in the EPBC Act, even for biodiversity-related reasons. And, unlike industrial facilities, there are no climate-related laws applying to land clearing.

Thus, above a certain extent and quality, there is a case for a climate trigger relating to land clearing.

However, states and territories all regulate land clearing for other reasons. Due to the complexities of doubling-up on land regulation, it might be more effective to combine a trigger with a national standard for land clearing and to switch off the trigger in states where clearing laws meet the standard.

And in the end?

At the end of the day, given Labor’s plans for the safeguard mechanism, the case for a ‘climate trigger’ is particular rather than general. It would make sense for the clearing of significant areas of land containing old-growth and other high quality vegetation, but that’s about all.

In any event, a climate trigger is off the agenda as an amendment to the Climate Change Bill, given climate minister Chris Bowen’s statement that the government would rather pursue its climate target on a non-statutory basis, than have policy change forced on it by legislative amendment.

But there will be a second opportunity, when environment minister Tanya Plibersek delivers on her commitment to introduce major reforms to the EPBC Act in 2023.

Then, unlike now, the government won’t have the clean option of simply walking away, because so much of the non-climate environmental reform agenda hangs off that reform.

Banner image by Yazril Tri Mulyana from Pixabay