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.


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

Shifts in Victorian climate law and policy and the planning system

Since December 2008 Victoria’s climate policy framework has changed significantly. The changes have been driven by, and most readily observed within, the Victorian planning system. It has been these changes in Victoria and earlier elsewhere (particularly in NSW through decisions by the Land and Environment Court) that have given rise to a ‘new climate law’ in Australia.(1) In Victoria this new climate law especially prioritises consideration of all risks associated with coastal changes caused by global climate change.

Within Victoria a shift in the law can be traced to the decision of Justice Morris in the so-called Hazelwood case of 2004,(2) where Justice Morris held that greenhouse gas emission concerns raised by objectors could not be excluded from consideration by a panel inquiry. This decision was based firmly on a legalistic interpretation of the law, and not grounded in climate policy. Similarly, the landmark Gippsland Coastal Board decision in 2008(3) was based on a policy framework that did not appropriately deal with climate change risk. This is acknowledged by the Tribunal at para 35 where the members state that “the specific consideration of sea level rises, coastal inundation and the effects of climate change are not set out within the Victorian Planning Provisions”. At para 25 of the decision the Tribunal found no particular guidance on climate risks in the 2002 iteration of the Victorian Coastal Strategy.

These two decisions are especially celebrated because they were realised in the absence of planning policy dealing with climate change and because they have been instrumental in influencing the development of climate policy within Victoria generally and particularly in the planning system.

The changes to policy came with the December 2008 amendments to clause 15.08 of the Victorian Planning Provisions through planning scheme amendment VC52. These amendments give partial effect to the December 2008 Victorian Coastal Strategy, and are supported by other policy documents and Ministerial directions. With these new policy pronouncements Victorian decision-makers for the first time became required to think differently about coastal land decisions. Whereas in the past decision-makers had no obligation to factor in climate risks when faced with land use or development proposals by the coast, decision-makers must now countenance climate change risks and either attempt to protect development from those risks or “avoid development in identified coastal hazard areas”.(4) They cannot close their mind to the inevitability of erosion, inundation, landslip and geotechnical risk, and they must take a precautionary approach when evaluating risks and determining decisions.

These changes amount to a dramatic shift in approach, and their effect is apparent in the subsequent decisions of VCAT. Since 2008 there has been a series of VCAT decisions universally finding that proposed developments should not proceed because of climate risk, at least without coastal hazard vulnerability assessments first being undertaken. No case has found that development should proceed untested and uncertain as to risk. In one of the most recent cases Member Potts claimed that the broad sweep of policy that was instituted in late 2008(5) now means that decision-makers must be more cautious and mindful of the multiple impacts of climate change on coastal areas.

1 Tim Bonyhady, ‘The new Australian climate law’ in Tim Bonyhady and Peter Christoff (eds) Climate Law in Australia (2007) ch 2.
2 Australian Conservation Foundation v Latrobe City Council (2004) 140 LGERA 100.
3 Gippsland Coastal Board v South Gippsland Shire Council (No 2) [2008] VCAT 1545 (Unreported, Gibson DP and Potts M, 27 July 2008).
4 Clause 15.08-2 of the Victorian Planning Provisions.
5 See Taip v East Gippsland Shire Council [2010] VCAT 1222 (Unreported, Potts M, 28 July 2010) para 69.