A perspective on the climate negotiations at Durban

The path agreed upon at Durban is much the same as the path the world has been heading at least since Bali. We have known that the successor to the Kyoto protocol will be an ‘all-in’ agreement, with all nations taking on some responsibility to reduce emissions. Insofar as the nations within the UNFCCC all remain committed to reducing emissions we should be considering the outcome a positive one.

However, not much progress can be seen in the words negotiated at Durban on the important matter of what agreement will be reached about future emissions reductions. Certainly there is no clarity about the obligations that will be imposed on nations with the most advanced economies and those nations with emerging economies in a future agreement. In particular, the world has not agreed on what is fair for developed nations to expect of developing nations and how much responsibility developed nations should take for their past carbon excesses.

But there is clear progress nonetheless. This is particularly evident if you look at the lead protagonists. Australia has forgone its role as the churlish spoiler, despite the fact that it remains steadfastly supportive of the US and entrenched in the Umbrella Group of developed nations who operate as dampeners and delayers of progress.

The passage of the carbon price legislation means that our nation is no longer a frustration to global progress. And we were long a frustration. Durban has showed us that nations like China and India would not be put in the spotlight until countries like Australia committed to reduce its emissions. Compared to past meetings China, by all reports, appears to be have been less steadfast. It was India, whose voice has only started to be significant in negotiations as other polluting nations like Australia came on board, that spoke loudest in the end.

And from the US, you would not even know that the meeting was taking place. Global negotiations on emissions reductions seems to have no traction with the media, with the current to-ings and fro-ings with the Republican nomination and European financial crisis entrenched in the news.

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This comment was written for and published by The Conversation under the title: Global climate change pact in Durban: expert comment.

Dragging coal through the courts: an alternative emissions-reduction strategy

The bill creating the carbon price has passed through Parliament. However, the campaigning efforts of the environmental lobby will not pause. More than ever, the coal industry is in its sights, with court cases against XStrata in Queensland and HRL in Victoria now underway.

Getting regional Victoria’s Hazelwood power station closed is a potential prize from the cross-party climate deal that gave us the climate price. But it will not realise campaigners’ ultimate goal of a carbon-neutral economy.

Environmentalists know that they have achieved all that they can for the moment through the legislature. For decades, politicians’ attention has been captured by Australia’s most greenhouse intensive industries. Throughout the carbon debates, environmentalists have not been able to avert that attention.

Recommendations were made for legislative reform that would institute a greenhouse gas trigger for environmental assessments under the Environment Protection and Biodiversity Conservation Act, but these have been ignored or rejected. The Gillard government has been convinced by the yet-to-be proven argument that a market mechanism – the emissions trading scheme – will curtail emissions-intensive industrial developments as effectively as scrutinising, evaluating or simply prohibiting them.

The courts are the next stage for the environmentalists’ battle against coal.

Past efforts at halting coal mining activities and power generation activities through the courts have been unsuccessful. Australian courts and tribunals have held that in some circumstances, decision-makers must consider the greenhouse gas emissions from coal-fired power in deciding whether to approve coal mines and power stations.

But these decisions have not stopped projects. They have simply required ministers to explicitly preference the promised economic windfalls from coal mines and power stations over environmental objectives.

Most notably, the Federal Court has twice rejected challenges to New South Wales and Queensland coal mines. The court was not satisfied that there is a sufficient link between localised burning of coal and climate change to prove that carbon emissions could have “significant impacts” on the Australian environment, particularly on ecosystems like wetlands and reefs, which are highly vulnerable to sea level height and temperature change.

Two cases currently before state courts and tribunals take a different legal approach. Environmental groups have joined with sympathetic lawyers to bring suits against coal that will subject the coal projects to merits assessment.

In Queensland, a decision of the Land Court is imminent in the case between Friends of the Earth and Xstrata in relation to the Wandoan coal mine.

This case is not simply a challenge to the environment or planning approval for the project. Rather, the environment group is also seeking to prevent the grant of the mining tenure required by Xstrata. They are arguing that the coal mine, which will be Australia’s largest and will principally service the export market, will indirectly and notably contribute to climate impacts that are “irreversible, of a high impact and widespread”.

Under the relevant law, the Friends of the Earth must convince the court that the adverse impacts of the mine are of such a magnitude to justify its rejection. It is a case that has parallels with the long-fought battle against sand mining on Fraser Island, which started in the Mining Warden’s Court of Queensland in the early 1970s and made its way to the High Court.

In Victoria, a group of environmental objectors, most publicly led by Environment Victoria, are party to a current Victorian Civil and Administrative Tribunal case. It concerns the works approval the Environment Protection Authority gave a combined coal- and gas-fired power plant proposed for Victoria’s Latrobe Valley.

The legal question for the tribunal is whether this project, characterised by the proponent as a clean coal alternative to the status quo, is “best practice” to manage greenhouse gas emissions. Does polluting less than the typical coal-fired power station – but far more than generation from gas or renewables – correspond with best practice standards?

The tribunal’s finding will be significant because it will also inform us whether Victoria’s new Climate Change Act, which must be considered in this case, actually stands for something.

Regardless of the outcomes of these cases, court battles between coal companies and environmentalists will continue. Legal alliances are being formed. Landholders, like those in Bacchus Marsh close to Melbourne, have been emboldened by the coal seam gas outrage initiated by farmers throughout New South Wales and Queensland and appear likely to join the fold.

Proposals to halt new or expanded coal developments will be opposed. Existing facilities, like Delta Electricity’s Lithgow plant – the subject of community-initiated court claims over pollution – will be scrutinised. The battle is important because it might just change public sentiment and government opinion about the future of coal in Australia.

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This article was written for and originally published by The Conversation.

So much for a fair go: Kyoto protocol lets Australia offload climate responsibility

If climate change ever was in equal part a moral, economic and environmental challenge, then it is no longer so. Morality has fallen from attention.

The economists have long dominated the climate change discourse. Ross Garnaut set Australia firmly on this course in 2007 and has reminded us of the priority we continue to place on the economics of climate change through the recent release of his final report.

The science of climate change, like the recently published report of the Climate Commission, is now used to support a chosen economic policy of Australia’s federal government.

Even the environmental movement is focusing on the opportunities of “change”. Half of the speakers in the recent ‘Say Yes’ television advertising campaign spoke of economic and financial changes that will result from Australia’s current proposed response to climate change.

The strategy seems to be to downplay the environmental imperative.

Meanwhile, the morality of climate change remains the domain of the academy, the occasional public thinker and the personally anguished.

Only rarely now are Australians reminded about the need to contribute a “fair share” to climate change strategies. However, fairness and the morality of our efforts will soon come into focus. This will particularly happen if Australia adopts an emissions trading scheme, as the government intends after a three-year carbon tax.

The Clean Development Mechanism under the Kyoto Protocol allows countries with international law obligations to limit greenhouse gas emissions to fund projects, like gas plants or wind farms, in developing countries and take the credited emission reductions for themselves.

Most of these projects have so far occurred in China and India but there is scope and likelihood of these projects occurring more widely.

The Joint Implementation program, also under the Kyoto Protocol, allows the same sort of projects to be funded in other countries that have international obligations to reduce emissions but whose economies may be weaker.

These so-called “flexibility mechanisms” allow countries like Australia to reduce greenhouse gas emissions most cheaply in foreign countries. They have the supposed added benefit of increasing the livelihoods of communities in less-developed parts of the world.

The mechanisms are firmly entrenched and are unlikely to disappear from the legal landscape any time soon. They are also largely unchallenged domestically.

The defeated Carbon Pollution Reduction Scheme Bill, for instance, would have allowed companies to meet their emissions reduction obligations at the lowest cost from whereever in the world they could do so. Last week Garnaut told us that his proposed floating price for carbon “will assist in allowing emissions reductions to take place where they are cheapest”.

However, are these mechanisms fair, and do they actually realise environmental and community benefits? The evidence so far suggests that they are not.

Often the projects are proponent-driven and occur outside of a comprehensive climate change framework. They are set up in places without stringent environmental laws and without the participation of locals. These people will bear the burden of the development but are supposed to benefit from this form of “sustainable development”.

The projects might not even be the ones the developing country wants – or most needs. Reports from the World Bank indicate that any development benefits and capacity building have been low.

Most problematic, though, is that while these projects are allocated a notional emissions reduction figure, most of the time we do not really know if they actually reduce emissions.

What we do know, however, is that as a consequence this notional figure of emissions will not be achieved in the developer’s country, like Australia. And any real emissions reductions can never be claimed by the developing country because they cannot be counted twice.

If the international community wants to retain this system it should change it.

Comprehensive national strategies that clarify emissions profiles and outline the development and energy needs and priorities of communities ought to be a pre-condition. As an international community we should, first and foremost, listen.

Accordance with robust environmental practice even when the local law does not require it should be mandated.

Finally, at least part of the realised emissions should be banked for the future benefit of the developing nation. That’s just fair.

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This article was written for and originally published by The Conversation.

Privatising environmental regulation – the Wonthaggi desalination plant and the EPA

Victoria’s Environment Protection Authority (EPA) has barely had a positive word said about it over recent years. Since 2009, particularly following its handling of the landfill gas leak near Cranbourne, it has been criticised by the Victorian Ombudsman, the Auditor-General, and in February 2011 by a consultant commissioned by the agency to review its compliance and enforcement regime. The EPA is nevertheless upbeat about its function, with its Chair commenting: “in the face of criticism over recent years, [the] EPA has committed to re-establishing itself as the State’s environmental regulator”.

Contractual documents relating to the environmental performance of the Wonthaggi desalination plant, however, suggest that the previous Brumby Government was not as confident in the EPA’s ability to monitor the environmental compliance of one of Victoria’s most expensive and controversial projects.

Those documents reveal that the State and the future operators of the desalination plant have negotiated a private, contractual environmental regulatory regime. The regime is similar in structure to the arrangements that the State has with its metropolitan private transport operators. Failure to meet certain standards, in this instance environmental quality standards rather than public transport punctuality targets, is penalised with financial deductions from the monthly operating fee that the State pays for desalinated water.

In some ways this development reflects the current trend towards the privatisation of planning and environmental laws in Victoria. Last week the Minister for Planning was reported to have announced that the Baillieu Government will soon introduce laws that will allow property developers to self-regulate their projects in accordance with a code. This reform suggestion was made concurrently with a proposal that developers also be permitted to perform a role in the amendment of local Council planning schemes.

Under the private, and until recently secret, agreement between the State and the future desalination plant operators, a breach of an EPA operating licence will be subject to a $200,000 fee deduction (rising to $1 million if continuing for 14 days). The deductions are similar in amount to the penalties imposed by the Magistrates Court under the Environment Protection Act 1970 (Vic), but less than the maximum penalties permissible under the Act. For example, the maximum penalty for all but the most severe pollution offences under the Environment Protection Act 1970 (Vic) is $286,680 plus $143,340 for each continuing day (ie rising to a maximum penalty of more than $2.2 million after 14 days).

There is no term in the contract that indicates that this regime replaces or displaces the Environment Protection Act 1970 (Vic). The operator of the desalination plant will still, in theory, be subject to the same environmental laws as everyone else. This is implicit in the contractual term that states that any financial deduction for environmental non-compliance will be offset by any amount of fine or penalty it incurs under the State’s laws.

Further, the language used in the contract does not use the terminology of the Environment Protection Act 1970 (Vic). For instance, the contract refers to notions of ‘environmental harm’ and ‘significant environmental harm’, but these are not standards found in Victoria’s universal environmental criminal law regime. They have been taken from the laws of other States and Territories – including Tasmania, South Australia, Queensland and the Australian Capital Territory.

It is possible, therefore, that breaches of the contract that give rise to financial deductions will not necessarily amount to breaches of Victoria’s environmental laws.

If it proves to be the case that this contract-based environmental law regime is additive to the State’s environmental laws, then it will be an interesting and perhaps innovative evolution in environmental regulation. The concern, however, is that this private regime will not be additive, rather it will in effect replace the State’s universal and transparent criminal environmental law regime for the desalination plant. There is a strong likelihood that the contractual regime will be used in preference to the State’s criminal laws, at least in the first instance, because it will be much easier to administer, will be applied monthly, and it will not threaten ongoing operation of the plant like some of the provisions of the Environment Protection Act 1970 (Vic) allow. Finally, and significantly, this private regime might effectively displace universal criminal laws because the EPA has been so ineffective in enforcing its laws. The contract will give the Victorian Government an opportunity to intervene and penalise the desalination plant operator when the community demands it but when the EPA, as it did with the Shell Refinery in north Geelong, fails to do so.

There are benefits for the operators if this contractual regime becomes the preferred environmental law framework for the desalination plant. There will be no convictions attached to any non-compliance, little or no publication of reports of environmental degradation, no director liabilities for crimes committed, and no need to advertise offences in the paper or support local environmental initiatives (which are currently regularly used sentencing options by the Magistrates Court). There will be no baggage that the operators will be hamstrung by in future. It is also a very clinical and emotionless way to regulate the environment. Simply allow an operator to buy its way out of environmental difficulties.

Of course, irrespective of any arrangement between the previous Government and the future operators of the desalination plant, the EPA will have the power to fine, prosecute and shut down a polluting desalination plant. Whether it uses these powers as a State regular should, or whether persists with its approach of offering warnings and encouragement to industrial polluters, time will tell.