Endings and Fairness: The Clean Energy Act 2011 (Cth) and Queensland Nickel

Originally published at Opinions on High, the Melbourne Law School High Court blog.

Australia’s first national laws to put a price on carbon were effective to their end; reportedly leading to reductions in Australia’s combined greenhouse gas emissions. In their absence it has been reported that increases in emissions have resumed. While our new Prime Minister grapples with how to rein in these emissions, the High Court last year confirmed that the carbon price laws were lawful, and through the prism of the Constitution fair, to their end. The history books will show, however, that politicians failed to make the case for a carbon price law, but they devised and crafted a successful, if complex though geographically unfair, legal policy. Over the past few days the protagonist in the High Court case, Queensland Nickel, with the business faltering, has brought claims of fairness into the political discourse around this business’ carbon intensive operations.

The Constitution and no interstate discrimination

In Queensland Nickel Pty Ltd v Commonwealth [2015] HCA 12, notable also as Nettle J’s first judgment, the High Court dismissed a claim by Queensland Nickel that regulations supporting the principal Act, the Clean Energy Act 2011 (Cth), were unconstitutional based on their geographic effect. Arguments relying on s 99 of the Constitution, the non-discrimination provision, that the regulations inadvertently and indirectly discriminated against the Queensland-based refinery business wholly owned by Clive Palmer MP, the federal parliamentary member for Fairfax, were rejected.

The High Court concluded that the additional financial liability imposed on Queensland Nickel relative to other refineries in Western Australia that triggered the case was not a cause of a difference or discrimination on the grounds of physical or jurisdictional geography but a result of past decisions made by Queensland Nickel on purely financial grounds. The effect of the laws as experienced by Queensland Nickel relative to its Western Australian competitors may have had an increased financial burden on Mr Palmer’s company, which has not been attributed to the company’s financial woes, but that burden was not attributable to the law; rather business decisions made by the company in its infancy.

In the High Court case, Nettle J adopted the plurality view in the Fortescue Metals case, and found that the particular parts of the carbon price regulation that set out liabilities for nickel refineries ‘did not discriminate between States. In terms, it applied equally to eligible persons carrying on the production of nickel regardless of the State of production’ (at [56]). Although Nettle J acknowledged a difference in practical effect of the laws for Queensland Nickel, he considered that ‘in this case it does not appear that any of the differences between the plaintiff’s and the Western Australian nickel producers’ inputs, production processes or outputs were due to differences between Queensland and Western Australia in natural, business or other circumstances’ (at [58]).

Instead, Nettle J focussed on past decisions about mining processes as giving rise to the different effect of the laws. The mining process adopted by Queensland Nickel was found to have been the reason for the greater financial burden under the laws. Although Nettle J conceded that the mining process decision ‘was informed by geographic considerations’ (at [61]), the decisions were ultimately based on delivering to each firm the greatest possible financial windfall at the time the decisions were made in the historical technological settings.

This conclusion, which eschews considerations of the geography of place, effect, and time in preference for considerations of financial autonomy offers an appropriate and consistent ending for the Clean Energy Act 2011, because financial interests trumped geographic interests and fairness throughout its invention, implementation and repeal.

The carbon price laws and unfairness

In the lead up to the last federal election Clive Palmer claimed to have advice that the carbon price legislation was unconstitutional, drawing in the then federal opposition leader, Tony Abbott, and then Queensland Liberal National leader Campbell Newman in support of his case. One of the frames developed to oppose the carbon laws was fairness and justice. This particularly included fairness to Australia internationally and fairness for businesses in Australia, especially those smaller businesses facing higher electricity costs, and fairness to families facing higher electricity costs (not all caused by the carbon price laws). At that time, in 2013, however, opposition to the laws was not widespread or strong, with most people ambivalent towards them (as distinct from the deeply felt opposition to the then Prime Minister’s popularly understood broken promise not to introduce a carbon tax). Moreover, opposition to the carbon price laws diminished further in the year following the election of the Tony Abbott led government and in the lead up to their repeal.

There could have been a more sophisticated level of opposition to the laws, not triggered by the financial costs created by the laws (as that was their very deliberate intention), but based on geographic fairness. By geography I mean the distribution between places and jurisdictions and across space, time and scale of social, environmental, political and economic advantages and burdens, whether deliberate or consequential.

The remainder of this short piece tries to record those geographic bases for opposition to Australia’s recent political and legal responses to the issue of carbon emission reductions, which, unlike Mr Palmer’s claims, did not rise to prominence in law or the media. With Mr Palmer’s recent attempt to deploy a discourse of fairness in the context of the financial predicament of Queensland Nickel it is a timely to record these fairness bases.

Geographer Lesley Head has demonstrated that those Australians with lowest incomes experienced the greatest burden of reducing emissions from electricity use under the carbon price legislation. In contrast, the rich simply paid more to run their air conditioners and wine fridges. Indeed, any consideration of the distribution of effect of climate policies and laws across the spectrum of advantage in Australia is typically not prioritised. The recent history of Australian climate policy has examples of ignorance of their geographic fairness, and the discourse of ‘climate justice’ is rarely highlighted in this country while claims about financial business injustices are.

Moreover, the way the carbon price laws were comprised and then administered demonstrated a lack of concern for geographic fairness in place of economic purity and attention to dominant financial interests. For instance, the laws were ultimately not accompanied by regulations that mandated improvements on those coal-fired generators that disproportionately affect carbon exposed communities. Rather the laws did include exemptions to protect trade-exposed business. Moreover, the promise to close down the least efficient power generators in order to achieve significant additional reductions, and indirectly improve the environmental health of the host communities, came to nothing. The long-advocated greenhouse trigger for environmental assessments in the federal Environment Protection and Biodiversity Act 1999 (Cth), which would have protected more communities from future pollution, was dismissed again — this time as being incompatible with the market approach of the carbon price regime.

The repeal of the laws, however, has entrenched localised pollution (an exception is in Anglesea where the generator supplying the local aluminum smelter has been decommissioned on financial grounds). Large coal fired generators are now not required to reduce their emissions at all. The Australian domestic approach to emissions reductions now also reflects its international agenda of using offsets in place of reductions: a policy approach I have previously questioned as being geographically unfair.

While the High Court’s approach to the issue of the geographic effect of the carbon laws was cursory, that should not leave us to think that the recent and current approaches to carbon emissions reduction laws and policies passed the geographic ‘fairness’ test. Rather, these laws created and have embedded geographic discrimination of a type that s 99 of the Constitution is unable to redress.

Queensland Nickel’s financial struggles and retorts to fairness

As for Mr Palmer’s claim that the Queensland government should have guaranteed Queensland Nickel’s immediate financial security on the basis of fairness, that’s far more difficult to unpack. As Antony Green alludes to it seems that Mr Palmer was attempting to use ‘fairness’ as a slogan in the same way the present government has for its current reform agenda: an agenda focused on matters economic and overlooking the geographic unfairness of climate change law and policy. Lost also in the framing of the debate by Mr Palmer, but identified by the Queensland opposition, is the fairness of the State potentially being called upon to rehabilitate the refinery site lest the local community continue to bear environmental harms without any economic advantages from the operation of the refinery.

Clearing the Air: Australia, environmental justice and ‘toxic’ pollution

Here is a speech I gave at a public seminar hosted by Environmental Justice Australia on 8 July 2014 on the topic of air pollution and environmental injustice.

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The focus of this evening’s seminar is the recently published ‘Clearing the Air’ report into air pollution by our hosts, Environmental Justice Australia.

However, I want to start my presentation by taking you back a couple of years to the report that saw this organisation shift its attention, and ultimately its name, towards concerns of environmental justice.

In that report, the final report of the Environmental Justice Project (pdf), the Environment Defenders Office (‘EDO’) – as it then was – explained an absence within Australia of a narrative – or movement – for environmental justice and a policy gap in the promotion of environmental justice principles throughout the country.

For those of you unfamiliar with the concept of environmental justice it is a term with an evolving definition: it is defined differently depending on context and perspective. What links the definitions, however, are two concerns about fairness.

First, fairness in terms of where environmental harms are situated. In this respect the concept is understood as having distributional or geographic aspects.

Second, a concern about fairness in decisions about projects or policies that are perceived as having environmentally harmful effects – wherever those effects may be located. So in this respect the concept is also understood as having procedural or political aspects.

When understood at its most basic level within these two terms, I am sure you will agree that for many decades these concerns about fairness have been evident in Australia. I am confident that each of you could recall a case, a project, a decision, a pollution event that either gave rise to concerns about distributional unfairness or procedural or political unfairness.

Some readers of the EDO’s Environmental Justice Project Final Report, however, suggested that the concept of environmental justice is novel to Australia: that the EDO’s work was the first time that environmental justice had been brought into view in Australia. That is not accurate. A review of the footnotes of the EDO report makes plain that there has existed and been recorded for a period of time in Australia events and literature on environmental justice.

In fact, the experience of air pollution in Australia allows you to trace environmental justice concerns for decades. The graphic locating geography hot spots of air pollution in the Environmental Justice Australia report, (pdf, see page 16), offers you an opportunity to reflect on how long those spots have been presenting distributional, unfair health problems to those communities. They have not just appeared over the past two years.

The principal messages in my presentation today, drawn from my research and also what I learned in putting together and recently teaching the subject Toxics, Waste and Contamination Law is that environmental justice concerns have played a part in our pollution laws over the past 40 years.

It is only now are we as a community of scholars and of individuals beginning to frame our laws as being directed to achieve environmental justice. The report we are discussing tonight is part of this movement; part of the trend.

I want to offer two potential reasons for this interest in environmental justice: not simply the concepts but also the words, the discourse, the phrase, the term.

First, we are seeing demands that human health impacts be a priority when governments respond to incidents and reports of degraded environments and, associated with that, a second potential reason (and this is somewhat preliminary and speculative) is the displacement, in the view of non-government entities, of sustainability as the predominant policy goal of environmental laws.

To reach these conclusions, however, it has been necessarily for me to take what is becoming an unconventional route to understanding what environmental justice means.

The conventional route is to see environmental justice as having emerged from the environmental racism movement in the USA, exemplified by the incident in the late 1970s and early 1980s in Warren County where abandoned chemical wastes were relocated in the face of African America led opposition to a tip created in the least wealthy and least white county in North Carolina.

A less specific, less limiting and arguably more global and less instantaneous, alternative starting point for the emergence of environmental justice is in the anti-toxics movement.

Political scientist John Dryzek traces the discourse of environmental justice to this movement and social scientists Buell and Szasz also separately reached this view.

For them ‘toxic’ was and is a word of political power and an expression and encapsulation of human health concerns. Szasz writes of toxic as ‘icon’, a rallying point. Buell writes of the ‘global rhetoric’ of toxicity predating the 1970s. Dryzek notes the difficulty in disproving toxicity: hence it has symbolic and political power.

Toxic was proxy – for justice, for fairness, for protection of human health. It remains so. You are also likely seeing it appear more in our environmental language. Alkon et al in recent scholarship in the journal Local Environment argue that we should not always be looking for environmental justice as a term to understand its meaning and force, but to be mindful of proxy terms.

So if you are looking for a narrative of environmental justice in Australia a search for concerns and complaints about toxicity can be a proxy. You are all likely aware of the long standing National Toxics Network. Some of you might be aware of the book Local Heroes edited by Kathleen McPhillips which recounts incidents of toxic pollution and threats around Australia, including at the periphery of Coode Island here in inner Melbourne. These, as well as some of those locations in the pollution hot spots map, are Australia’s early stories of environmental justice. They date for decades.

What is central in the toxics terminology is the human – toxic effects on humans. So having sketched out a path for you to see environmental justice as having resonated through our experience of pollution laws, I now want to turn to emphasise the centrality of human health to those concerns. To show the parallel experience of health and toxicity in our modern environmental laws.

If you look at the origins of the Environment Protection Act 1970 (Vic), you will see a focus on human health concerns within the broader community.

Former federal MP Lindsay Tanner, in his co-authored 1978 book, The Politics of Pollution, pinpoints the proposal for the Carrum sewerage treatment plan with an effluent pipeline into Port Phillip as a trigger for the public to demand a comprehensive pollution control regulatory system in Victoria: a system that would protect the “quality of life” of the public. Tanner’s book also records the election promise of the Bolte government to create the Environment Protection Authority in May 1970 in response to community demands for government intervention to control pollution for their benefit.

While these laws have changed over the past 40 years, particularly in the post-Rio legal sphere, and while governments have repositioned the laws to achieve environmental protection and meet principles of sustainability, recent reports analyzing the conduct of the Environment Protection Authority reiterate that in the community’s view these are laws ought to protect them, their well-being and their health, and that their health has been missing from the agency’s regulatory enforcement activities.

My research has also led me to suspect that if the community ever signed up to the concept of environmental sustainability it has since signed off.

With Annette Jones I reviewed submissions to human rights dialogues, which clearly (and perhaps naturally because of the subject matter) prioritized human well-being, particularly of the most vulnerable in the community, over environmental sustainability and protection concerns. This was so even when governments invited submitters to consider explicitly a right of ‘environmental sustainability’, as the Tasmanian government had proposed. There the Tasmanian people rejected that right in preference to a right to a healthy environment.

The issue of human health as a regulatory priority of pollution laws will be explored in a forthcoming volume of the Michigan Journal of Environmental and Administrative Law. In the introductory essay by Uhlmann, he notes that:

“I would submit that the environmental laws themselves are human-centric … Our environmental laws focus on the need for pollution prevention to protect public health.”

He argues that in contemporary times: “We regulate hazardous waste, … when it has the substantial potential to be harmful to “human health and the environment (in that order).”

Ulhman is not alone in suspecting an internal US change in approach to greenhouse gas emission regulation (with human health as its core) is symbolic as well as pragmatic. In the same volume he notes that Tracy Bach presents research that shows the community is more likely to accept greenhouse gas regulations if climate change is understood as a human health issue. Bach, an environmental pragmatist, argues that we should attempt to secure atmospheric environmental protection through human interest.

Elsewhere in the US, the need for change climate regulatory responses are framed in environmental justice terms in order to persuade regulators to require emissions reductions from power plants rather than letting markets do that work so that communities that host energy infrastructure should see real benefits and changes in the quality of the air that they breathe. President Obama, admittedly with limited alternatives, has responded in a manner that his advisors claim responds to environmental justice and the claims of environmental justice advocates to limit emissions in vulnerable communities.

So, I want to bring you back to environmental justice in Australia. Now, perhaps as a result of the EDO’s two-year old report, we are seeing a clearer and more conscious and deliberate engagement with the concept in Australia. Chakraborty and Green have produced and analysed National Pollutant Inventory data maps with social advantage data showing a clear and strong correlation in Australia between a lack of advantage and presence of potentially harmful pollutants.

Moreover, Felicity Millner (pdf) from Environmental Justice Australia has written about the need to achieve fair access to justice in the environmental law field in Australia. This organization may take on a role as justice advocate, a role that Alkon et al identified as important in driving the environmental justice narrative, and the Clearing the Air report challenges us to confront and come up with a way to respond to an environmental injustice.

Why environmental justice matters

Here is a presentation I gave at the EDO/CREEL Environmental Justice Symposium:

I want to present two somewhat related thoughts to you today about why environmental justice matters.

The first thought is: that environmental justice matters because the concept of ecological sustainable development has failed – ESD has become a catch-phrase, has always lacked meaning, and certainly no longer prioritises environmental protection and conservation. The concept of ecological sustainable development is not used to improve the livelihood of the least advantaged among us. The ecological modernists, and even the ecological industrialists, have employed the notion to achieve their ends, be they environmentally benign or destructive. Moreover, a legal system designed around an environmental justice framework might have caused decision-makers and ourselves greater reason to doubt the appropriateness of government decisions made about the environment and development.

This thesis is demonstrated by three Australian case studies which are the subject of my current research and which explores the aspects of distribution, recognition, participation and capabilities that David Schlosberg has identified as being components of a multi-faceted, hybrid and plural notion of environmental justice.

It is demonstrated in a battle over a landfill in rural NSW where the law at first intervened to halt a project that would have cross-generational adverse impacts on the rural future of the people of the township of Molong, whose landscape would include the home of a landfill and recycling plant owned and operated by, and servicing the people of, the neighbouring city of Orange. Later, however, the law allowed the court’s concerns to be downplayed as the project was rebadged as one of the most sustainable waste projects of state importance. The landfill was approved. The community was left with no meaningful avenue to the courts to challenge a dubious legal conclusion reached by the NSW Minister for Planning.

It is also seen in the environmental assessment process, an archetype of sustainability law, for the Channel Deepening Project here in Victoria, and was especially evident in the process for the sugarloaf pipeline, where the environmental law failed to guarantee expected and typical rights to participate in the project evaluation process in a meaningful way, a process already designed to advantage industrialist proponents.

It was evident in the dispute over logging in Tasmania’s Wielangta forest, where the ‘ecologically sustainable’ Regional Forests Agreement – a model of sustainability policy – was found to allow the endangerment of species the RFA was supposed to conserve and protect. While the court at first instance concluded that the law required an assessment to be undertaken before any activity would further diminish threatened species populations and the species’ capacity to flourish, the executive governments of the Commonwealth and Tasmania devised a work-around to permit logging in the forest despite its adverse impacts on the ecosystem.

My second thought about why environmental justice matters is that a principle of environmental justice is an important moderator of some our collective environmental enthusiasm. It should make us think before, as a community, we are seduced by the promise of environmental benefits using relatively novel policy approaches.

Last month I returned from a half-year research stay in the San Francisco Bay Area where environmental justice issues are raised and pursued by a number of grass-roots non-profits whose focus is on improving the environmental health of California’s most disadvantaged communities. While often the environmental justice groups work alongside traditional environmental groups, they have recently lined up against them in court.

The issue that has demonstrated a disjuncture between community-focused environmental justice groups and mainstream state and national environmental groups has been the Californian Government’s decision to adopt a cap-and-trade mechanism to reduce its greenhouse gas emissions.

The environmental justice groups succeeded in court by arguing that the government had failed to follow the process required of it in law because it did not evaluate alternative options for reducing greenhouse gas emissions – particularly a carbon tax – or indeed regulatory limits on emissions. The environmental justice movement’s concerns about a cap-and-trade mechanism include that there is an ability under that system to offset emissions. This might lead to total emission reductions but will not have the associated benefit of reducing the local pollution in some of California’s most polluted areas. They argue that the only fair way to reduce greenhouse gas emissions is to reduce them at source, and at every source.

The policy setting has already led to the development or proposal of new, more efficient and sustainable gas fired power plants – a cluster of them (each power plant just coming under the human health emission limit triggers for assessment and mitigation requirements – collectively they are over the limits). They are being built or proposed around the poor township of Richmond, though much of the power will be used in San Francisco where polluting power plants were closed owing to the lobbying efforts there of a wealthier and empowered community.

Rubbish to Molong: NSW Planning’s repressive approach to projects of significance

Would you classify a landfill for a rural city in New South Wales as state or regionally significant? Should it get a smoother ride through the planning system than other kinds and scales of development? Should it be immunised from local laws which discourage developments with adverse impacts?

Later this month we will find out what the NSW Government thinks. Can NSW get its planning laws in order so they respect local communities, provide a role for independent review, and protect the environment? If so, it will need to wrestle control from the Minister, whose predecessors have used the laws to advance a government-controlled development agenda.

The previous NSW Labor Government thought that a landfill built near the town centre of Molong in country NSW – the Orange Waste Project, which would be a dump for Orange’s rubbish – was regionally significant. It approved the locally controversial development in 2010 under the former Part 3A of NSW’s planning laws. This was despite local planning policy directing that the landfill should not be located on the chosen site and even though the courts had rejected a previous iteration of the development.

The assessment and approval of the Orange Waste Project stands as an illustration of how Part 3A operated at its best and its very worst. It demonstrated how a developer can be encouraged and cajoled into improving the environmental credentials of a development. But it also showed how a local community can have its social, economic and environmental concerns confirmed and supported by local laws, but then found insignificant compared to the presented benefits of a decreed regionally significant project.

Like so many other Part 3A developments, in this project the community was left with nowhere to seek redress despite having a case worth arguing.

The relevant planning policies said the proposed site – which would be used for landfill, composting and recycling – was valuable agricultural land. A permit could not be granted until the decision-maker assessed how the development would affect the present and potential agricultural uses of the land. And the decision-maker had to be satisfied that the landfill wouldn’t have an adverse effect on the long-term use, for sustained agricultural production, of any prime crop-and-pasture land.

The NSW Land and Environment Court overturned an initial approval of the landfill principally on the basis of this policy context. The Court found that the effects of the development would be adverse and long-lasting. On the actual site and in surrounding lands, agricultural uses would be displaced, restricted or put at potential risk.

There was also opposition because the town’s amenity would be affected by rubbish trucks going back and forth from Orange. And more symbolically, the people of Molong did not want their town to be the place where its neighbour’s rubbish, coming from a different local government area, would be dumped.

The developer, the Orange City Council, responded to the court decision by revising its project. It reduced potential environmental impacts and increased sustainable waste practices. Then it presented the tip proposal to the former government as regionally significant under Part 3A.

The Minister for Planning used a broad and practically unchallengeable power to decide that the project was regionally significant. In doing so the geographic scale for the decision-making changed. Local impacts would give way to perceived or potential regional benefits. This was even though the project’s “regionally significant” status was disputed by opponents. The decision was poorly supported by facts and statutory interpretation principles.

What happened next was what happened for over 98% of projects under Part 3A – the Minister approved it. The opponents’ opportunities for appeal were largely and symbolically denied within the planning laws.

We will soon find out what the O’Farrell Government thinks about the importance of certain developments that were previously assessed under the former Part 3A of NSW’s planning law. The NSW Parliament repealed this law shortly after the Coalition Government was voted into office. As part of a review of the NSW planning system, an options paper for reform, and the government’s response to it, are due to be released in June (though the options paper was also promised for April and May, so we shall wait and see).

The paper will certainty include new proposals for identifying, assessing and approving state significant developments. It is important to be able to identify critical and strategic developments warranting State Government oversight. But whether proposals can be framed in a way to pacify ongoing community anger about Part 3A will be interesting to watch.

Can the people of NSW expect meaningful reform? The test will be whether the breadth of the application of the previously laws is severely constrained to projects of true importance to the state. The control previously consolidated in the Planning Minister will have to be reduced and subject to objective standards of good decision-making. And the courts, communities and Parliament must all have defined roles in the new system.

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This article was written for and originally published by The Conversation. Read the original article. It is based on this earlier research.

A regional waste facility or a local tip out of place? A nomospheric investigation of power and legal categorisation

What follows is a text of a presentation given to the Annual Meeting of the American Association of Geographers in New York, 26 February 2012. A subsequent, much briefer piece, set in the context of impending changes to NSW’s planning laws, was published by The Conversation.

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Introduction

I want to speak to you about a landfill, composting and recycling facility that was proposed, assessed and – after legal and political twists and turns – was approved for development in the small town of Molong, located 4 hours drive west of Sydney. The proponent of the development was Orange City Council. Molong is about 25 kilometres beyond the boundary of the Orange City Council local government area.

With the benefit of David Delaney’s work on ‘nomoscapes’, I will look at how within the controversy over the Orange Waste Project law and place were connected. The geography was categorised by the law. The law specified that developments in New South Wales could be with respect to the ‘state’, could be ‘regional’ or ‘local’. Meanwhile, the law had to confront details about the agricultural quality of the land, the sense of place, the threat to amenity, and the importance of the rural landscape: all matters familiar to geographers.

What I hope to achieve is to not only introduce you to the project and the particularities of the nomospheric method I found most useful, but also to offer an analysis of the decision-making throughout the assessment process for the project, looking at the important local and regional dimensions and suggesting that in this instance the project was approved because one actor – the Minister for Planning – had unfettered power in and over the nomosphere: including power to define the nomosphere itself.

Nomospheric investigations

Delaney’s recent scholarly contribution argues that the places and environments that we inquire about can be understood further and differently by ‘thinking about the complex, shifting and always interpretable blendings of words, worlds and happenings … through which our lives are always unfolding’. Undertaking so-called ‘nomospheric investigations’ into events that encounter the law can offer more detailed and critical perspectives about the law and the world in which we live. Central to these investigations is a focus on ‘situations’, not on ‘cases’; on experiences, viewpoints and the dynamics of power, not so much on the legal outcome. Delaney makes the point that the lived experience of the law is frequently neglected. The typical legal analysis analyses the text of a case. For this work, however, the case: Hub Action Group v Minister for Planning (2008) 161 LGERA 136 will represent a milestone in a much longer history; as one moment when the nomosphere was disturbed.

I have attempted to listen, to hear what Delaney (2010, 47) refers to as the ‘nomospheric consciousness’:

As situations unfold they are assessed by participants. One dimension of assessment or judgment is the degree to which what is happening is seen as comporting with notions of fairness or justice. Actors assess not only what does, can or is likely to happen, but what should happen or shouldn’t happen, should or shouldn’t be happening.

The settings

In this project there were two competing nomic settings: the ‘regional’ (encompassing the surrounds of the provincial city of Orange) and the ‘local’ (the town of Molong) within the ‘nomoscape’ of the Orange Waste Project. These settings are typically, and in this situation were, defined not only by the law, but by understandings of geography and history. They are changeable and were changed. Participants in the controversy advanced arguments and justified their actions by reference to these settings.

The project and the conflict that it created has some of the hallmarks of a typical environmental justice controversy. It ended up a battle between a large provincial and historically wealthy city with an increasingly diverse economy and a small country village largely reliant on agriculture for its ongoing prosperity.

Orange is, within the Australian context, a relatively large inland city with a population approaching 40,000. It is a vibrant city whose growth, like a number of historic inland cities in Australia, was triggered by the gold rush in the mid to late 1800s and whose reputation and attraction is sustained today by its successful marketing of gourmet food and wine tourism.

Molong is a small country village with a population of a little over 2,100 people. In terms of population it is less than 1/16th the size of Orange. On most socio-economic indicators Orange is only slightly better off. The differences are, by and large, historical and cultural – reflecting how the places came to be as they are and how they are viewed by their residents and others.

The project

Turning now to what I have conceived as the nomoscape of the investigation. The Orange Waste Project had its origins in 1996, when the Orange City Council and Cabonne Shire Council first met to discuss a joint waste project. By 2000 the councils had agreed to find a site to build a facility that would service both municipalities: 90% of waste coming from the City of Orange and 10% of waste originating in Cabonne Shire.

The councils imagined a ‘Reprocessing Hub Resource Farm’: a tip, with a waste recovery facility – including recycling and composting components. In a highly controversial manner at the end of a site selection process Orange City Council purchased land in Molong and then announced that it would be the site of the Hub development, breaching commitments that it had made to to acquire a site with community consent and after alternatives had been ventilated.

The purchased land was a farming property on Euchareena Road 5 km from the Molong town centre.

The land remained the site for the development despite opposition initiated by nearby farmers that subsequently spread across the Molong community and despite planning impediments, and even after the Cabonne Shire withdrew from the project.

Local objections and policy

The Hub Action Group, formed by landholders nearby the Euchareena Rd site, led the opposition to the project. The project did not immediately inspire broad opposition, however. The local paper reported a general disinterest from the community at about the time the first environmental assessment was released in 2005. There appeared to be apathy in the media in the early stages, with muted support and minimal critique. Still, 139 submissions objecting to the project were made with respect to the first environmental assessment.

The principal objections then were reiterated in the years that followed. They were very much localised:

  • localised to the site: It was the wrong site. It lacked the necessary environmental strategies and planning support, with the Cabonne Local Environment Plan 1991 protecting the prime agricultural land of the site from adverse impacts.
  • localised to the immediate surrounds: There would be a risk to the local apiary business, and particularly on the neighbouring landowner’s use of his land for bee-keeping, while the development was not in keeping with the rural landscape; and
  • localised the Molong community: who would suffer amenity impacts, especially from trucks driving to and from the site through Molong’s town centre.

Overarching these perceived impacts was a sense that this project would deliver to Molong a destiny that it did not want – the status of being its neighbour’s waste dump.

The local concerns were backed up by local planning policy. In 2005 the project was assessed and its fate determined by the Minister for Planning standing the shoes of the local council. The Minister at this time was bound by the local planning policy, including clause 10(1) of the Cabonne Local Environment Plan, which provided that the Council shall not consent to an application to carry out development on land within Zone No 1 (a) … unless it:

  • makes an assessment … of the effect of the carrying out of that development on the present and potential use of the land for the purposes of agriculture, …
  • and is satisfied that the development will not have an adverse effect on the long term use, for sustained agricultural production, of any prime crop and pasture land.

The Minister approved the project after undertaking the required assessment and finding that the site was prime crop and pasture land, and that there would be adverse effects on the long-term use of the land. The Hub Action Group initiated a merits appeal to the NSW Land and Environment Court.

The court’s involvement

In that setting, the project was rejected because of its likely current local impacts and those that would be felt into the future. The judge also concluded that the project was fundamentally unsustainable because it was not apparent how the recycling and composting components would be developed or supported by local systems. It was the first significant nomic disturbance of the project.

Chief Justice Preston, whose function was to make the decision afresh, found that the development would have an adverse effect on the site, which was prime agricultural land, reducing its current and future use for agriculture. The landfill would displace agricultural uses while in operation, and after rehabilitation the soil profile above the landfill cap would be reduced, limiting the types of crops that could be grown on the site. The judge considered that these limitations could lead to a lowering of the agricultural class of the land. Further, the development would have an adverse impact on the nearby land used to farm bees and produce honey. This was because of a risk of contamination to the bees from the landfill. The judge concluded that:

[T]o approve a development which is likely to have these adverse effects on the long term use, for sustained agricultural production, of prime crop and pasture land would not be consistent with the principles of ecologically sustainable development. …

The provisions of the [Local Environmental Plan] … are part of a law supporting sustainable development, by protecting, enhancing and conserving the valuable resource of agricultural land and in particular prime crop and pasture land in a manner which ensures its use for sustained agricultural production. …

[The] development compromises future generations’ ability to use and enjoy to the same degree as the present generation the prime crop and agricultural land.

The Part 3A route

Its project rejected, and its partner, Cabonne Shire Council, no longer supporting the project, Orange City Council opted to take an alternative route to an approval that would side-step the court’s finding and alter the scale for the assessment of the project. This was a further and determiniative nomic disturbance for the project.

In early 2009 it applied for approval under Part 3A of the NSW Environmental Planning and Assessment Act 1979. This part of the Act was introduced in 2005, shortly after the first project environmental assessment was initiated by Orange City Council. It was introduced with a clear and deliberate intention of facilitating state-significant or regionally-significant developments. It did this by consolidating decision-making power in the hands of the Minister for Planning and his/her Department, providing immense decision-making discretion – including being able to ignore local policy – and created tremendous barriers to bringing an appeal against a decision of the Minister.

It was at this point that the opposition to the project was at its greatest. Orange City Council was accused of acting unfairly, undemocratically, and contemptuously of the court and the public. It was able to employ a process that had resulted in 6 of 442 applications being rejected over a 4-year period.

The local paper the Molong Express editorialised (27/3/08, 1):

OCC intend to lodge a “Part 3A application” with the NSW Department of Planning. Under this planning provision the Minister can deem the proposal “state significant” and rubber stamp the HUB proposal on prime agricultural land …. And no one, not even our Courts, can stop him. The “back door” route.

Moreover, the community’s justice discourse was no longer only grounded in distribution but also in procedure. The community presented their renewed battle as a David and Goliath one.

The ‘regional’ dimension

Under the law and supporting policy, a ‘regional’ landfill of the size proposed by Orange City Council was a ‘regionally significant’ development that could be assessed under Part 3A. The Minister for Planning had the power to declare that a project was a ‘regional’ landfill, if in his/her opinion it was a ‘regional’ one.

A strong critique could be made of the finding by the Minister that the landfill was a regional one – based on legal statutory interpretation principles or on common or geographic understandings or what a ‘region’ is. However, there was a very fragile basis for challenging that decision, even though this particular matter was highly contested.

The official position of the Hub Action Group was that the project was not a regional one. Its members argued that:

It portrays itself to be a regional solution. It is not. It is not supported by any other regional LGA and is opposed by the host Council, Cabonne. It has been ‘dressed up’ as a regional landfill for the purposes of Part 3A qualification. But in substance it is not.

However, Orange City Council had long been plying the narrative that its project was a regional one. Its earliest studies purported to investigate regional options. In 2002 the Council resolved that it would devise a regional waste facility and in defending its Part 3A application that Mayor of Orange argued that his Council had:

a responsibility to act in the best interests of the community to provide long-term regional waste management strategies … This proposal will deliver waste management solutions for the region well into the second half of this century.

In its third environmental assessment for the project the proponent indicated that there would be an opportunity for other councils to direct their recyclables and green waste to its facility, and they expected this opportunity to be taken up as the State’s waste minimisation strategies demanded further efforts to reduce volume of non-recoverable waste.

The Planning Assessment Commission, in its advice to the Minister made its evaluation on the basis that the project would be for the ‘region’ and not just Orange City Council. It was not restricted by, or had to comply with, clause 10(1) of the Local Environment Plan.

[T]he [environmental assessment] has satisfactorily considered the impact of the Project on the agricultural capability of the Euchareena Rd site and adjoining land and is taking the necessary measures to mitigate and manage this. In making this judgement, the PAC takes into consideration the agricultural capability of the Region, not just the site in question.

Residents of Molong are unlikely to see the greater environmental outcomes of the Project and may argue that there is no improvement in their amenity or convenience. … [Nevertheless,] the public interest is best served by the Orange region achieving a sustainable solution to waste management, with minimal impact on people in the region, businesses and the environment.

This was most apparent in the way the Commission framed the ‘public interest’ at the regional scale, and how the Commission acknowledged but discarded local impacts.

With such a strongly worded recommendation the project was approved subject to modifications that would make it one of the most technical and highly conditioned landfills in NSW; and a project that would be endorsed by former project doubters from the waste industry and environmental movement.

Conclusion

So what can we take away from this story other than a further impression of the troubles with a law that has recently been repealed by a Parliament led by a new State Government of NSW?

In this case we can see how the law responds to nomic scales, how it can prioritise one over others, and moreover how it can devise and define nomospheres. Law and geography can be firmly linked.

We can also see how the law can allocate and privilege actors within particular nomospheres, and can exclude judges and lawyers altogether from the nomosphere – vesting legal as well as administrative function in an often obliging government. The consolidation of unfettered power in this case created a type of spiral, where the most powerful actor in a nomoscape was able to employ that power to more narrowly define a nomosphere where that actor’s power was further increased.

Finally, the situation here is another example of local interest and concern being overwhelmed by other scales in planning and environmental assessment matters. This may be warranted depending on the importance and critical nature of a proposal. However, what is most worrisome here, and perhaps would be uncovered with similar critical inquiries into other projects, is that there was a very challengable foundation for departing from the local scale as the basis for project assessment but no real ability to challenge it.

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.

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.