Five transformations: Breathing life into Australia’s national environmental law

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By Peter Burnett

I often write in these blogs about Australia’s national environmental law, the Environment Protection and Biodiversity Conservation Act 1999 (EPBC Act). My excuse is that the EPBC Act is the most important environmental law in the country, but it doesn’t work. This is something we all should be worried about, and, as you’ve heard before, this is a piece of legislation that badly needs reform. Australia’s new federal government is making hopeful sounds here but, again as you’ve heard before, talk is cheap.

The job of reform is big, complex and challenging. However, if you reflect on the basic aims of what the EPBC Act was established to achieve, I think it’s possible to envisage a simple pathway forward. And that pathway involves five basic transformations on how the Act currently performs.

The story so far …

The new Australian government has promised to overhaul the EPBC Act and to establish a independent federal Environmental Protection Agency (EPA).

In pursuit of this reform, environment minister Tanya Plibersek has promised to respond to Professor Graeme Samuel’s 2020 review of the Act by the end of this year and to table proposed new laws in 2023.

Plibersek has hinted strongly that the government will follow Samuel’s recommendations, so that provides a clear starting point for discussion while we wait for the detail of the government’s plan.

From great green hope to great green flop

Looking back over the history of the EPBC Act — three years in development and 22 years in operation — it is clear that few of the high hopes held for the Act have been realised. While it expanded federal government involvement in environmental regulation significantly, the evidence suggests that the benefits of this have been marginal. Worse, when we look at the whole picture, the limited benefits achieved are partly offset by the resulting regulatory duplication.

The fundamental reason for this failure to deliver is not poor regulatory design, but gross under-implementation, mostly the result of under-resourcing and a lack of political will.

The EPBC Act can be seen as a three-legged stool on which most of one leg, dealing with environmental planning, is largely missing. (The other two legs protect the so-called ‘matters of national environmental significance’ and provide for environmental impact assessment.)

Most of the plans envisaged by the Act, and essential to its operational, are either vague in content, sitting unimplemented on the shelf, or simply not done.

Meanwhile, as Professor Samuel put it in his review, ‘Australia’s natural environment and iconic places are in an overall state of decline and are under increasing threat.’

What should we do about it?

The EPBC Act is highly complex. It is over 1,000 pages long and there are hundreds of pages of supporting regulations and determinations.

And the Act in turn sits within a complex set of roles, responsibilities, laws and agreements that govern the environment in Australia’s federal system.

Understanding the system is no mean thing, let alone fixing it. So, where to start?

When I went through Professor Samuel’s 38 recommendations, it struck me that he was calling for a complete transformation, in fact five of them. These are:

First, to change from prescriptive regulatory processes to setting and pursuing national environmental outcomes

  • the EPBC Act (and its state counterparts) focus on following due process, a ‘box ticking’ exercise that requires consideration of various factors such as biodiversity loss and the precautionary principle but, at the end of the day, allows governments to decide pretty much anything they like

Second, to shift from Indigenous tokenism to full use of Indigenous knowledge and a full recognition of Indigenous values

  • Samuel was highly critical of the tokenism of current arrangements, while recent events, especially the Juukan Gorge disaster in 2020, have generated considerable impetus for change

Third, to simplify regulatory processes and harmonise environmental processes and outcomes between federal and state jurisdictions

  • this isn’t just about ‘streamlining’ which has become almost a cliché, but a call for harmonisation of processes and outcomes across the nation

Fourth, to lay new foundations for quality decision-making

  • many of the foundations of the current system are either significantly under-done (eg environmental information, compliance and enforcement) or not done at all (eg bioregional planning across the continent)

Fifth, to restore trust in decision-making

  • damningly, Samuel found that none of the key stakeholder groups — business, environment groups and the wider community — trusted the current arrangements.

The reform process going forward

I’ll take a closer look at each transformation in a series of blogs over the next two months, in the lead up to Tanya Plibersek’s response to Samuel.

The reform debate will last right through 2023 and into 2024, as, once the response is on the table, there’s a large reform Bill to draft and an extended Parliamentary process to navigate as Plibersek seeks to shepherd her reforms through a Senate in which the balance of power, for the first time, lies with a cross-bench that is tinged a fairly dark shade of green.

Among other things, she will have to deal with very strong pressure to extend the EPBC Act by including a ‘climate trigger’.

My aim in the lead-up to that debate is to offer some points of focus in a discussion that always risks getting lost in its own complexity. (If you prefer to watch rather than read, I presented these transformations in a Parliamentary Library Seminar on 30 August.)

The problem is enormous and policy ambition needs to be high — bring on the reform!

Banner image: The job of reform is big, complex and challenging. However, it’s possible to envisage a simple pathway forward involving five basic transformations. (Image by David Salt)

Down into the weeds again – the new government announces a return to bioregional planning

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By Peter Burnett

In a recent speech at the National Landcare Conference, still-honeymooning federal environment minister Tanya Plibersek announced what she called the ‘third arm’ of the government’s environmental agenda, regional planning.

(The first two arms, by the way, are an overhaul of national environmental law following the Samuel Review (2020) and setting up a federal Environment Protection Agency.)

A little history

More correctly, Plibersek was announcing a return to regional planning. Federal and state governments first signed up to bioregional planning in 1996 as a key action under the National Strategy for the Conservation of Australia’s Biological Diversity.

This National Strategy was our first attempt to meet our commitment under the Convention on Biological Diversity 1992 that each country should have such a strategy.

In 1995, in the run-up to adopting the strategy, then-environment minister Senator John Faulkner convened a national conference on bioregional planning.

But with the conference done and the National Strategy signed-off, momentum dissipated. This was no doubt due to the change of government that followed.

Although the new Howard government remained committed to bioregional planning, and in fact legislated for it as part of its big and shiny new national environmental law, the Environment Protection and Biodiversity Conservation (EPBC) Act, there was a problem.

The EPBC Act was seriously under-funded. With available funds sucked up by the day-to-day business of project-based environmental assessment and approvals, there was simply no money left for bioregional planning.

Eventually, in 2012, a later government found enough money to prepare bioregional plans for four of Australia’s marine bioregions. But there have never been plans for Australia’s 89 terrestrial bioregions.

What’s on the table this time?

Fast-forward to the present.

Following a recommendation for regional planning in the Samuel Review (NB. no longer bioregional planning, although the name change is not that significant) the Morrison government put its toe in the water by announcing $2.7m in the 2021 federal Budget for a pilot terrestrial bioregional plan.

By the time Morrison lost government in May 2022, this pilot program had not translated into on-ground action. Instead, Morrison had put more money on the table in the 2022 Budget (tabled in the lead up to the May election).

This time the government announced some $63 million for up to ten regional plans. However, this Budget didn’t pass the Parliament before the election of the Albanese government and so we must wait until next month (October) to see whether Treasurer Jim Chalmers keeps this measure in his replacement 2022 Budget.

In the meantime, Plibersek has announced the government’s commitment to regional planning and laid down some markers. She acknowledges that the idea is not new and says she will build on good work already done.

She says regional plans will improve federal environment protection by providing insight into cumulative impacts and enabling threats to threatened species to be addressed more effectively.

Plibersek wants to cooperate with states and territories and she wants the plans to be integrated across land uses, programs and tenures. She also wants the plans to improve resilience to climate change.

And, significantly, she wants to start now, so that ‘regional planning will be well underway by the time we pass our improved environmental laws next year’.

It’s complicated

This is an ambitious agenda, particularly from the low base of a fragmented environmental information base and a depleted environment department.

What challenges will Plibersek face? To borrow the title of one of my favourite Meryl Streep movies, ‘It’s Complicated’.

Plibersek needs to partner with state governments, who traditionally resist federal government involvement in land management, which they see as both their backyard and their bread and butter (excuse the mixed metaphors).

She will need to offer incentives, and in this context ‘better environmental outcomes’ doesn’t cut it. If I were a state I’d be after money for environmental restoration, by the truckload.

Assuming one or more partner governments step forward, regional planning would need to integrate with a myriad of other plans which, depending on location, could include metropolitan plans and strategies, state environmental plans and policies, catchment management plans, town plans, local environment plans and so on.

Then there are other federal plans to fit in with, including the Murray Darling Basin Plan and Regional Forest Agreements.

Once the government gets into the planning itself, it will need a full suite of supporting policies. What are the planning objectives? Do they include creating reserves for areas of high environmental value, such as critical habitat? Should zoning for development be done on the basis of maintaining ecological function? Would development be allowed in areas containing significant environmental values and if so, would an environmental-offset policies such as ‘no net loss’ apply?

Then there’s the need for appropriate governance. There’s no point in doing these plans on a one-off basis. They would need to be revised regularly, say every five years. Climate adaptation will make this even more complex.

Finally, how would public consultation be undertaken and who would undertake it?

Climb lower mountains

I could go on but I’m running out of space. I think there’s a real risk here of taking up mountain climbing and choosing Mt Everest as one’s first summit.

Given the minister’s determination to move on this front ahead of her major reform package next year, the risks of this could be avoided by treating the early regional plans as experiments — by confining the exercise to two or three regions and focusing on skill acquisition and capacity-building rather than aiming to take a full suite of plans through to legal adoption and operational use.

I know it’s hard in a political context, but with something this ambitious I think it’s important to allow for failure.

Rather than tackle Mt Everest straight up, a little practice in the foothills could be just the thing. That way, injuries from the inevitable falls will be minimal; and the whole process won’t be discarded when the going gets rough.

Banner image: Image by Joshua_Willson from Pixabay

Triggering the safeguard or safeguarding the trigger: Climate, large emitters and the EPBC Act

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By Peter Burnett

Last week’s debate in the Australian Parliament on the new government’s Climate Change Bill generated a surprising level of debate on a side issue, the possible inclusion of a ‘climate trigger’ in Australia’s most significant environmental law, the Environment Protection and Biodiversity Conservation Act 1999 (EPBC Act).

So much so that I made it the subject of my last blog, in which I argued that we mostly didn’t need a climate trigger, because it would double up on the ‘safeguard mechanism’ that sets individual baselines for major carbon-emitting facilities like steelworks, and then reduces that baseline over time.

The exception was for actions that would generate significant carbon emissions but weren’t ‘major facilities’, which mostly means major land-clearing.

I’ve changed my mind. In light of last week’s debate, I now think we should have both a climate trigger and a safeguard mechanism, on the proviso that they must dovetail with each other.

Let me explain. As the government is committed to the safeguard mechanism but somewhat skeptical about a climate trigger, I’ll start with the former.

Safeguard mechanism

We don’t yet have the full detail of what the government is proposing — it has promised to release a discussion paper towards the end of August. We do know, however, from statements by climate minister Chris Bowen and from Labour’s election policy, that the gist of the proposal is to keep the existing legal machinery while reducing facility emissions baselines progressively to net zero by 2050.

The safeguard mechanism will apply to the 215 existing major emitters, together with any new facilities emitting more than 100,000 tonnes CO2-e per annum.

Climate trigger

A climate trigger in the EPBC Act would prohibit developments likely to emit more than a certain volume of greenhouse gases per annum (lets say 100,000 tonnes), without first undertaking an environmental impact assessment (EIA) and obtaining a development approval from the environment minister. Such an approval might simply require the developer to use the best available emissions technology at the time of construction, with no follow-on requirements.

Alternatively, much like the safeguard mechanism, it could require reducing emissions from an initial baseline. It might even allow emissions credits to the traded with other such facilities, although this could be complicated in practice.

Dovetailing a safeguard with a trigger

If used together, these two mechanisms would be seeking to occupy much the same regulatory space. That’s why I argued that a climate trigger should be limited to actions that are not caught by the safeguard mechanism, such as land clearing.

However, there are some benefits that are better delivered by one or other of the two mechanisms.

For example, it seems that many projects underestimate their likely emissions by a significant amount. The rigour of the EIA process, including the opportunity for public scrutiny, will help ensure early and accurate estimates of emissions, before the final investment decision is made.

Another benefit of a climate trigger is that the environment minister would have the option of saying ‘no’ to a proposal for a high-emitting facility. Sometimes outright rejection is the right answer, even where the government has no objection to the activity itself, as with Tanya Plibersek’s proposed rejection of Clive Palmer’s latest Queensland coal mine shows.

On the other hand, the safeguard mechanism is designed to facilitate emissions trading, which is something not readily available under the more traditional regulatory mechanism of an EPBC approval.

This leads me to suggest that we can have the best of both, provided we ensure that the two mechanisms dovetail with each other and so avoid duplication.

It could work like this.

First, there would be a whole-of-government policy specifying that major emitters would be subject to a facility-specific emissions cap, set by reference to the lowest feasible emissions from existing technology. This cap would then decline to net zero by 2050.

Second, under the climate trigger, the environment minister would limit herself to assessing the likely emissions under best low-emission technology and setting that level as the initial cap. She would do so knowing that her approval of the project would, in turn, trigger the safeguard mechanism.

In the end, we would have the benefit of both mechanisms but no duplication — just a hand-off from one regulator to the other.

Objections anyone?

Some might object to this ‘dovetail’ approach on the basis that Professor Graeme Samuel recommended against a climate trigger in his review of the EPBC Act in 2020.

This objection lacks substance, for two reasons. First the review did not extend to policy matters such as a climate trigger, but was confined to the operation of the existing Act.

Second, while Professor Samuel did note that previous governments had chosen not to use a climate trigger, an outcome he said he agreed with, he left it at that, without making any arguments of substance against a climate trigger.

‘Both/and’, not ‘either/or’

This debate has quite some way to run —the government will not be responding to the Samuel review until late in 2022 and will not bring forward legislation to amend or replace the EPBC Act until 2023.

However, it is clear already that there will be a major episode of brinkmanship played out between the government and the Australian Greens over the climate trigger. The Greens are determined to push for ‘no new fossil fuel projects’ while the government are equally determined not to ban these projects unilaterally, on the ground that if we act alone, other countries will take up the slack as a suppliers of fossil fuels.

I hope my ‘both/and’ approach will prove useful as that debate plays out.

If we stick with the ‘either/or’ approach currently on the table, then we can expect high-stakes brinkmanship in the Senate next year, as the unstoppable force of the Greens’ passion for avoiding climate disaster collides with the immovable object of a government that knows that its future depends on occupying the centre lane on the political highway.

Banner image: Some want a ‘carbon trigger’ to stop the development of big emitting facilities. Others reckon a ‘safeguard mechanism’ is enough to constrain emissions. Maybe we can dovetail them and get the best of both. (Image by catazul from Pixabay)

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

Lies, damned lies and … Environmental Economics?

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A single LNG development in Australia could raise the global temperature by a tiny amount. Should it be allowed? What has the ‘economics of substitution’ got to do with it?

By Peter Burnett

People frustrated by weak government responses to the Paris Agreement (with its goal of limiting global warming to ‘well below’ 2° Celsius and ‘pursuing efforts’ to achieve 1.5°’), continue to look for ways to pressure governments for stronger action. One strategy is to challenge fossil fuel developments in court.

In the latest Australian challenge, the Australian Conservation Foundation (ACF) is challenging the federal approval given to Woodside Energy’s $16 billion Scarborough liquefied natural gas (LNG) project, off the Pilbara coast in Western Australia.

The formal basis for the challenge is, in essence, that Woodside obtained approval from the wrong federal regulator. Beyond that, it gets complicated. But it’s worth considering the details here because there are some very important principles at play.

Offshore Approvals and the Reef ‘carve-out’

Under Australia’s national environmental law, the Environment Protection and Biodiversity Conservation Act (EPBC Act) the federal environment minister would normally need to approve major developments such as Scarborough. However, in 2014, then environment minister Greg Hunt switched off this requirement for offshore projects by, in effect, accrediting the National Offshore Petroleum Safety and Environmental Management Authority (NOPSEMA) to approve projects in his stead.

The basis for NOPSEMA’s accreditation is that its regulatory regime was assessed as meeting the requirements of the EPBC Act. But the accreditation had several ‘carve-outs’, including for projects likely to have a significant impact on the Great Barrier Reef (GBR). In other words, if a major offshore project was likely to have an impact on the GBR, then NOPSEMA could not approve it and the task but would revert to the minister for the environment.

ACF’s claim is that even though Scarborough is off WA, its total greenhouse gas emissions, especially the ‘scope 3’ emissions generated when the gas is burnt by overseas customers, will be so large that as to have a significant impact on the GBR, even though it lies on the other side of the country.

If the ACF win the case, this would trigger the carve-out and bounce the project back to Australia’s new environment minister Tanya Plibersek for a fresh approval process, something that could take years (which could well scuttle the proposal).

Overheating

An analysis by Climate Analytics found that the total emissions from the Scarborough project were just under 1.4 billion tonnes, three times Australia’s annual emissions. ACF argues that this will result in 0.000394 degrees of additional global warming that will harm the Reef.

Woodside may counter that this is not a significant impact, even on the back of existing emissions-driven climate change.

Is an extra 4 x 10,000ths of a degree significant? I think there is a good argument that when the GBR is already at a critical point, every additional measurable impact on the whole reef is significant. Keep in mind this is a single development which, by itself, has the capacity to create a measurable global temperature increase (at a time when the world is already overheating).

A second likely defence argument will be that 1.4 billion tonnes is a gross figure, which would be offset significantly, if not completely, by various factors, including that gas from Scarborough, relatively low in carbon intensity, will displace other fossil fuels with significantly higher carbon intensity. This is the ‘market substitution’ argument.

We have been here before. In 2015, environment minister Greg Hunt used a similar argument in successfully defeating ACF’s challenge to Adani’s huge Carmichael coal mine in Queensland. The Federal Court upheld the minister’s decision at both first instance and on appeal.

So, if this argument has failed before, why run it again?

Will the market substitution argument prevail?

The basic argument may be the same, but the legal context is different, notwithstanding that both cases concern the application of the EPBC Act. In the Carmichael case, the relevant arguments revolved around the meaning of certain words in the Act, including ‘relevant impact’.

However, the appeal judges did say that their decision was made on the basis of the particular arguments which ACF had put; they dropped a hint that a different argument might have led to a different result. With so much at stake, this alone is enough to make one think it was worth having another go at the market substitution argument.

I don’t know what arguments ACF and their lawyers have in mind this time around, but the Scarborough case turns on some different legislative words, especially on what is a ‘significant’ impact, as distinct from the meaning of ‘impact’ itself.

In this slightly changed context, I think the economic substitution argument could be attacked from a different angle to the one used in Carmichael. It goes like this:

If the total emissions from the Scarborough project, including scope 3 emissions, are ‘likely to have a significant impact’ on the GBR, the current approval from NOPSEMA is invalid and Woodside must refer the project afresh to Minister Plibersek.

Notwithstanding that significance must be decided on the basis of a likely net, rather than gross emission increase; the likelihood is that each of the factors said to offset the gross impact does not, on balance, reduce the gross figure significantly, for the following reasons.

Even if gas from Scarborough has a much lower carbon content than the fuel currently consumed by Scarborough’s customers, it is not enough to find that this low carbon gas would displace high carbon fuel for these customers. Rather, to achieve a net reduction, the high carbon fuel must be displaced from the entire market — ie, it must be likely that it will be left in the ground.

This is because, prima facie, if supplies of a fossil fuel are displaced by an alternative, basic economics (the principle that markets ‘clear’) suggests that the displaced fuel will be sold elsewhere, even if this requires a price reduction. This is especially true given that the global market for fossil fuels continues to grow, despite a Covid19-induced dip.

Then there is the policy argument, that because many countries have adopted Paris targets such as ‘net zero by 2050’, emissions from Scarborough will be offset by reductions that are driven by these targets.

Even if countries delivered on such targets in full and the 1.5° goal were achieved, the reef would still be under significant threat and Scarborough would still exacerbate that threat.

However, countries are not on a global trajectory for anything like 1.5°, so the backdrop to Scarborough’s impact is closer to a 3° increase. Worse, many countries have a history of promising more than they deliver, in some cases adopting targets that are little more than aspirations.

Finally, there is the argument that technological change will drive major emissions reduction through the shift to renewables. This is valid in some countries, but, globally, the renewables shift is more than offset by global increases in demand: otherwise, global emissions would not continue to rise.

At the end of the day, unless there is evidence that gas from Scarborough is leading directly to high-carbon fuels being left in the ground, the supposed offsets look rather vague at best, leaving it likely that Scarborough’s net emissions will be similar to its gross emissions.

Where are we headed with this?

I wouldn’t like to predict where the Federal Court will land, but I do think it is possible that the market substitution argument, at least under the EPBC Act, will prove to make little difference.*

If I were the federal government I would deal with cases like this by moving quickly to legislate a comprehensive climate policy regime, not to mention a wider and contemporary environment protection regime as recommended by the 2020 Samuel Review.

I would be thinking that it is better for governments to get on the front foot rather than risk the unpredictable results that can follow when people are driven to litigation by their frustration with outdated or missing laws.

*I know the argument has been rejected by the Land and Environment Court in NSW in the Gloucester Resources case (Rocky Hill). But the Court there had the power to review the decision on the merits, which makes a big difference, for reasons too complicated to explain here.

Banner image: New research shows global warming of 1.5°C relative to pre-industrial levels will be catastrophic for almost all coral reefs – including those once thought of as refuges. Should any new fossil fuel developments be approved in such a time? (Image by Maria Beger)

A new government and a new environment minister – what now for Australian environmental policy?

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By Peter Burnett

So Australia has a new Labor government, having secured its win on the back of a ‘small target’ strategy that meant saying as little as possible about substantive policy (including on the environment).

That’s nice for them, but what now for the environment itself, especially since Labor’s intended environment minister, Terri Butler, lost her seat to a Green?

Before I get to that, a little more on the environmental implications of the election results.

Despite both major parties largely ignoring the environment (see my last blog), it was quite a ‘green’ election, with the Greens picking up three inner-city Brisbane seats in the lower house to add to their base of just one, while also jumping from nine to 12 seats in the Senate, a 33% increase.

More than this, there was a ‘Teal wave’ in the lower house, with five supposedly-safe ‘blue-ribbon’ Liberal Party seats falling to pro-climate-change ‘Teal’ Independents, joining Zali Steggall and several others to create a loose pro-climate cross-bench ginger group of up to nine.

Meanwhile, the Senate, with the addition of Canberra-based Independent David Pocock, now has a pro-climate majority.

Together these changes represent a major shift in favour of environmental action. (I’m going to assume that the pro-climate MPs will be generally pro-environment, although the degree to which this is ‘on the record’ varies between these MPs.)

While it’s hard to divine the reasons for this shift, I’ll go with conventional wisdom for the moment, which is that our recent horror years of drought, fire, smoke, storm and flood have brought climate change in particular into the homes many millions of Australians, literally.

Policy on the record

Until just before the election, Labor had well-developed policies on climate and water, but a small grab-bag of policies on the rest. At the last minute, Labor released a policy on environmental law reform, in the context of the previous government’s failure to table a full response to the 2020 Samuel Review of Australia’s national environmental law, the Environment Protection and Biodiversity Conservation (EPBC) Act.

Labor promised a full response to the Samuel Review, but in the meantime says they will establish an independent Environment Protection Agency. The agency will have two roles, one concerned with gathering and analysing environmental information and the other focused on compliance with environmental regulation and assurance that environmental standards are being met.

Labor highlights that, as well as being a custodian for national environmental information, the EPA’s data division will take a ‘leadership role’ in environmental accounting. This is a welcome and overdue development for a decision tool that remains largely unrecognised.

Policy off the record

While Labor lifted its game at the last minute with its environmental law reform policy, they can hardly be said to be environmental-policy high performers.

Their ‘43% by 2030’ climate target, while a significant advance on the ‘26 to 28%’ target of the outgoing government, is still much criticised as falling well short of what the Paris target of ‘well below 2 degrees’ requires.

And the environmental law reform commitment remains, for the most part, a commitment to come up with answers rather than an answer in itself. Once the new government starts work on fleshing its policy out, they will find that the job requires much more than just a streamlining of environmental regulation and some extra money for a resource-starved department.

The really big challenges are a lack of clarity and ambition about environmental outcomes and a major under-investment in environmental restoration.

While the Paris targets and our ‘Net Zero by 2050’ commitments provide a clear policy objective for climate policy, the same cannot be said for other areas, biodiversity in particular.

Australia (and almost everyone else) has failed to engage seriously with international targets based on halting and reversing biodiversity decline and our existing domestic biodiversity policies are either meaningless waffle or non-existent.

And our data is so poor that even the experts find it hard to tell us what a policy to halt biodiversity decline would look like on the ground.

Our history of policy failure to date suggests strongly that if reversing biodiversity decline is to be the goal, major institutional change and major investment in environmental restoration will be needed, far beyond anything seen to date.

And the new minister?

The good news is that Tanya Plibersek has been appointed environment minister in the new government. Announcing her appointment, the Prime Minister said Ms Plibersek had a long-term interest in the environment and would be ‘outstanding in that area … particularly in the area of the Murray Darling Basin Plan … it’s very important that that actually get delivered.’

Ms Plibersek is a very experienced and capable operator with previous ministerial experience. She is often spoken of as a future leader and has political heft.

The bad news is that her challenge is not simply to be a political success in the role, nor even to deliver real progress on the ground. The real challenge is to lay the foundations for ongoing success, against a backdrop in which the goal-posts, thanks to climate change, keep moving further away.

Tanya Plibersek will need all her considerable skill and experience, and a significant dollop of Parliamentary and stakeholder goodwill, if she is to have any prospect of meeting this daunting challenge.

We wish her luck.

Banner image: The Australian numbat, now listed as Endangered. Widespread clearing of their habitat and predation by feral animals have led to their steep decline. Arresting the collapse of our biodiversity is just of several major environmental challenges Australia’s new government needs to tackle. (Image by Seashalia Gibb from Pixabay)

Federal budget: $160 million for nature may deliver only pork and a fudge

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By Peter Burnett

Treasurer Josh Frydenberg’s cash-splash budget has a firm eye on the upcoming federal election. In the environment portfolio, two spending measures are worth scrutinising closely.

First is a A$100 million round of the Environment Restoration Fund – one of several grants programs awarded through ministerial discretion which has been found to favour marginal and at-risk electorates.

Second is $62 million for up to ten so-called “bioregional plans” in regions prioritised for development. Environment Minister Sussan Ley has presented the measure as environmental law reform, but I argue it’s a political play dressed as reform.

It’s been more than a year since Graeme Samuel’s independent review of Australia’s environment law confirmed nature on this continent is in deep trouble. It called for a comprehensive overhaul – not the politically motivated tinkering delivered on Tuesday night.

A big barrel of pork?

The Environment Restoration Fund gives money to community groups for activities such as protecting threatened and migratory species, addressing erosion and water quality, and cleaning up waste.

The first $100 million round was established before the 2019 election. In March 2020 it emerged in Senate Estimates that the vast majority had been pre-committed in election announcements. In other words, it was essentially a pork-barelling exercise.

The grants reportedly had no eligibility guidelines and were given largely to projects chosen and announced as campaign promises – and mostly in seats held or targeted by the Coalition.

Given this appalling precedent, the allocation of grants under the second round of the fund must be watched closely in the coming election campaign.

A tricky Senate bypass

Australia’s primary federal environment law is known as the Environmental Protection and Biodiversity Conservation (EPBC) Act.

Under provisions not used before, the need for EPBC Act approval of developments such as dams or mines can be switched off if the development complies with a so-called “bioregional plan”.

Bioregions are geographic areas that share landscape attributes, such as the semi-arid shrublands of the Pilbara.

In theory, bioregional plans deliver twin benefits. They remove the need for federal sign-off — a state approval will do the job – and so eliminate duplication. And national environmental interests are maintained, because state approvals must comply with the plans, which are backed by federal law.

But the government’s record strongly suggests it’s interested only in the first of these benefits.

Since the Samuel review was handed down, the government has largely sought only to remove so-called “green tape” – by streamlining environmental laws and reducing delays in project approvals.

Bills to advance these efforts have been stuck in the Senate. Now, the government has opted to fund bioregional plans which, as an existing mechanism, avoid Senate involvement.

Meanwhile, the government has barely acted on the myriad other problems Samuel identified in his review of the law, releasing only a detail-light “reform pathway”.

A rod for the government’s back?

Ironically, bioregional plans may create more problems for the government than they solves.

First, the surveys needed to prepare the plans are likely to spotlight the regional manifestations of broad environmental problems, such as biodiversity loss.

And the EPBC Act invites the environment minister to respond to such problems in the resulting plans. This implies spelling out new investments or protections – challenging for the government given its low policy ambition.

The federal government would also need to find state or territory governments willing to align themselves with its environmental politics, as well as its policy.

Of the two Coalition state governments, New South Wales’ is significantly more green than the Morrison government, while Tasmania is not home to a major development push.

Western Australia’s Labor government has been keen to work with Morrison on streamlining approvals, but fudging environmental protections is another thing altogether. And Labor governments, with a traditionally more eco-conscious voter base, are particularly vulnerable to criticism from environment groups.

The government may fudge the bioregional plans so they look good on paper, but don’t pose too many hurdles for development. Such a fudge may be necessary to fulfil Morrison’s obligations to the Liberals’ coalition partner, the Nationals.

Tuesday’s budget contained more than $21 billion for regional development such as dams, roads and mines – presumably their reward for the Nationals’ support of the government’s net-zero target.

Bioregional plans containing strict environmental protections could constrain or even strangle some of these developments.

But on the other hand, the government may be vulnerable to court challenges if it seeks to push through bioregional plans containing only vague environmental protection.

For a government of limited environmental ambition bioregional plans represent more a political gamble than a reform.

Morrison has clearly rejected the safer option of asking Ley to bring forward a comprehensive response to the Samuel review, casting streamlining as part of a wider agenda.

Such a reform would have better Senate prospects and created room to negotiate.

Morrison could also have promised to reintroduce the streamlining bills after the election. But he must have concluded that the measure has no better chance of getting through the next Senate than this one.

What price fundamental reform?

If the government successfully fudges bioregional plans, the result would be watered-down national environmental protections.

This would run completely counter to the key message of the Samuel review, that to shy away from fundamental law reforms:

“is to accept the continued decline of our iconic places and the extinction of our most threatened plants, animals and ecosystems”.

Clearly, good reform is too expensive — politically as well as fiscally — for this budget.

Peter Burnett, Honorary Associate Professor, ANU College of Law, Australian National University

This article is republished from The Conversation under a Creative Commons license. Read the original article.

Banner image: Feed them pork, win their votes. (Image by BeckyTregear @ Pixabay)

The Farm Biodiversity Stewardship Market Bill 2022 – Watch out for weasel words

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By Peter Burnett

In 2020 I was a member of a consultative group established by Professor Graham Samuel in his review of Australia’s national environmental law, the Environment Protection and Biodiversity Conservation (EPBC) Act.

At several points in our discussions, Professor Samuel, a highly experienced and well-regarded former regulator, cautioned against ‘weasel words’: that is, hollow or ambiguous words that create a false sense of certainty or clarity.

I agreed with Professor Samuel whole-heartedly: one of the secrets of good regulation is to use simple and clear words that leave no scope for confusion or manoeuvre.

Say what you mean and mean only what you say. No legal fudges. It gives everyone certainty and increases trust in a regulatory system.

The Morrison government’s new Agriculture Biodiversity Stewardship Market Bill 2022 (Biodiversity Credits Bill), was introduced last month (February) with very little fanfare. It fails the weasel-words test by including words copied from a similar law on carbon credits, the Carbon Credits (Carbon Farming Initiative) Act 2011 (‘Carbon Credits Act’).

Creating biodiversity credits

Governments in Australia have experimented over the years with biodiversity stewardship schemes (for example, see Learning from agri-environmental schemes in Australia). Typically, these schemes pay farmers to protect or restore native vegetation on their land. The Morrison government is the latest to trial such a scheme.

One difference this time around is that the government is going further than before, using the scheme to lay foundations for wider biodiversity markets. A key to doing this is to create ‘biodiversity credits’ as a new form of property readily bought and sold.

This requires legislation and hence the Biodiversity Credits Bill. The Bill is modelled on the Carbon Credits Act.

In principle, this is a good thing.

Weasel Words

The problem is that the part of the Carbon Credits Act that deals with the integrity of carbon credits was watered down by the Abbott government in 2014 as part of its policy of replacing a carbon price with a (much more limited) purchasing of emission reductions by government.

At the time the government called this watering-down ‘streamlining’ and ‘simplification’, using its now-standard justification that the changes would ‘provide greater flexibility … while retaining the same high standards …’

Integrity is essential to ensuring that carbon or biodiversity credits represent a real gain for the environment at full face value. To achieve this, the credits must be both additional to business as usual and achieved in full compliance with a scientifically robust methodology (renamed ‘protocol’ in the new bill).

The methodology requirements for carbon credits, which are set by the minister, were watered down by the following changes:

The Biodiversity Credits Bill adopts this same watered-down system from the Carbon Credits Act.

It also lowers the bar on the integrity standards, dropping a requirement in the Carbon Credits Act that any necessary assumptions in an approved methodology be ‘conservative’ and replacing it with a requirement that any such assumptions be ‘reasonably certain’.

Superficially, the changes look minor, even trivial. In substance, they are very significant.

Their net effect was and is to weaken the benchmark for, and rigour of, the expert advice; to allow the minister to disregard the advice once given; and to allow more use of CSIRO scientists who, as government employees, can be subject to greater pressures from within government, subtle or otherwise.

In addition, the weaker and more subjective the language, the more difficult it becomes to mount a court challenge on the ground of failing to meet statutory requirements.

What now?

Rumour has it that the government is pushing for a quick passage of the Bill in the few days remaining before the Parliament is prorogued for a May election — presumably on the expectation of bipartisan support.

Such support would deliver another blow to the environment by opening the new biodiversity credits to political influence, compromising their integrity. As the market for credits grows, there will pressures from suppliers to make it easier to have approaches accredited, and from buyers to increase the supply of credits to meet demand and lower prices.

The 2014 carbon credit integrity model should not be adopted for biodiversity credits.

But more than that, biodiversity credits are like a currency. Just as the integrity of our currency has been entrusted to the Reserve Bank board, an independent and expert body, so too should the integrity of biodiversity (and carbon) credits be entrusted to an independent expert body.

I hope the Senate will not support the Biodiversity Credits Bill in its current form.

Act in haste, repent at leisure.

Banner image by monicore @ Pixabay

So, who actually does have the ‘duty of care’? Who is responsible for tomorrow?

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By David Salt

The Federal Minister for the Environment does not have a duty of care to protect young people from the harms of climate change. This was the unanimous finding of the Federal Court earlier this week. It was a finding that left high school students crying, legal scholars frowning and Sussan Ley, the Federal Minister for the Environment, beaming.

Given this, the big question I want answered is, if not the Minister for the Environment, then where (and with whom) does the ‘duty of care’ lie?

Many reasons

Much has been made about the Court decision and why the judges overturned an earlier decision that the Minister did have a duty of care when approving fossil fuel developments. (And for one of the best analyses of the legal case around this issue I’d point you to the excellent Sustainability Bite Does a ‘duty of care’ to future children make any difference to environmental approvals? written by my colleague Peter Burnett; who, incidentally, predicted exactly this outcome.)

Another excellent summary of this decision can be found at The Conversation (Today’s disappointing federal court decision undoes 20 years of climate litigation progress in Australia) which neatly brings together the facts, history and findings surrounding this appeal.

At the end of the day the three judges each ruled in favour of the Environment Minister who, in her appeal against the original finding, contended that the stated duty should not be imposed on the Minister. However, each judge had their own reasoning for why this should be.

One judge said that climate change is a matter for government, not the courts. The ‘duty’ involves “questions of policy (scientific, economic, social, industrial and political) […] unsuitable for the Judicial branch to resolve”

Another said there wasn’t a direct link between minister’s power to approve the coal mine and the effect this would have on the children.

And the third said the EPBC Act (under which the fossil fuel development was being approved and which the Minister is responsible for) doesn’t create a duty-of-care relationship between the Minister and the children. He added that establishing a standard of care isn’t feasible and that it’s not currently foreseeable that approving the coal mine extension would cause the children personal injury, as the law is understood.

If not the Minister, then who?

All well and good, and I expect this makes much sense to all the lawyers out there. But, for me, it begs the question: if not the Minister, then who should hold the duty of care?

If we are allowing a development today that is harming the people of tomorrow, then shouldn’t someone be responsible for allowing this development to proceed?

Of course, the people of tomorrow include the youth of today. Some of these young people are profoundly worried about what they are seeing around them, about what the science is telling us.

For God’s sake, it’s not even being worried about gloomy forecasts; society is actually experiencing the horror of climate change as we speak. Climate enhanced flooding is wiping away families, businesses, hopes and histories up and down Australia’s east coast. Climate-enhanced wildfires are scorching communities, forest biomes and wildlife with a ferocity and at a scale never before witnessed. We’re losing our coral reefs, our wetlands and woodlands. We’re trashing our natural heritage and our prospects for the future.

Young people see this, they can connect the dots; and they despair at the denialism and prevarication being shown by government. Many are self-organizing and protesting on the streets calling for change (only to be rebuked by our Prime Minister).

Others are exploring different pathways to get the ‘grown ups’ to do the right thing for the future they will inherit; and one of these pathways involves testing our laws about who is taking responsibility for developments (like new coal mines and gas projects) that will only be adding to the already catastrophic level of carbon emissions our species are producing.

Where to look

I don’t appreciate the detail of the law on this but, like the students at the centre of this current court case, it seems to me that our political representative who has been made Minister for the Environment is a logical place to aim.

But, as the courts have ruled, this is a question of policy, not law! This is for the politicians to fix up.

What?

Our political leaders are refusing to engage with climate change on any meaningful level. They’re happy to fight about over-the-horizon net zero targets that they will never be responsible for. They pay lip service to the mounting scientific evidence while happily turning a blind eye to the growing pile of misinformation and corporate malfeasance seeking to distract us from any measure to constrain (or reduce) our carbon economy.

If not the Environment Minister, then who? Our Prime Minister or the Minister for Emissions? Their track record for lies and integrity is even worse than our Environment Minister’s.

Is it the responsibility of our corporate leaders and billionaires? Seems their short-term interests are tied to unbounded economic growth, so I doubt we’ll see much effort here.

Or should we look to the world government to impose effective and just sustainability limits on us all. Sorry, I forgot; there’s no such thing as a world government (though conspiracy theorists like to pretend that one exists).

There are, of course, international agreements that sovereign nations can enter into on how we care for the environment and the future. Think Ramsar Convention, Convention on Biological Diversity, Kyoto Protocol and the Paris Agreement; Australia has signed up to all of them, and then failed to meet our commitments on any of them, just like all other nations.

At the end of the day, whether you’re thinking (or acting) globally or locally, no-one is actually responsible for tomorrow. ‘Duty of care’ for tomorrow is more a ‘vibe*’ than an ‘actionable’ item.

If duty of care on climate change is a question of policy more than a question of law then our whole polity is failing us and is in need of transformation. Who’s up for some serious reform?

*‘Vibe’ is a particularly Australian term arising from the cult classic 1999 movie The Castle in which a lawyer, Dennis Denuto, struggles to articulate to the judge why his clients, the Kerrigans, should be allowed to keep their home and not be compulsorily acquired for an airport development. Denuto says: “In summing up: it’s the Constitution, it’s Mabo, it’s the vibe and… no, that’s it. It’s the vibe.”

Banner image by byrev @ Pixabay

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

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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).