Environmental Law Developments

26 September 2007

By Kellie Tranter

It has taken governments so long to accept the reality of climate change, how long will it take them to agree on how to tackle it? Will they look for the best way of tackling it, or simply the most politically expedient? Is there anything we can do to force them to act, and to act properly?

It is interesting to note the dismissive approach taken by the assessor from Malcolm Turnbull's Department who recently gave the Anvil Hill project the green light, finding that the combustion by end-users of all the coal produced by the proposed mine would produce per annum the equivalent of 0.04% of the current annual global greenhouse gas emissions. What is extraordinary is her conclusion that ...in light of the relatively small contribution of the proposed action to the amount of concentration of greenhouse gases in the atmosphere, I found that a possible link between the additional greenhouse gases arising from the proposed action and a measurable or identifiable increase in global atmospheric temperature or other greenhouse impacts is not likely to be identifiable." She also found that greenhouse gases emitted in the course of extracting and transporting the coal "were likely to be negligible in the context of existing emissions". Now, one 25th of 1% may sound small, but not when you consider the magnitude of the whole; further, being superficially small does not mean that its consequences are not identifiable. If Mr Turnbull can use this argument to give Anvil Hill the go ahead, how can he tell us in the same breath to change our lightbulbs? If we all adopt the approach our government dictates for industry then we should do absolutely nothing to rein in our habits: if Anvil Hill's impact is unidentifiable, our individual impacts are minuscule.

When the Federal Court upheld Turnbull's delegate's decision last week Judge Stone seemed to accept that assessment. In fact, the requirement for identifiable or significant impacts was cemented into the Federal Environment Protection and Biodiversity Conservation Act 1999 by a Howard government amendment pushed through Parliament in February 2007. "Impact" is now defined in such a way that it will prevent this legislation from being used as a vehicle for public interest groups to hold government and industry accountable.

But governments are already involved on both sides of climate change litigation, as is illustrated by two recent United States decisions.

The first involved 12 US states and 13 environmental groups suing the United States Environmental Protection Agency (EPA) to force it to regulate carbon dioxide and other greenhouse gases as pollutants. The Bush government contended that the EPA did not have that authority, but on 2 April 2007 the US Supreme Court ruled - by a slim majority - in Massachusetts v Environmental Protection Agency, that the EPA's refusal to regulate greenhouse gas emissions from cars was "not in accordance with law". Apart from forcing the EPA to deal with the matter properly, the decision is important because the petitioners were found to have standing to bring the proceedings. Unfortunately, however, the effect of the decision is not to resolve the problem but to send it back into the bureaucracy: New Scientist recently reported that a spokesperson for the EPA told it that setting emissions standards "is still in deliberation" and that "it could be quite some time" before a decision is reached. Sound familiar?

In the second case, the State of California sued six big car manufacturers --General Motors, Ford, Chrysler, Honda, Toyota, and Nissan -- about costs it will face because of climate change. On 17 September 2007 federal judge Martin Jenkins dismissed the action on the basis that "the complaint raises non-justiciable political questions". Saying that issues of global warming and emissions standards are, at least in the first place, political rather than legal questions again puts the ball back in the regulator's court: as California's supervising deputy attorney general, Ken Alex, said, "Right now, because the political branches --the federal government, Congress, and the executive branch --have not acted, the state of California is left without a remedy."

These cases may not be resounding victories but they are important early steps: for example, the Supreme Court decision on standing is helpful to litigants, and the California decision makes it very clear where responsibility for action lies.

Our governments have belatedly acknowledged climate change as a real issue, but only because they know people are extremely concerned about it and they won't be re-elected if they don't. They now seem to have moved to the next phase, which involves reports, reviews, exploring options, talking alot, making empty promises, entering useless "agreements" like the APEC Sydney Declaration and doing altogether too little, far too slowly. Howard's 15% "clean" energy target is a prime example: the target is too low, it's expressed in megawatt hours rather than true percentages of overall consumption, the definition of "clean" is highly contentious, and as critics have pointed out, the "plan" doesn't actually increase the renewable energy component from what we have now. The sad fact is that our State and Federal Governments' coffers depend so heavily on taxes and royalties from deleterious economic activities that they simply won't upset the applecart.

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