The constitutional fate of the Clean Energy Act

This post was first published on Opinions on High on 6 August 2013 as ‘News: Waiting for the mining tax case and forgetting about any carbon price case’

Tomorrow we will learn of the High Court’s decision on the challenge by Fortescue Metals and others to the Commonwealth’s mining tax legislation – the Minerals Resource Rent Tax Act 2012 (Cth). The court heard that case in March this year. Professor Michael Crommelin from Melbourne Law School will be writing about the Fortescue case for Opinions on High.

Readers might recall that when public opposition, and threats about constitutional challenges, to the minerals resource rent tax was at its height, there were similar discussions about the carbon price legislation (the Clean Energy Act 2011 (Cth)). Here is an opinion by Professor George Williams from the time foreshadowing the likely constitutional objections to the mining tax and carbon price.

Nevertheless, there has still been no application made to the High Court to challenge the Clean Energy Act 2011. This is despite the many months of threats of challenge, and a writ and statement of claim being lodged with the court only a little over a month ago by Queensland Nickel.

Having reviewed that writ, it is apparent that the future of Australia’s carbon price is destined to be decided at the forthcoming election, and not by the High Court afterall. This is because the writ does not attack the legislation that creates and embeds within the economy the mechanism for pricing carbon. Instead, what Queensland Nickel is challenging is the constitutionality of the way the compensation scheme for trade exposed polluting industries was devised under separate regulations. Queensland Nickel argues that the compensation scheme discriminates across the states, inconsistently with section 99 of the Constitution, because it advantages some states, like Western Australia, over others, including Queensland. It does not challenge the carbon price.

What’s an encumbrance? Environmental justice? Emission standards?

I contributed to Oxford’s Australian Law Dictionary, edited by Trischa Mann. My contributions will mostly be found among the ‘e’ for ‘environment’ entries. Here is my pre-edited entry for ‘environmental justice’, the theoretical foundation for my current research:

Arising from the United States in the 1980s, the environmental justice movement argued against environmental discrimination: principally the siting of environmentally harmful industry in poorer, black and immigrant communities.

The movement articulated a principle of environment justice: that people should have equal access to environmental goods (like parks and clean water) and share the burden of environmental bads (like landfills and polluting activities).

This principle of environmental justice has since been broadened, and for the purpose of the law now encompasses rights of participation and access to justice in environmental decisions and public interest environmental justice now also extends to theories of ecological justice, which consider non-human parts of the environmental court proceedings. The principle of environment as having rights that should be protected for the environment’s sake and not just because of human interest and utility in the environment.