Peel, Jacqueline --- "Climate Change Law: The Emergence of a New Legal Discipline" [2008] MelbULawRw 29; (2008) 32(3) Melbourne University Law Review 922
[1] BSc, LLB (Hons) (Qld), LLM (NYU), PhD (Melb); Associate Professor, Melbourne Law School, The University of Melbourne; Research Associate, United States Studies Centre, The University of Sydney. The author would also like to acknowledge the funding support provided via Research Support Funds awarded by the Melbourne Law School.
[2] For early overviews of the development and scope of environmental law in Australia, see R J Fowler, ‘Environmental Law and Its Administration in Australia’ (1984) 1 Environmental and Planning Law Journal 10; Douglas J Whalan, ‘The Structure and Nature of Australian Environmental Law’ (1977) 8 Federal Law Review 294.
[3] See generally Gerry Bates, Environmental Law in Australia (6th ed, 2006). See also P W Birnie and A E Boyle, International Law and the Environment (2nd ed, 2002); Philippe Sands, Principles of International Environmental Law (2nd ed, 2003); D E Fisher, Water Law (2000).
[4] Stephen Keim, ‘Climate Law in Australia’ (2008) 25 Environmental and Planning Law Journal 147, 149.
[5] Ross Garnaut, The Garnaut Climate Change Review: Final Report (2008) xviii (‘Garnaut Review’) <http://www.garnautreview.org.au/index.htm> .
[6] Tim Bonyhady and Peter Christoff, ‘Introduction’ in Tim Bonyhady and Peter Christoff (eds), Climate Law in Australia (2007) 1, 1–2.
[7] Svante Arrhenius, ‘On the Influence of Carbonic Acid in the Air upon the Temperature of the Ground’ (1896) 5th ser 41 London, Edinburgh, and Dublin Philosophical Magazine and Journal of Science 237. See also Roger Revelle and Hans E Suess, ‘Carbon Dioxide Exchange between Atmosphere and Ocean and the Question of an Increase of Atmospheric CO2 During the Past Decades’ (1957) 9 Tellus 18. Revelle was a leading figure in the field of climate change science. He headed up the Scientific Advisory Committee Panel on Environmental Pollution that, in 1965, published the first authoritative United States government report in which CO2 from fossil fuels was officially recognised as a potential global problem: see Environmental Pollution Panel, President’s Science Advisory Committee, United States, Restoring the Quality of Our Environment (1965). A subsequent article was widely read and had an influential impact on public opinion with respect to global warming: see Roger Revelle, ‘Carbon Dioxide and World Climate’ (1982) 247(2) Scientific American 35.
[8] In particular, the Intergovernmental Panel on Climate Change (‘IPCC’) (providing scientific assessments of climate change risk and impacts) was established in 1988, followed by the international framework treaty, the United Nations Framework Convention on Climate Change, opened for signature 9 May 1992, 1771 UNTS 107 (entered into force 21 March 1994) (‘UNFCCC’).
[9] Bonyhady and Christoff, above n 5, 2. This article does not seek to engage with the complex question of what constitutes (or should constitute) a scholarly or practical discipline in the law. Rather, the intention is to illustrate the development of a significant body of law with a new focus around the issue of climate change.
[10] IPCC, IPCC Fourth Assessment Report (2007) 2 <http://www.ipcc.ch/pdf/assessment-report/
ar4/syr/ar4_syr_spm.pdf>.
[11] Stephen H Schneider, Serguei Semenov and Anand Patwardhan, ‘Assessing Key Vulnerabilities and the Risk from Climate Change’ in Working Group II, IPCC, Climate Change 2007: Impacts, Adaptation and Vulnerability (2007) 780–810 <http://www.ipcc.ch/ipccreports/ar4-wg2.htm> .
[12] Katharine Murphy, ‘PM to Unveil Details of Carbon Trading Plan’, The Age (Melbourne), 17 July 2007, 3. For an account of the Howard government’s attitude and response to climate change from a Liberal Party insider, see Guy Pearse, High & Dry: John Howard, Climate Change and the Selling of Australia’s Future (2007).
[13] See, eg, Gray v Minister for Planning [2006] NSWLEC 720; (2006) 152 LGERA 258, 287 (Pain J) (‘Anvil Hill’); Walker v Minister for Planning (2007) 157 LGERA 124, 192 (Biscoe J) (‘Walker’). See also Massachusetts v Environmental Protection Agency, 549 US 497, 504–5, 521–3 (Stevens J for Stevens, Kennedy, Souter, Ginsburg and Breyer JJ) (2007). Cf Re Xstrata Coal Queensland Pty Ltd [2007] QLRT 33 (Unreported, Koppenol P, 15 February 2007) [16]–[18] (‘Xstrata (first instance)’); revd Queensland Conservation Council Inc v Xstrata Coal Queensland Pty Ltd [2007] QCA 338; (2007) 155 LGERA 322 (‘Xstrata (appeal)’).
[14] Nicholas Stern, Cabinet Office and Her Majesty’s Treasury, United Kingdom, The Economics of Climate Change: The Stern Review (2006).
[15] Ibid vi–ix.
[16] For copies of all these reports and background information on the Garnaut Review, see <http://www.garnautreview.org> .
[17] Garnaut Review, above n 4, xix.
[18] An Inconvenient Truth (Directed by Davis Guggenheim, Paramount Classics and Participant Productions, 2006).
[19] Bureau of Meteorology, Australian Government, ‘Annual Australian Climate Statement 2005: Australia’s Hottest Year on Record’ (Press Release, 4 January 2006) <http://
www.bom.gov.au/announcements/media_releases/climate/change/20060104.shtml>.
[20] Bureau of Meteorology, Australian Government, ‘Drought Statement: Rainfall Deficiencies Expand in Southeastern Australia’ (Press Release, 5 November 2008) <http://
www.bom.gov.au/announcements/media_releases/climate/drought/20081105.shtml>.
[21] Opened for signature 16 March 1998, 37 ILM 22 (entered into force 16 February 2005).
[22] Tony Hill and Lisa Moore, Blake Dawson, ‘Australia Ratifies the Kyoto Protocol’ (Greenhouse Update, December 2007) 3 <http://www.blakedawson.com/WorkArea/DownloadAsset.aspx?
id=47029>. For a further discussion of the Kyoto Protocol, see below Part III(A).
[23] Bonyhady and Christoff, above n 5, 2–3.
[24] Ibid. For an analysis of the extent to which current Australian environmental and planning laws cover GHG emissions, see D E Fisher, ‘The Statutory Relevance of Greenhouse Gas Emissions in Environmental Regulation’ (2007) 24 Environmental and Planning Law Journal 210.
[25] For instance, climate change law has subsumed many of the issues concerned with energy production and distribution: see generally Rosemary Lyster and Adrian Bradbrook, Energy Law and the Environment (2006).
[26] This is by no means the only way of ordering the field, but it is one that makes sense in light of Australia’s federal structure (that tends to separate out the domains of international, national, state and local levels of governance) and the historical division in environmental law between the activities of governments (conventionally seen as the main source of regulation) and those of non‑governmental actors.
[27] At most, there is a tortuously worded provision in art 4(2)(a) of the UNFCCC, opened for signature 9 May 1992, 1771 UNTS 107 (entered into force 21 March 1994) that recognises that the return to ‘earlier levels’ of GHG emissions by the year 2000 ‘would’ contribute to the modification of longer term trends in emissions production consistent with the objective of the Convention.
[28] For example, the UNFCCC sets up: a decision-making body, named the ‘Conference of the Parties’ (ibid art 7); various subsidiary advisory bodies (arts 9–10); and a mechanism for providing funding and technology transfer principally to developing countries (art 11).
[29] Ibid art 3(1).
[30] Ibid. The other guiding principles of the Convention are those requiring full consideration of the specific needs and special circumstances of developing countries and countries most vulnerable to the impacts of climate change (art 3(2)); the precautionary principle calling for measures not to be postponed on the basis of scientific uncertainty (art 3(3)); the principle of sustainable development (art 3(4)); and the importance of cooperation ‘to promote a supportive and open international economic system that would lead to sustainable economic growth and development in all Parties, particularly developing country Parties, thus enabling them better to address the problems of climate change’ (art 3(5)).
[31] For an analysis of the ‘common but differentiated responsibilities’ principle and its manifestation in international climate change law, see Christopher D Stone, ‘Common but Differentiated Responsibilities in International Law’ (2004) 98 American Journal of International Law 276.
[33] Kyoto Protocol, opened for signature 16 March 1998, 37 ILM 22 (entered into force 16 February 2005). The treaty languished for many years after its conclusion in the face of opposition by major developed countries such as the US. However, the World Summit on Sustainable Development in 2002 was a turning point, providing the stimulus for the critical ratifications of Canada and Russia.
[34] The Kyoto Protocol covers six GHGs — carbon dioxide, methane, nitrous oxide, hydrofluorocarbons, perfluorocarbons and sulphur hexafluoride: ibid Annex A.
[35] Ibid art 3(1).
[36] See UNFCCC, opened for signature 9 May 1992, 1771 UNTS 107, art 4(2), Annex I (entered into force 21 March 1994).
[37] For a complete specification of these targets, see Kyoto Protocol, opened for signature 16 March 1998, 37 ILM 22, Annex B (entered into force 16 February 2005).
[38] Australia also benefits substantially from art 3(7) of the Kyoto Protocol, which allows countries with net emissions from land clearing in 1990 to include those emissions in calculating their 1990 starting baseline. A baseline inflated via land clearing emissions means that the reductions Australia must make to meet the eight per cent target are similarly reduced. See further Clive Hamilton and Lins Vellen, ‘Land-Use Change in Australia and the Kyoto Protocol’ (1999) 2 Environmental Science & Policy 145.
[39] Grant Anderson, What Happened in Bali (23 January 2008) Lawyers Weekly Online <http://
www.lawyersweekly.com.au/articles/What-happened-in-Bali_z142381.htm>. Little progress occurred at the 14th Conference of the Parties held in Poznań, Poland, from 1–12 December 2008. No significant breakthroughs were achieved, meaning that negotiators face a hectic year in 2009 to finalise new treaty arrangements by the time of the next Copenhagen meeting: see International Institute for Sustainable Development, ‘Summary of the Fourteenth Conference of Parties to the UN Framework Convention on Climate Change and Fourth Meeting of Parties to the Kyoto Protocol’ (15 December 2008) 12(395) Earth Negotiations Bulletin <http://www.iisd.ca/download/pdf/enb12395e.pdf> .
[40] Detailed discussion of these mechanisms cannot be attempted here, but see Sebastian Oberthür and Hermann E Ott, The Kyoto Protocol: International Climate Policy for the 21st Century (1999) chs 13–15.
[41] See Kyoto Protocol, opened for signature 16 March 1998, 37 ILM 22, arts 6, 12, 17 (entered into force 16 February 2005). For analysis of international carbon trades, particularly the use of the clean development mechanism, see Martijn Wilder and Monique Miller, ‘Carbon Trading Markets: Legal Considerations’ in Tim Bonyhady and Peter Christoff (eds), Climate Law in Australia (2007) 67, 70–3.
[42] This would be an example of a joint implementation project. Note that sink activities (which result in net carbon absorption) as well as emissions reductions can be counted towards targets in the first commitment period: Kyoto Protocol, opened for signature 16 March 1998, 37 ILM 22, art 3(3) (entered into force 16 February 2005).
[43] This would be an example of a project under the clean development mechanism. For a discussion of these types of projects in developing Pacific Island nations, see Atul Raturi, ‘Sustainable Development Recipe’, Fiji Times (online), 2 July 2008 <http://www.
fijitimes.com/story.aspx?id=93817>.
[44] Nonetheless, Annex I parties of the Kyoto Protocol must ensure that domestic actions (as opposed to use of the market mechanisms under the Kyoto Protocol) are a ‘significant element’ of the efforts made to meet their targets: Conference of the Parties, Principles, Nature and Scope of the Mechanisms Pursuant to Articles 6, 12 and 17 of the Kyoto Protocol, Decision 15/CP.7, 7th sess, 8th plen mtg, 2, UN Doc FCCC/CP/2001/13/Add.2 (21 January 2002) 2 <http://un
fccc.int/resource/docs/cop7/13a02.pdf#page=2>.
[45] Conference of the Parties, Procedures and Mechanisms Relating to Compliance under the Kyoto Protocol, Decision 24/CP.7, 7th sess, 8th plen mtg, s XV, UN Doc FCCC/CP/2001/13/Add.3 (21 January 2002) <http://unfccc.int/resource/docs/cop7/13a03.pdf> . This mechanism is now fully operational and has recently found Greece to be in noncompliance with the national system requirements for Annex B parties of the Kyoto Protocol. For further information, see Enforcement Branch of the Compliance Committee, Final Decision, UN Doc CC-2007-1-8/Greece/EB (17 April 2008) <http://unfccc.int/files/kyoto_protocol/compliance/enforcement_branch/
application/pdf/cc-2007-1-8_greece_eb_final_decision.pdf>. See also The Secretariat, Compliance Committee, Informal Information Note by the Secretariat: The Compliance Procedure with Respect to Greece (14 November 2008) <http://unfccc.int/files/kyoto_protocol/compliance/
application/pdf/informal_info_note_by_the_sec_on_the_compliance_procedure_with_respect_
to_greece-rev-2.pdf>.
[46] For a discussion, see Rosemary Lyster, ‘Chasing Down the Climate Change Footprint of the Private and Public Sectors: Forces Converge’ (Pt 1) (2007) 24 Environmental and Planning Law Journal 281, 298–9.
[47] For details, see Asia-Pacific Partnership on Clean Development and Climate <http://www.asiapacificpartnership.org> .
[48] See, eg, Peter Christoff and Robyn Eckersley, ‘The Kyoto Protocol and the Asia Pacific Partnership on Clean Development and Climate’ in Tim Bonyhady and Peter Christoff (eds), Climate Law in Australia (2007) 32; Alexandra Woollacott, ‘International Cooperation on Climate Change’ [2007] 1 National Environmental Law Review 47.
[49] See Australian Government, Asia-Pacific Partnership on Clean Development and Climate <http://www.app.gov.au> .
[50] United Nations, A More Secure World: Our Shared Responsibility — Report of the Secretary‑General’s High-Level Panel on Threats Challenges and Change (2004) 26 <http://www.un.org/secureworld/report2.pdf> .
[51] On 17 April 2007, the United Nations Security Council held its first ever debate on the impact of climate change on peace and security: see Department of Public Information, News and Media Division, United Nations, ‘Security Council Holds First-Ever Debate on Impact of Climate Change on Peace, Security, Hearing over 50 Speakers’ (Press Release, 17 April 2007) <http://www.un.org/News/Press/docs/2007/sc9000.doc.htm> .
[52] See, eg, Emma Brindal, ‘Asia-Pacific: Justice for Climate Refugees’ (2007) 32 Alternative Law Journal 240.
[53] See John Hontelez, Time to Tax the Carbon Dodgers (5 April 2007) BBC News <http://news.bbc.co.uk/1/hi/sci/tech/6524331.stm> .
[54] For an assessment of the international trade compatibility of potential climate change measures, see Andrew Green, ‘Climate Change, Regulatory Policy and the WTO: How Constraining Are Trade Rules?’ (2005) 8 Journal of International Economic Law 143.
[55] See generally James Crawford, ‘The Constitution and the Environment’ [1991] SydLawRw 3; (1991) 13 Sydney Law Review 11.
[56] Australian Constitution s 51(xxix).
[57] Commonwealth v Tasmania [1983] HCA 21; (1983) 158 CLR 1, 131–2 (Mason J), 172 (Murphy J), 232 (Brennan J), 259 (Deane J) (‘Tasmanian Dam Case’). See also Koowarta v Bjelke‑Petersen [1982] HCA 27; (1982) 153 CLR 168, 225 (Mason J).
[58] Partial implementation is constitutionally permissible: Victoria v Commonwealth (1996) 187 CLR 416, 546 (Brennan CJ, Toohey, Gaudron, McHugh and Gummow JJ).
[59] Nick Minchin, ‘Responding to Climate Change: Providing a Policy Framework for a Competitive Australia’ [2001] UNSWLawJl 37; (2001) 24 University of New South Wales Law Journal 550, 551. For an account of the various reasons offered by the Howard government to support this position, see Trevor M Power, ‘Issues and Opportunities for Australia under the Kyoto Protocol’ (2003) 20 Environmental and Planning Law Journal 459.
[60] Lyster and Bradbrook, above n 24, 85–7.
[61] For details, see Department of the Environment, Water, Heritage and the Arts, Australian Government, Greenhouse Challenge Plus (26 August 2008) <http://www.environment.
gov.au/settlements/challenge>. On the reporting requirements, see generally the National Greenhouse and Energy Reporting Act 2007 (Cth) (‘NGERA’). See also Department of Climate Change, Australian Government, Greenhouse and Energy Reporting (9 January 2009) <http://www.climatechange.gov.au/reporting/index.html>.
[62] Rory Sullivan, ‘Greenhouse Challenge Plus: A New Departure or More of the Same?’ (2006) 23 Environmental and Planning Law Journal 60, 73.
[63] Liable entities are those that acquire electricity on a grid with a capacity of 100 megawatts (‘MW’) or more: see Renewable Energy (Electricity) Act 2000 (Cth) ss 31, 35.
[64] Renewable Energy (Electricity) Act 2000 (Cth) s 8.
[65] Renewable Energy (Electricity) Act 2000 (Cth) s 27.
[66] Renewable Energy (Electricity) (Charge) Act 2000 (Cth) s 6.
[67] Andrew G Thompson and Rob Campbell-Watt, ‘Australia and an Emissions Trading Market — Opportunities, Costs and Legal Frameworks’ (2005) 24 Australian Resources & Energy Law Journal 151, 163–5.
[68] See, eg, Submission to the Review of the Mandatory Renewable Energy Target, Office of the Renewable Energy Regulator, Australian Government, 19 May 2003, Submission No 194 (Greenpeace Australia Pacific) <http://www.mretreview.gov.au/pubs/mret-submission194.pdf> Submission to the Review of the Mandatory Renewable Energy Target, Office of the Renewable Energy Regulator, Australian Government, 19 May 2003, Submission No 210 (Australian Conservation Foundation) <http://www.mretreview.gov.au/pubs/mret-submission210.pdf> .
[69] See John Howard, Statement by the Prime Minister of Australia the Hon John Howard MP — Safeguarding the Future: Australia’s Response to Climate Change (20 November 1997) <http://pandora.nla.gov.au/pan/10052/20040821-0000/www.pm.gov.au/news/media_releases/
1997/GREEN.html>:
The Government will work with the States and Territories to set a mandatory target for electricity retailers to source an additional two per cent of their electricity from renewable energy sources by 2010. This will accelerate the uptake of renewable energy in grid-based electricity and provide a larger base for the development of commercially competitive renewable energy.
[70] See Lyster and Bradbrook, above n 24, 98; Submission to Senate Standing Committee on Environment, Communications, Information Technology and the Arts, Inquiry into Budgetary and Environmental Implications of the Government’s Energy White Paper, 2 August 2004, Submission No 3 (Hydro Tasmania) <http://www.aph.gov.au/senate/committee/ecita_ctte/
completed_inquiries/2004-07/energy_white_paper/submissions/sub3.pdf>.
[71] MRET Review Panel, Renewable Opportunities: A Review of the Operation of the Renewable Energy (Electricity) Act 2000 (2003) xxi (‘Tambling Review’) <http://www.mretreview.gov.au/
report/index.html>.
[72] Australian Greenhouse Office, Australian Government, Government Response to Tambling Mandatory Renewable Energy Target (MRET) Review Recommendations (2004) 2 (items 8–9) <http://www.greenhouse.gov.au/renewabletarget/pubs/mret-response.pdf> .
[73] Department of Climate Change, Australian Government, Australia’s Renewable Energy Target (23 December 2008) <http://www.climatechange.gov.au/renewabletarget/index.html> .
[74] COAG Working Group on Climate Change and Water, Design Options for the Expanded National Renewable Energy Target Scheme (2008) 4 <http://www.climatechange.gov.au/
renewabletarget/consultation/pubs/ret-designoptions.pdf>.
[75] See ibid.
[76] Department of the Prime Minister and Cabinet, Climate Change and Water <http://www.pm.gov.au/topics/climate.cfm#target> .
[77] Market mechanisms of this kind raise a multitude of design issues and have been subjected to stringent critique. For useful overviews, see Peter Christoff, ‘Can the Invisible Hand Adjust the Thermostat? Carbon Emissions Trading and Australia’ in Tim Bonyhady and Peter Christoff (eds), Climate Law in Australia (2007) 82; Rosemary Lyster, ‘Chasing Down the Climate Change Footprint of the Public and Private Sectors: Forces Converge’ (Pt 2) (2007) 24 Environmental and Planning Law Journal 450, 454–69.
[78] See, eg, Australian Greenhouse Office, ‘National Emissions Trading: Establishing the Boundaries’ (Discussion Paper No 1, 1999); Australian Greenhouse Office, ‘National Emissions Trading: Issuing the Permits’ (Discussion Paper No 2, 1999); Australian Greenhouse Office, ‘National Emissions Trading: Crediting the Carbon’ (Discussion Paper No 3, 1999); Australian Greenhouse Office, ‘National Emissions Trading: Designing the Market’ (Discussion Paper No 4, 1999).
[79] Garnaut Review, above n 4, xvi.
[80] These included an interim report (Garnaut Climate Change Review, Interim Report to the Commonwealth, State and Territory Governments of Australia (February 2008)); a discussion paper on an emissions trading scheme (Garnaut Climate Change Review, Emissions Trading Scheme Discussion Paper (March 2008)); a draft report (Garnaut Climate Change Review, Draft Report (June 2008)); and a supplementary draft report on targets and trajectories (Garnaut Climate Change Review, Targets and Trajectories: Supplementary Draft Report (September 2008)). All reports are accessible from Garnaut Climate Change Review, All Reports & Resources (17 October 2008) <http://www.garnautreview.org.au/CA25734E0016A131/pages/all-reports--resources> .
[81] Garnaut Review, above n 4, xxx.
[82] Ibid. In the event of a post-2012 agreement, with coverage of both developed and developing countries, that seeks to hold GHG emissions to 550 ppm CO2 equivalent, Garnaut recommends a 10 per cent reduction on 2000 levels by 2020 and an 80 per cent reduction by 2050. If no international agreement is achieved, the recommendation is that Australia commit to at least a 5 per cent reduction on 2000 levels by 2020.
[83] Ibid 307, 321.
[84] Ibid 282, 284.
[85] Ibid 327–9.
[86] Ibid 331–3.
[87] See generally ibid chs 14, 16. Included are those industries at a competitive disadvantage so long as there is no global, comprehensive emissions trading scheme.
[88] Ibid 314–16, ch 20 (especially 480).
[89] Department of Climate Change, Australian Government, Green Paper (July 2008) <http://www.climatechange.gov.au/greenpaper/report/index.html> .
[90] Department of Climate Change, Australian Government, White Paper (December 2008) <http://www.climatechange.gov.au/whitepaper/report/index.html> .
[91] Ibid xx.
[92] Ibid iv, xix.
[93] Ibid xix.
[94] Ibid 6-4. See above n 33 for a list of these six GHGs.
[95] White Paper, above n 89, xxviii–xxix, 14-17.
[96] Ibid xxviii.
[97] Ibid xxviii, 6-1. Landfill facilities emitting 10 000 tonnes of CO2 equivalent will also be covered where operating in the vicinity of other landfill facilities: at 6-35–6-36.
[98] Ibid 17-16, 17-18.
[99] Ibid 12-14.
[100] Ibid 12-49.
[101] Ibid 12-55 (Policy Position 12.12).
[102] See ibid 13-7.
[103] Ibid B-12.
[104] Ibid 13-36–13-38.
[105] Ibid 9-7.
[106] Ibid 17-1.
[107] See ibid 18-1–18-14.
[108] Ibid 8-37.
[109] Garnaut Review, above n 4, 314.
[110] See Susan J Kurkowski, ‘Distributing the Right to Pollute in the European Union: Efficiency, Equity, and the Environment’ (2006) 14 New York University Environmental Law Journal 698; Christian Egenhofer, ‘The Making of the EU Emissions Trading Scheme: Status, Prospects and Implications for Business’ (2007) 25 European Management Journal 453; Felix Matthes et al, Öko-Institut, The Environmental Effectiveness and Economic Efficiency of the European Union Emissions Trading Scheme: Structural Aspects of Allocation — A Report to the WWF (2005)
12–13 <www.wwf.de/imperia/md/content/klima/2005_11_08_full_final__koinstitut.pdf>.
[111] European Parliament and Council, Directive 2003/87/EC Establishing a Scheme for Greenhouse Gas Emission Allowance Trading within the Community and Amending Council Directive 96/61/EC [2003] OJ No L 275/32, art 10.
[112] Garnaut Review, above n 4, 331.
[113] Lyster, ‘Chasing Down the Climate Change Footprint’ (Pt 2), above n 76, 454. For a further discussion of the issue of integration in the context of climate change law, see below Part IV(C).
[114] John Braithwaite and Christine Parker, ‘Conclusion’ in Christine Parker et al (eds), Regulating Law (2004) 269, 269. See also Robyn Eckersley, ‘Markets, the State and the Environment: An Overview’ in Robyn Eckersley (ed), Markets, the State and the Environment: Towards Integration (1995) 7, 21.
[115] Green Paper, above n 88, 193.
[116] NGERA ss 12(1), 13, 19; Green Paper, above n 88, 42 (point 5.9). Staggered thresholds are specified so that companies with lower emissions have a transitional period in which to phase in their compliance: see NGERA s 13.
[117] Green Paper, above n 88, 194.
[118] See generally National Greenhouse and Energy Reporting Regulations 2008 (Cth).
[119] National Greenhouse and Energy Reporting Regulations 2008 (Cth) reg 2.23(2)(a).
[120] National Greenhouse and Energy Reporting Regulations 2008 (Cth) reg 2.23(2)(b).
[121] The emissions from coal exported by Australia far exceed the country’s domestic emissions: see Chris McGrath, ‘Regulating Greenhouse Gas Emissions from Australian Coal Mines’ (2008) 25 Environmental and Planning Law Journal 240, 241.
[122] Ecologically-rich sites, such as the Great Barrier Reef, are predicted to suffer a significant loss of biodiversity with rising ocean temperatures: see K Hennessy et al, ‘Australia and New Zealand’ in Working Group II, IPCC, Climate Change 2007: Impacts, Adaptation and Vulnerability (2007) 527. For a discussion of the targets considered necessary to avoid severe impacts to the Reef from climate change, see Chris McGrath, ‘Setting Climate Change Targets to Protect the Great Barrier Reef’ (2007) 24 Environmental and Planning Law Journal 182.
[123] This is a longstanding source of criticism of the Act: see Lisa Ogle, ‘The Environment Protection and Biodiversity Conservation Act 1999 (Cth): How Workable Is It?’ (2000) 17 Environmental and Planning Law Journal 468. For an alternative perspective on the desirability of a ‘greenhouse trigger’ in the EPBC Act, see Andrew Macintosh, ‘The Greenhouse Trigger: Where Did It Go and What of Its Future?’ in Tim Bonyhady and Peter Christoff (eds), Climate Law in Australia (2007) 46.
[124] EPBC Act pt 3 div 1.
[125] EPBC Act s 12.
[126] EPBC Act s 18.
[127] EPBC Act s 20.
[128] EPBC Act s 23.
[129] EPBC Act s 527E(1)(b).
[130] An ‘action’ is defined to include such things as developments and undertakings: EPBC Act s 523.
[131] EPBC Act s 527E(1). Subsection (2) clarifies the extent of the provision as regards indirect consequences of an action that are the result of third parties’ activities. The definition is largely regarded as embedding the interpretation of ‘impact’ given by the Full Federal Court of Australia in Minister for Environment and Heritage v Queensland Conservation Council Inc (2004) 139 FCR 24, 38 (Black CJ, Ryan and Finn JJ).
[132] Such actions are designated ‘controlled actions’ under s 67 of the EPBC Act.
[133] This occurs via standing bilateral agreements (EPBC Act s 83), or via one-off accreditation of the state or territory process (s 87(4)).
[134] EPBC Act s 133.
[135] Judicial review is pursuant to the Administrative Decisions (Judicial Review) Act 1977 (Cth). Injunctions may be issued pursuant to s 475 of the EPBC Act. Broad standing provisions apply in respect of both kinds of actions: see EPBC Act ss 475(6)–(7), 487.
[136] Major environmental organisations in Australia have maintained their opposition to nuclear energy on environmental grounds: see Jim Green, Friends of the Earth et al, Nuclear Power: No Solution to Climate Change (2005) <http://www.foe.org.au/anti-nuclear/issues/nfc/nuclear-climate/NukesNoSolutionFull.pdf> .
[137] For recent contributions on this issue, see Justin Healey (ed), ‘Nuclear Power’ (2006) 246 Issues in Society 1; Ian Lowe, ‘Reaction Time: Climate Change and the Nuclear Option’ (2007) 27 Quarterly Essay 1.
[138] Nuclear power plants do not directly generate GHG emissions. Nevertheless, some emissions are generated through mining and processing of nuclear fuel, construction of the plants, waste management and decommissioning activities: see Uranium Mining, Processing and Nuclear Energy Review Taskforce, Department of the Prime Minister and Cabinet, Australian Government, Uranium Mining, Processing and Nuclear Energy — Opportunities for Australia? (2006) 8 (‘Switkowski Report’) <http://pandora.nla.gov.au/tep/66043> .
[139] Ibid 1.
[140] Ibid 12.
[141] Ibid.
[142] Katharine Murphy, ‘PM Puts His Faith in Ziggy and Nuclear Power’, The Age (Melbourne), 30 December 2006, 1.
[143] Paul Kelly and Geoff Elliott, ‘Labor Faces Inside Push on Nuclear’, The Australian (Sydney), 27 June 2008, 1, 2. For a further discussion of geosequestration or, as it is also known, ‘clean coal’ or ‘carbon capture and storage’, see below Part III(C)(3).
[144] For instance, current prohibitions in s 140A of the EPBC Act and s 10 of the Australian Radiation Protection and Nuclear Safety Act 1998 (Cth) would need to be repealed.
[145] Katharine Murphy, ‘Fuel for Thought: The Options Available to Meet Australia’s Energy Needs’, The Age (Melbourne), 5 July 2008, 4.
[146] Australian Constitution s 109.
[147] For an overview of federal–state relations in the environmental field, see Jacqueline Peel and Lee Godden, ‘Australian Environmental Management: A “Dams” Story’ [2005] UNSWLawJl 41; (2005) 28 University of New South Wales Law Journal 668, 670–82.
[148] Nevertheless, there has been significant variation in their responses. Some jurisdictions with a fairly minimal GHG contribution, such as the Northern Territory, have moved only slowly to introduce policies to mitigate climate change.
[149] The umbrella policy documents in each state and territory are: Australian Capital Territory, Weathering the Change: The ACT Climate Change Strategy 2007–2025 (2007) <http://
www.tams.act.gov.au/__data/assets/pdf_file/0003/63624/Climate_Change_Strategy.pdf>; New South Wales Greenhouse Office, New South Wales Government, NSW Greenhouse Plan (2005) <http://www.environment.nsw.gov.au/resources/climatechange/2811FINALNSWGHPlanweb.
pdf>; Environment Protection Authority and Department of Natural Resources, Environment and the Arts, Northern Territory Government, The Northern Territory Strategy for Greenhouse Action (2006) <http://www.nt.gov.au/nreta/environment/greenhouse/pdf/greenhouse_action.
pdf>; Queensland Government, ClimateSmart 2050 — Queensland Climate Change Strategy 2007: A Low-Carbon Future (2007) <http://www.thepremier.qld.gov.au/library/pdf/initiatives/
climate_change/ClimateSmart_2050.pdf>; Government of South Australia, Tackling Climate Change: South Australia’s Greenhouse Strategy — 2007–2020 (2007) <http://www.climatechange.sa.gov.au/uploads/pdf/TACKLING_CLIMATE_CHANGE_STRATEGY.pdf> Tasmanian Climate Change Office, Department of Premier and Cabinet, Tasmanian Government, Tasmanian Framework for Action on Climate Change (2008) <http://www.dpac.
tas.gov.au/divisions/climatechange/framework>; Department of Natural Resources and Environment, Victorian Government, Victorian Greenhouse Strategy (2002) <http://
www.climatechange.vic.gov.au/CA256F310024B628/0/B5E4EF1DC835D260CA25738400099272/$File/2002Victorian+Greenhouse+Strategy.pdf>; Department of Sustainability and Environment, Victorian Government, Victorian Greenhouse Strategy Action Plan Update (2005) <http://www.climatechange.vic.gov.au/CA256F310024B628/0/7681ECF2ED52BF1ECA25738
300814F0C/$File/VGS+Action+Plan+Update+2005.pdf>; Western Australian Greenhouse Task Force, Government of Western Australia, Western Australian Greenhouse Strategy (2004) <http://portal.environment.wa.gov.au/pls/portal/docs/PAGE/DOE_ADMIN/GREENHOUSE_RE
POSITORY/TAB6327544/GREENHOUSE_STRATEGY_001.PDF>.
[150] David Jones, ‘The Kyoto Protocol, Carbon Sinks and Integrated Environmental Regulation: An Australian Perspective’ (2002) 19 Environmental and Planning Law Journal 109, 127–8.
[151] New South Wales contributes about 151 million tonnes or 28 per cent of Australian GHG emissions: see New South Wales Greenhouse Office, NSW Greenhouse Plan: Executive Summary (2005) 3 <http://www.environment.nsw.gov.au/resources/climatechange/1111FINALGHO
ExecSummary.pdf>.
[152] For an overview of the scheme, see Tom Kearney, ‘Market-Based Policies for Demand Side Energy Efficiency: A Comparison of the New South Wales Greenhouse Gas Abatement Scheme and the United Kingdom’s Energy Efficiency Commitment’ (2006) 23 Environmental and Planning Law Journal 113, 118–22.
[153] Such schemes set a baseline level of emissions, improvements upon which generate credits for participating firms: Wilder and Miller, above n 40, 68.
[154] Thompson and Campbell-Watt, ‘Australia and an Emissions Trading Market’, above n 66,
156–7.
[155] See Electricity (Greenhouse Gas Emissions) Act 2004 (ACT). For details, see Independent Competition and Regulatory Commission, ACT Government, ACT Greenhouse Gas Abatement Scheme (21 May 2008) <http://www.icrc.act.gov.au/actgreenhousegasabatementscheme> .
[156] See, eg, Lyster and Bradbrook, above n 24, 143–4; Kearney, above n 151, 119; Rob Passey, Iain MacGill and Hugh Outhred, ‘The NSW Greenhouse Gas Reduction Scheme: An Analysis of the NGAC Registry for the 2003, 2004 and 2005 Compliance Periods’ (Discussion Paper No 070822, Centre for Energy and Environmental Markets, The University of New South Wales, 2007) 3 <http://www.ceem.unsw.edu.au/content/userDocs/CEEM_DP_070827_000.pdf> .
[157] Passey, MacGill and Outhred, above n 155, 19–28.
[158] Lyster and Bradbrook, above n 24, 143.
[159] Kearney, above n 151, 122.
[160] The Taskforce maintains a website: see National Emissions Trading Taskforce: An Initiative of State and Territory Governments of Australia <http://www.emissionstrading.org.au> .
[161] Mike Rann, ‘Federation Council Agree to Emissions Trading Timeframe’ (Press Release, 12 April 2007) <http://www.ministers.sa.gov.au/news.php?id=1470> . Mike Rann was the Chairman of the Council for the Australian Federation at the time.
[162] See, eg, Inter-Jurisdictional Emissions Trading Working Group, A National Emission Trading Scheme: A Report to First Ministers (2004) 4–6 <http://www.emissionstrading.org.au/__data/
assets/pdf_file/0012/417/report.pdf>; National Emissions Trading Taskforce, ‘Possible Design for a National Greenhouse Gas Emissions Trading Scheme’ (Discussion Paper, August 2006) 16, 37, 121–2 <http://www.emissionstrading.org.au/key_documents/discussion_paper> .
[163] See, eg, Carbon Rights Legislation Amendment Act 1998 (NSW) sch 1, inserting ss 87A and 88AB into the Conveyancing Act 1919 (NSW); Forestry and Land Title Amendment Act 2001 (Qld) s 4, inserting pt 6B into the Forestry Act 1959 (Qld); Forest Property (Carbon Rights) Amendment Act 2006 (SA), amending the Forest Property Act 2000 (SA); Forestry Rights Registration Amendment Act 2002 (Tas), amending the Forestry Rights Registration Act 1990 (Tas); Forestry Rights (Amendment) Act 2001 (Vic), amending the Forestry Rights Act 1996 (Vic); Carbon Rights Act 2003 (WA). For overviews of these developments, see Andrew Thompson and Rob Campbell-Watt, ‘Carbon Rights — Development of the Legal Framework for a Trading Market’ [2004] 2 National Environmental Law Review 31; Andrew G Thompson and Jolanta Olszewska, ‘Australia: Carbon Rights’ (2003) 1(1) Oil, Gas & Energy Law Intelligence 17.
[164] Thompson and Campbell-Watt, ‘Carbon Rights’, above n 162, 35.
[165] Jones, above n 149, 122–3.
[166] In Western Australia, there is no recognition of carbon rights accruing to foresters under pre‑existing arrangements between landowners and foresters: see Carbon Rights Act 2003 (WA) ss 5(2)(b), 6(1)(a), 7(1), which require the form that creates a carbon right to state that it is intended to do so under the Act, and prevent carbon rights being created in any other manner. The Victorian legislation deems a forest property right granted under a forest property agreement in force immediately before the commencement of the amendment legislation as including a carbon sequestration right, as long as that agreement does not itself exclude such rights: Forestry Rights (Amendment) Act 2001 (Vic) s 6, inserting Forestry Rights Act 1996 (Vic) s 15.
[167] In Western Australia, the applicable land includes any freehold or Crown land: Carbon Rights Act 2003 (WA) ss 4, 5(1). However, in Victoria the relevant legislation does not apply in relation to Crown land: Forestry Rights Act 1996 (Vic) s 4.
[168] In Victoria, these are trees, defined as ‘trees, shrubs, bushes, seedlings, saplings and reshoots, whether alive or dead’: Forestry Rights Act 1996 (Vic) s 3(1). In Tasmania, it is trees, where trees include ‘not only timber trees, but trees, shrubs and bushes, seedlings, saplings, and re‑shoots of every description and the roots of any such trees’: Forestry Rights Registration Act 1990 (Tas) s 3; Forestry Act 1920 (Tas) s 4(1). In Western Australia, ‘land or anything on land’ that absorbs CO2 is included: Carbon Rights Act 2003 (WA) s 3.
[169] In Victoria, ‘forest property rights’ are ‘deemed not to be … interest[s] in land’: Forestry Rights Act 1996 (Vic) s 11(b). In contrast, carbon (sequestration) rights are interests in land in NSW (Conveyancing Act 1919 (NSW) ss 87A (definition of ‘forestry right’), 88AB) and in Western Australia (Carbon Rights Act 2003 (WA) s 6(1)(a)). Carbon rights in South Australia are ‘in the nature of a chose in action’, but agreements creating carbon rights can be registered and are enforceable against subsequent registered proprietors of the relevant land: Forest Property Act 2000 (SA) ss 3A(1), 7(1), 9(1). In Queensland, ‘the vesting of [a] natural resource product … does not create an interest in land’, but does create a profit à prendre: Forestry Act 1959 (Qld) ss 61J(4)–(5).
[170] In Tasmania and Western Australia, such rights are apparently inseparable (in the sense that there is no distinction made between rights over vegetation — forest property rights — and carbon (sequestration) rights with respect to the vegetation): Forestry Rights Registration Act 1990 (Tas) ss 3, 5(1), (4); Carbon Rights Act 2003 (WA) ss 6(1)(a), 7(2), 8(1). However, they are clearly separable in South Australia and Victoria: Forest Property Act 2000 (SA) ss 5(1)–(3); Forestry Rights Act 1996 (Vic) ss 3(1), 5–6, 12.
[171] In NSW, Queensland and Tasmania, forestry rights, including carbon sequestration rights, are profits à prendre: Conveyancing Act 1919 (NSW) s 88AB(1); Forestry Act 1959 (Qld) s 61J(5); Forestry Rights Registration Act 1990 (Tas) s 5(1). However, this is not the case in South Australia, Western Australia and Victoria: Forest Property Act 2000 (SA) s 3A(1); Carbon Rights Act 2003 (WA) s 6(3); Forestry Rights Act 1996 (Vic) s 11(b).
[172] Lyster and Bradbrook, above n 24, 140.
[173] Prime Ministerial Task Group on Emissions Trading, Australian Government, Report of the Task Group on Emissions Trading (2007) 137 <http://pandora.nla.gov.au/pan/79623/20071127-1411/www.dpmc.gov.au/publications/emissions/index.html> .
[174] Garnaut Review, above n 4, 299.
[175] COAG Working Group on Climate Change and Water, above n 73, 4.
[176] See Graeme Dennis, ‘Climate Change: Australian Legislative Responses’ [2002] Australian Mining and Petroleum Law Association Yearbook 71, 72–3.
[177] The GGASs of NSW and the Australian Capital Territory are partially integrated: see Independent Competition and Regulatory Commission, ACT Government, Legislative Framework (24 December 2008) <http://www.icrc.act.gov.au/actgreenhousegasabatementscheme/legislative
framework>. Otherwise, states and territories have pursued their own unique paths.
[178] For the governing legislation, see Electricity Act 1994 (Qld) ch 5A, originally inserted by s 12 of the Electricity Amendment Act 2004 (Qld); Electricity Regulation 2006 (Qld) ch 7 (s 4 of the Electricity Amendment Regulation (No 3) 2004 (Qld) originally inserted ch 5A into the Electricity Regulation 1994 (Qld)); Eligible Electricity Guidelines for Accredited Generators 2008 (Qld), issued under s 135CK of the Electricity Act 1994 (Qld).
[179] See further Department of Mines and Energy, Queensland Government, Queensland Gas Scheme (23 December 2008) <http://www.dme.qld.gov.au/Energy/gasscheme.cfm> .
[180] Department of Mines and Energy, Queensland Government, Smart Energy Policy (16 January 2009) <http://www.dme.qld.gov.au/Energy/energy_policy.cfm> .
[181] Department of Sustainability and Environment, Victorian Government, Renewable Energy Action Plan (2006) 2 <http://www.resourcesmart.vic.gov.au/documents/REAP.pdf> .
[182] See further Essential Services Commission, Victorian Government, Victorian Renewable Energy Target (VRET) Scheme (15 October 2007) <http://www.esc.vic.gov.au/public/VRET> .
[183] Climate Change and Greenhouse Emissions Reduction Act 2007 (SA) s 5(2). Section 5(1) of the Act states that the principal aim is to reduce GHG emissions by at least 60 per cent, to a level at or below 40 per cent of 1990 levels.
[184] New South Wales, Parliamentary Debates, Legislative Assembly, 27 June 2007, 1981 (Philip Koperberg, Minister for Climate Change, Environment and Water). The Renewable Energy (New South Wales) Bill 2007 (NSW) is now before the NSW Parliament.
[185] Queensland Government, above n 148, 8.
[186] Government of Western Australia, Making Decisions for the Future: Climate Change — The Premier’s Climate Change Action Statement (May 2007) 10 <http://portal.environment.wa.
gov.au/pls/portal/url/ITEM/3001844560091406E04010AC6E0528A4>.
[187] Jon Stanhope, ‘Launch of ACT Climate Change Strategy — Weathering the Change’ (Speech delivered at the Launch of the ACT Climate Change Strategy, Canberra, 27 July 2007) <http://chiefminister.act.gov.au/media.php?c=speeches & v=3051 & s=3> .
[188] Geothermal Exploration Act 2004 (Qld); Geothermal Energy Resources Act 2005 (Vic).
[189] See Environmental Planning and Assessment Act 1979 (NSW) pt 4; Plantations and Reafforestation (Code) Regulation 2001 (NSW); Wind Farms Plan Amendment Report 2003 (SA), inserting objectives and principles into local area development plans — issued under the Development Act 1993 (SA) pt 3 div 2 — to encourage and guide wind farm development.
[190] See House of Representatives Standing Committee on Science and Innovation, Parliament of Australia, Between a Rock and a Hard Place: The Science of Geosequestration (2007) 25 <http://www.aph.gov.au/house/committee/scin/geosequestration/report/fullreport.pdf> .
[191] Bert Metz et al (eds), Working Group III, IPCC, IPCC Special Report on Carbon Dioxide Capture and Storage (2005) 44 <http://www.ipcc.ch/pdf/special-reports/srccs/srccs_
wholereport.pdf>.
[192] For an outline of the Australian Government’s involvement in the area, see Department of the Environment, Water, Heritage and the Arts, Australian Government, Carbon Dioxide Capture and Storage (3 December 2008) <http://www.environment.gov.au/settlements/industry/
ccs/index.html>.
[193] Ministerial Council on Mineral and Petroleum Resources, Carbon Dioxide Capture and Geological Storage — Australian Regulatory Guiding Principles (2005) <http://www.ret.gov.au/
resources/Documents/ccs/CCS_Aust_Regulatory_Guiding_Principles.pdf>.
[194] Greenhouse Gas Geological Sequestration Act 2008 (Vic).
[195] Department of Primary Industries, Victorian Government, ‘A Regulatory Framework for the Long‑Term Underground Geological Storage of Carbon Dioxide in Victoria’ (Discussion Paper, 2008) <http://www.dpi.vic.gov.au/DPI/dpinenergy.nsf/LinkView/E3451377DF5BCEEDCA2573
D0001A7241866B51F390263BA1CA2572B2001634F9>.
[196] See generally Australian Building Codes Board, Building Code of Australia (2008 ed, first published 1996) vol 1, 437–531; Australian Building Codes Board, Building Code of Australia (2008 ed, first published 1996) vol 2, 499–553.
[197] For details of the requirements applicable in each state and territory, see House Energy Rating, The Energy Rating Process <http://www.houseenergyrating.com/assessor.htm> .
[198] Building Commission Victoria, ‘Residential Sustainability Measures’ (Practice Note No 2008‑55, 2008) 1 <http://www.sustainability.vic.gov.au/resources/documents/BC_Practice
Notes2008-551.pdf>. Similar provisions have been adopted in the ACT, South Australia and Western Australia.
[199] Provisions relating to classes 2–4 buildings were introduced into the Building Code of Australia in 2005: Australian Building Codes Board, Building Code of Australia (2005 ed, first published 1996) vol 1, 791–3, 795–6. Provisions relating to classes 5–9 buildings followed in 2006: Australian Building Codes Board, Building Code of Australia (2006 ed, first published 1996) vol 1, 839; Australian Building Codes Board, ‘New Energy Efficiency Measures for Buildings’ (Press Release, 25 November 2005) <https://www.abcb.gov.au/index.cfm?objectid=FDB49898-9938-C0FE-60A5BFDF2C296CF5>.
[200] See Australian Building Codes Board, Building Code of Australia, vol 1, above n 195, 437–48; Australian Building Codes Board, Building Code of Australia, vol 2, above n 195, 501–26.
[201] See further Department of the Environment, Water, Heritage and the Arts, Australian Government, Overview of Regulatory Requirements — Labelling and MEPS (6 January 2009) www.energyrating.gov.au <http://www.energyrating.gov.au/man1.html> .
[202] See Lyster and Bradbrook, above n 24, 177–8.
[203] See, eg, Department of the Environment, Water, Heritage and the Arts, Australian Government, Overview of Regulatory Requirements, above n 200.
[204] Lyster and Bradbrook, above n 24, 175–7.
[205] This is not to say that adaptation to climate change has been neglected by international, federal or state regulatory authorities. Nevertheless, the allocated funding tends to be modest when compared with that made available for mitigation efforts, and much of the adaptation activity at the national/state level has been focused on vulnerability assessment and research rather than action: Jan McDonald, ‘The Adaptation Imperative: Managing the Legal Risks of Climate Change Impacts’ in Tim Bonyhady and Peter Christoff (eds), Climate Law in Australia (2007) 124, 128.
[207] McDonald, ‘The Adaptation Imperative’, above n 204, 124.
[209] McDonald, ‘The Adaptation Imperative’, above n 204, 134. Actions in tort brought against public authorities raise a number of complex issues which are beyond the scope of this article, but see generally Susan Kneebone, Tort Liability of Public Authorities (1998).
[210] For a case study of measures introduced by the Byron Shire Council in NSW, see McDonald, ‘The Adaptation Imperative’, above n 204. McDonald also provides an overview of Queensland policies and measures: Jan McDonald, ‘A Risky Climate for Decision-Making: The Liability of Development Authorities for Climate Change Impacts’ (2007) 24 Environmental and Planning Law Journal 405, 407–10.
[211] [2006] QPEC 95; [2007] QPELR 58.
[212] Ibid 60–2 (Brabazon DCJ).
[213] Redland Shire Strategic Plan 1998 (Qld) para 4.4.3 <http://www.redland.qld.gov.au/Site
CollectionDocuments/_RSC/RSC%20Documents/Planning/Strategic%20Plan%20-%20Gazetted
%20Feb%201998.pdf>.
[214] Charles & Howard Pty Ltd v Redland Shire Council [2007] QCA 200; (2007) 159 LGERA 349, 359 (McMurdo P).
[215] (2007) 157 LGERA 124, 132 (Biscoe J).
[216] Ibid 191.
[217] Ibid.
[218] Ibid.
[219] Ibid (citations omitted).
[220] Ibid 192 (Biscoe J).
[221] Minister for Planning v Walker [2008] NSWCA 224; (2008) 161 LGERA 423, 450–4 (Hodgson J). Campbell and Bell JA agreed: at 455.
[222] Ibid 454 (Hodgson J). Campbell JA agreed: at 455. Bell JA reserved her opinion on this aspect: at 455.
[223] Ibid 454–5 (Hodgson J). Campbell JA agreed: at 455. Bell JA reserved her opinion on this aspect: at 455.
[224] [2008] VCAT 1545 (Unreported, Gibson DP and Member Potts, 29 July 2008).
[225] Ibid [45].
[226] Ibid [42].
[227] McDonald, ‘A Risky Climate for Decision-Making’, above n 209, 406.
[228] Climate change litigation has been particularly important in the US, where the federal administration has failed to take mandatory action to address climate change impacts. For reviews of the case law, see Justin R Pidot, Georgetown Environmental Law & Policy Institute, Global Warming in the Courts: An Overview of Current Litigation and Common Legal Issues (2006) <http://www.law.georgetown.edu/gelpi/current_research/documents/GlobalWarmingLit_CourtsReport.pdf> Lyster, ‘Chasing Down the Climate Change Footprint’ (Pt 1), above n 45, 301–4.
[229] Bonyhady and Christoff, above n 5, 3.
[230] This has been the route pursued in many of the cases in the US. For a recent, albeit unsuccessful, example involving an action in nuisance brought by the State of California against six leading US and Japanese car manufacturers, see California v General Motors Corporation, No C06-05755 MJJ (ND Cal, 17 September 2007).
[231] Detailed reviews of the factual backgrounds and findings in these cases have been undertaken elsewhere: see, eg, Walker (2007) 157 LGERA 124, 181–5 (Biscoe J); Jacqueline Peel, ‘The Role of Climate Change Litigation in Australia’s Response to Global Warming’ (2007) 24 Environmental and Planning Law Journal 90; Joseph Smith and David Shearman, Climate Change Litigation: Analysing the Law, Scientific Evidence & Impacts on the Environment, Health and Property (2006); Lyster, ‘Chasing Down the Climate Change Footprint’ (Pt 1), above n 45,
304–9; Fisher, ‘The Statutory Relevance of Greenhouse Gas Emissions’, above n 23, 226–35; Charles Berger, ‘Hazelwood: A New Lease on Life for a Greenhouse Dinosaur’ in Tim Bonyhady and Peter Christoff (eds), Climate Law in Australia (2007) 161; David Farrier, ‘The Limits of Judicial Review: Anvil Hill in the Land and Environment Court’ in Tim Bonyhady and Peter Christoff (eds), Climate Law in Australia (2007) 189; Judith Jones, ‘Global or Local Interests? The Significance of the Taralga Wind Farm Case’ in Tim Bonyhady and Peter Christoff (eds), Climate Law in Australia (2007) 262; Chris McGrath, ‘The Xstrata Case: Pyrrhic Victory or Harbinger?’ in Tim Bonyhady and Peter Christoff (eds), Climate Law in Australia (2007) 214; Anna Rose, ‘Gray v Minister for Planning: The Rising Tide of Climate Change Litigation in Australia’ [2007] SydLawRw 28; (2007) 29 Sydney Law Review 725; Kirsty Ruddock, ‘The Bowen Basin Coal Mines Case: Climate Law in the Federal Court’ in Tim Bonyhady and Peter Christoff (eds), Climate Law in Australia (2007) 173; McGrath, ‘Regulating Greenhouse Gas Emissions from Australian Coal Mines’, above n 120, 248–54.
[232] The NSWLEC also heard an early case raising issues of GHG emissions in Greenpeace Australia Ltd v Redbank Power Co Pty Ltd (1994) 86 LGERA 143.
[233] [2004] VCAT 2029; (2004) 140 LGERA 100.
[234] [2006] NSWLEC 720; (2006) 152 LGERA 258.
[235] [2006] FCA 736; (2006) 232 ALR 510.
[237] [2007] NSWLEC 59; (2007) 161 LGERA 1.
[238] [2007] NSWLEC 490; (2007) 158 LGERA 349.
[239] [2007] QLRT 33 (Unreported, Koppenol P, 15 February 2007).
[240] [2007] QCA 338; (2007) 155 LGERA 322.
[241] Tim Bonyhady, ‘The New Australian Climate Law’ in Tim Bonyhady and Peter Christoff (eds), Climate Law in Australia (2007) 8, 20–4.
[242] This is so even though such consideration may not import a precise obligation, for example, to consider a quantitative assessment of GHG emissions: see Drake-Brockman [2007] NSWLEC 490; (2007) 158 LGERA 349, 387–8 (Jagot J).
[243] Bonyhady, above n 240, 13.
[244] Ian Thomas and Mandy Elliott, Environmental Impact Assessment in Australia: Theory & Practice (4th ed, 2005) 140.
[245] Farrier, ‘The Limits of Judicial Review’, above n 230, 189.
[246] Ibid 208 fn 4.
[247] Ibid 203.
[248] Booth v Bosworth [2001] FCA 1453; (2001) 114 FCR 39, 65 (Branson J).
[249] The lack of such evidence was a problem in Thornton (2006) 151 LGERA 1, 13 (Trenorden J, Mosel and Agnew CC) in considering the approval given to a coal-fired boiler.
[250] Hazelwood [2004] VCAT 2029; (2004) 140 LGERA 100, 110.
[251] Anvil Hill [2006] NSWLEC 720; (2006) 152 LGERA 258, 275.
[252] Ibid 284–8.
[253] Ibid 287.
[254] Ibid.
[255] Ibid 288.
[256] 549 US 497, 523–5 (Stevens J for Stevens, Kennedy, Souter, Ginsburg and Breyer JJ) (2007). Roberts CJ, with whom Scalia, Thomas and Alito JJ joined, dissented: at 542–5.
[257] Ibid 525 (Stevens J for Stevens, Kennedy, Souter, Ginsburg and Breyer JJ).
[258] Ibid 526.
[259] See also Xstrata (first instance) [2007] QLRT 33 (Unreported, Koppenol P, 15 February 2007) [12]; Anvil Hill Project Watch Association Inc v Minister for the Environment and Water Resources [2007] FCA 1480; (2007) 243 ALR 784, 794 (Stone J).
[260] Wildlife Whitsunday [2006] FCA 736; (2006) 232 ALR 510, 524 (Dowsett J).
[261] See, eg, Environmental Effects Act 1978 (Vic).
[262] Lyster, ‘Chasing Down the Climate Change Footprint’ (Pt 1), above n 45, 306 (citations omitted).
[263] McGrath, ‘Regulating Greenhouse Gas Emissions from Australian Coal Mines’, above n 120, 241.
[264] See above Part III(B)(3)(a).
[265] Minister for Environment and Heritage v Queensland Conservation Council Inc (2004) 139 FCR 24, 40 (Black CJ, Ryan and Finn JJ). On the issue of indirect impacts, see generally Peel and Godden, ‘Australian Environmental Management’, above n 146, 682–9.
[266] [2004] VCAT 2029; (2004) 140 LGERA 100, 109 (emphasis added).
[267] Ibid. See also Anvil Hill [2006] NSWLEC 720; (2006) 152 LGERA 258, 285–6 (Pain J).
[268] See Lee Godden and Jacqueline Peel, ‘The Environment Protection and Biodiversity Conservation Act 1999 (Cth): Dark Sides of Virtue’ [2007] MelbULawRw 5; (2007) 31 Melbourne University Law Review 106, 128–31.
[269] [2006] NSWLEC 720; (2006) 152 LGERA 258, 293 (Pain J).
[270] [2007] FCA 1480; (2007) 243 ALR 784. An appeal against this decision on unrelated grounds was dismissed by the Full Federal Court in Anvil Hill Project Watch Association Inc v Minister for the Environment and Water Resources [2008] FCAFC 3; (2008) 166 FCR 54.
[271] Anvil Hill Project Watch Association Inc v Minister for the Environment and Water Resources [2007] FCA 1480; (2007) 243 ALR 784, 795.
[272] Ibid.
[273] Bonyhady, above n 240, 19–20.
[274] For a list of statutes with ESD objectives, see Jacqueline Peel, ‘Ecologically Sustainable Development: More than Mere Lip Service?’ (2008) 12 Australasian Journal of Natural Resources Law and Policy 1, 27–34.
[275] Intergovernmental Agreement on the Environment (1992) s 3.5. See also the guiding principles of the Ecologically Sustainable Development Steering Committee, National Strategy for Ecologically Sustainable Development (1992) 8.
[276] See generally Jacqueline Peel, The Precautionary Principle in Practice: Environmental Decision‑Making and Scientific Uncertainty (2005).
[277] In addition to Anvil Hill [2006] NSWLEC 720; (2006) 152 LGERA 258 and Taralga [2007] NSWLEC 59; (2007) 161 LGERA 1, discussed below in Parts III(E)(3)(a)–(b), see also Hazelwood [2004] VCAT 2029; (2004) 140 LGERA 100, 109 (Morris J); Thornton (2006) 151 LGERA 1, 12–13 (Trenorden J, Mosel and Agnew CC).
[278] [2006] NSWLEC 720; (2006) 152 LGERA 258.
[279] Ibid 291.
[280] Thomas and Elliott, above n 243, 10.
[281] Anvil Hill [2006] NSWLEC 720; (2006) 152 LGERA 258, 293 (Pain J).
[282] Ibid.
[283] Ibid.
[284] Ibid 294.
[285] Ibid 295–6.
[286] Ibid 296.
[287] Ibid 296–7.
[288] Annette Hughes and Julie-Anne Pearce, Allens Arthur Robinson, Climate Change Litigation — Environmental Impact Assessment Must Properly Address Greenhouse Gas Emissions (December 2006) Focus: Corporate Responsibility <http://www.aar.com.au/pubs/ldr/focrdec06.htm> .
[289] Anvil Hill [2006] NSWLEC 720; (2006) 152 LGERA 258, 297.
[290] Hughes and Pearce, above n 287.
[291] Indeed, Pain J stressed that even where uncertainties make it difficult to quantify an impact with precision, this does not relieve the obligation to make a credible attempt at assessment: Anvil Hill [2006] NSWLEC 720; (2006) 152 LGERA 258, 297.
[293] Taralga [2007] NSWLEC 59; (2007) 161 LGERA 1, 15–17 (Preston CJ).
[294] Ibid 3.
[295] Ibid.
[296] Ibid 12.
[297] Ibid.
[298] Ibid 3.
[299] Ibid.
[300] Ibid 3–4.
[301] See the conditions of consent set out in Annexure A to the judgment: Taralga Landscape Guardians Inc v Minister for Planning [2007] NSWLEC 59 (12 February 2007) <http://www.
austlii.edu.au/au/cases/nsw/NSWLEC/2007/59.html>.
[302] See above Part III(E)(1).
[303] Wildlife Whitsunday [2006] FCA 736; (2006) 232 ALR 510, 524.
[304] Ibid.
[305] Xstrata (first instance) [2007] QLRT 33 (Unreported, Koppenol P, 15 February 2007) [21] (citations omitted).
[306] Ibid [16]–[18].
[307] Ibid [17]. For a critique of Koppenol P’s methodology, see Xstrata (appeal) [2007] QCA 338; (2007) 155 LGERA 322, 341–2 (Mackenzie J).
[308] Xstrata’s arguments were limited to the extent of contribution made by its proposed mines to global warming, arguing that this contribution was relatively small: see Xstrata (first instance) [2007] QLRT 33 (Unreported, Koppenol P, 15 February 2007) [12], [14].
[309] Xstrata (appeal) [2007] QCA 338; (2007) 155 LGERA 322, 338 (McMurdo P), 342 (Mackenzie J).
[310] See Mining and Other Legislation Amendment Act 2007 (Qld).
[311] See above nn 255–7 and accompanying text.
[312] Massachusetts v Environmental Protection Agency, 549 US 497, 525 (Stevens J for Stevens, Kennedy, Souter, Ginsburg and Breyer JJ) (2007).
[313] See Bonyhady, above n 240, 26–7.
[314] Bonyhady notes that a critical factor has been the involvement of the national network of Environmental Defenders Offices working with counsel, who often act pro bono: ibid 11.
[315] See, eg, Administrative Decisions (Judicial Review) Act 1977 (Cth) ss 5–7, 13.
[316] Godden and Peel, ‘The Environment Protection and Biodiversity Conservation Act 1999 (Cth)’, above n 267, 138–9.
[317] EPBC Act ss 475(6)–(7), 487.
[318] Neil Gunningham and Darren Sinclair, ‘New Generation Environmental Policy: Environmental Management Systems and Regulatory Reform’ [1998] MelbULawRw 27; (1998) 22 Melbourne University Law Review 592, 607.
[319] For a discussion of community–government partnerships of this kind, see Rosemary Lyster, ‘(De)regulating the Rural Environment’ (2002) 19 Environmental and Planning Law Journal 34, 41–8.
[320] See generally Neil Gunningham and Amanda Cornwall, ‘Legislating the Right to Know’ (1994) 11 Environmental and Planning Law Journal 274.
[321] These forms of regulation are extensively discussed in Neil Gunningham, Peter Grabosky and Darren Sinclair, Smart Regulation: Designing Environmental Policy (1998).
[322] See generally Karen Bubna-Litic, ‘Climate Change and Corporate Social Responsibility: The Intersection of Corporate and Environmental Law’ (2007) 24 Environmental and Planning Law Journal 253.
[323] Lyster, ‘Chasing Down the Climate Change Footprint’ (Pt 1), above n 45, 309–20.
[324] For instance, the requirements for annual directors’ reports extend to reporting on environmental matters: Corporations Act 2001 (Cth) s 299(1)(f).
[325] See, eg, the recently launched International Organization for Standardization (‘ISO’) standards for GHG accounting and verification, which is part of the ISO 14 000 series adopted by many companies as the basis for their environmental management systems: ISO, ‘Greenhouse Gases — Part 1: Specification with Guidance at the Organization Level for Quantification and Reporting of Greenhouse Gas Emissions and Removals’ (ISO 14064-1:2006); ISO, ‘Greenhouse Gases — Part 2: Specification with Guidance at the Project Level for Quantification, Monitoring and Reporting of Greenhouse Gas Emission Reductions or Removal Enhancements’ (ISO 14064‑2:2006); ISO, ‘Greenhouse Gases — Part 3: Specifications with Guidance for the Validation and Verification of Greenhouse Gas Assertions’ (ISO 14064‑3:2006).
[326] See above n 60 and accompanying text.
[327] Fuel Tax Act 2006 (Cth) s 45-5.
[328] See, eg, Daniel J Fiorino, The New Environmental Regulation (2006) 19–21.
[329] For a discussion, see Neil Gunningham, Robert A Kagan and Dorothy Thornton, Shades of Green: Business, Regulation, and Environment (2003) 146–53.
[330] Fiorino, above n 327, 11; Gunningham and Sinclair, ‘New Generation Environmental Policy’, above n 317.
[331] See, eg, a series of articles on non-point source pollution: Neil Gunningham and Darren Sinclair, ‘Curbing Non-Point Pollution: Lessons for the Swan-Canning’ (2004) 21 Environmental and Planning Law Journal 181; Neil Gunningham and Darren Sinclair, ‘Policy Instrument Choice and Diffuse Source Pollution’ (2005) 17 Journal of Environmental Law 51; Neil Gunningham and Darren Sinclair, ‘Regulating Water Pollution from Light Industry: Lessons from the Swan‑Canning’ (2005) 22 Environmental and Planning Law Journal 328.
[332] These challenges must also be faced in the broader field of environmental law as I elaborate in a forthcoming book on the subject co-authored with Professor Lee Godden: see Lee Godden and Jacqueline Peel, Environmental Law: Scientific, Policy and Regulatory Dimensions (2009, forthcoming).
[333] This is due to the global mixing of CO2 in the upper atmosphere: see Kazuyuki Miyazaki et al, ‘Global‑Scale Transport of Carbon Dioxide in the Troposphere’ (2008) 113 Journal of Geophysical Research D15301.
[334] Opened for signature 9 May 1992, 1771 UNTS 107, art 2 (entered into force 21 March 1994).
[335] Sands, above n 2, 71–2, 360–1.
[336] See generally Farhana Yamin, ‘The Kyoto Protocol: Origins, Assessment and Future Challenges’ (1998) 7 Review of European Community & International Environmental Law 113.
[337] The IPCC has indicated that cuts of between 50–85 per cent below 2000 levels by 2050 will be necessary to stabilise GHG concentrations at safe levels: IPCC, above n 9, 20.
[338] Christopher L Weber, China’s Export Trade Impacts Climate (30 July 2008) ScienceDaily <http://www.sciencedaily.com/releases/2008/07/080729142524.htm> .
[339] Green Paper, above n 88, 336–8.
[340] Garnaut Review, above n 4, 285.
[341] Philippe Sands and Jacqueline Peel, ‘Environmental Protection in the Twenty‑First Century: Sustainable Development and International Law’ in Regina S Axelrod, David Leonard Downie and Norman J Vig (eds), The Global Environment: Institutions, Law, and Policy (2nd ed, 2005) 43, 48–50.
[342] See generally John Taberner, Nicholas Brunton and Lisa Mather, ‘The Development of Public Participation in Environmental Protection and Planning Law in Australia’ (1996) 13 Environmental and Planning Law Journal 260.
[343] John S Dryzek, The Politics of the Earth: Environmental Discourses (2nd ed, 2005) 9. However, certain principles of ESD, such as the intergenerational equity principle, the polluter pays principle and the precautionary principle, provide important objectives against which to evaluate these perspectives.
[344] See, eg, the discussion of natural justice in Xstrata (appeal) [2007] QCA 338; (2007) 155 LGERA 322, 335–8 (McMurdo P), 342 (Mackenzie J).
[345] See generally Helle Tegner Anker, ‘Integrated Resource Management — Lessons for Europe?’ (2002) 11 European Environmental Law Review 199; Jeffrey A Sayer and Bruce M Campbell, ‘Research to Integrate Productivity Enhancement, Environmental Protection, and Human Development’ in B M Campbell and J A Sayer (eds), Integrated Natural Resource Management: Linking Productivity, the Environment and Development (2003) 1; Resource Assessment Commission, ‘Coastal Zone Inquiry: Integrated Resource Management in Australia’ (Information Paper No 6, 1993); D Scott Slocombe and Kevin S Hanna, ‘Integration in Resource and Environmental Management’ in Kevin S Hanna and D Scott Slocombe (eds), Integrated Resource and Environmental Management: Concepts and Practice (2007) 1.
[346] Pleas for integrated management have been made in many areas of environmental law: see, eg, David Farrier, ‘Fragmented Law in Fragmented Landscapes: The Slow Evolution of Integrated Natural Resource Management Legislation in NSW’ (2002) 19 Environmental and Planning Law Journal 89.
[347] See, eg, John Cairns Jr, ‘The Need for Integrated Environmental Systems Management’ in John Cairns Jr and Todd V Crawford (eds), Integrated Environmental Management (1991) 5, 6; Richard Grant and Elim Papadakis, ‘Transforming Environmental Governance in a “Laggard” State’ (2004) 21 Environmental and Planning Law Journal 144.
[348] For example, in the US the Union of Concerned Scientists, representing more than 200 000 scientists and citizens, recommends cuts of at least 70–80 per cent below 2000 levels by 2050 in order to avoid dangerous climate change: Union of Concerned Scientists, A Target for US Emissions Reductions (2008) Union of Concerned Scientists: Citizens and Scientists for Environmental Solutions — Global Warming <http://www.ucsusa.org/global_warming/science/
emissionstarget.html>.
[349] The issue of integration across different environmental sectors is a vexed one given the traditional approach of the law to divide the environment into segments such as water, forests, endangered species, and so on.
[350] The relevant case law is discussed in Peel and Godden, ‘Australian Environmental Management’, above n 146, 670–5.
[351] See Intergovernmental Agreement on the Environment (1992) ss 2.2–2.3.
[352] Bonyhady, above n 240, 24. Bonyhady is no more sanguine about the performance of state governments: at 25.
[353] Ibid 26.
[354] Ibid.
[355] On the problem of lowest common denominator/race to the bottom standards in a federal system, see Kirsten H Engel, ‘State Environmental Standard-Setting: Is There a “Race” and Is It “To the Bottom”?’ (1997) 48 Hastings Law Journal 271; Joshua D Sarnoff, ‘The Continuing Imperative (but Only from a National Perspective) for Federal Environmental Protection’ (1997) 7 Duke Environmental Law & Policy Forum 225. Cf Richard L Revesz, ‘Rehabilitating Interstate Competition: Rethinking the “Race-to-the-Bottom” Rationale for Federal Environmental Regulation’ (1992) 67 New York University Law Review 1210.
[356] COAG, Agreement on Murray-Darling Basin Reform (2008) <http://www.coag.gov.au/coag_
meeting_outcomes/2008-07-03/docs/Murray_Darling_IGA.pdf>. See also the Water Amendment Act 2008 (Cth), which amends the Water Act 2007 (Cth) to give effect to the Agreement.
[357] For instance, the COAG Working Group on Climate Change and Water has released a consultation paper on the design of a revised renewable energy target: see COAG Working Group on Climate Change and Water, above n 73.
[358] Peter N Grabosky, ‘Governing at a Distance: Self-Regulating Green Markets’ in Robyn Eckersley (ed), Markets, the State and the Environment: Towards Integration (1995) 197, 202.
[359] For a strong argument in favour of market-based mechanisms in environmental regulation, see Bruce A Ackerman and Richard B Stewart, ‘Reforming Environmental Law’ (1985) 37 Stanford Law Review 1333.
[360] Bonyhady, above n 240, 26.
[361] See, eg, Stephen Dovers, ‘Adaptive Policy, Institutions and Management: Challenges for Lawyers and Others’ [1999] GriffLawRw 22; (1999) 8 Griffith Law Review 374.
[362] See, eg, Integrated Planning Act 1997 (Qld). See further Philippa England, Integrated Planning in Queensland (2nd ed, 2004).
[363] See, eg, Stephen Dovers and Robin Connor, ‘Institutional and Policy Change for Sustainability’ in Benjamin J Richardson and Stepan Wood (eds), Environmental Law for Sustainability: A Reader (2006) 21.
[364] This might be modelled along the lines of the former Resource Assessment Commission that advised the Commonwealth government on various matters pertaining to the implementation of sustainable development: see generally Resource Assessment Commission Act 1989 (Cth) (repealed).
[365] Garnaut Review, above n 4, xviii.
[366] Bonyhady, above n 240, 27.
[367] Lyster, ‘Chasing Down the Climate Change Footprint’ (Pt 1), above n 45, 285.