RESPONDING TO CLIMATE
CHANGE:
EMERGING REGULATORY,
LIABILITY AND MARKET
APPROACHES
NICOLA ANNA MAY DURRANT
BSc (Env)/LLB (Hons)(GU); Grad DipLP (ANU)
2008
KEYWORDS
Climate Change,
Climate Law,
Climate Liabilities,
Carbon Trading,
Environmental Governance,
Environmental Law,
Environmental Policy,
International Law.
ABSTRACT
TABLE OF CONTENTS
KEYWORDS. 2
ABSTRACT...3
TABLE OF CONTENTS ............................................................................................................... 4
LIST OF FIGURES...................................................................................................................... 10
TABLE OF CASES ...................................................................................................................... 11
TABLE OF LEGISLATION........................................................................................................ 20
TABLE OF TREATIES AND INTERNATIONAL..................................................................... 27
LIST OF ACRONYMS ................................................................................................................ 31
STATEMENT OF ORIGINAL AUTHORSHIP ......................................................................... 33
ACKNOWLEDGMENTS...34
REGULATION..................................................................................................................... 89
LIABILITY ......................................................................................................................... 90
MARKET MECHANISMS...................................................................................................... 92
CHAPTER FOUR - THE AUSTRALIAN LEGAL RESPONSE TO CLIMATE CHANGE ........... 175
INTRODUCTION ...................................................................................................................... 175
NATIONAL RESPONSES TO CLIMATE CHANGE .............................................................. 179
STATE-BASED RESPONSES TO CLIMATE CHANGE ........................................................ 185
EXISTING EMISSIONS TRADING INITIATIVES................................................................. 187
EMISSIONS TRADING PROPOSALS FOR AUSTRALIA ..................................................... 190
THE REGULATION OF ENERGY SOURCES IN AUSTRALIA ........................................... 193
THE RESPONSE OF THE ASIA PACIFIC PARTNERSHIP TO CLIMATE CHANGE....... 196
A
B
A
B
C
D
E
THE THEORETICAL SCOPE AND OPERATION OF THE EPBC ACT ......................................... 259
THE PRACTICAL APPLICATION OF THE EPBC ACT TO CLIMATE CHANGE ........................... 263
CONCLUSION........................................................................................................................... 292
THE HYPOTHETICAL CLIMATE SUIT: PROFESSIONAL LIABILITY FOR CLIMATEAFFECTED ADVICE ................................................................................................................ 325
A
B
C
D
E
F
LIST OF FIGURES
10
TABLE OF CASES
AUSTRALIA
Anvil Hill Project Watch Association Inc v Minister for Environment and Water
Resources [2007] FCA 1480 (20 September 2007, Justice Stone).
Australian Conservation Foundation v Latrobe City Council (2004) 140 LGERA
100.
Australian Iron & Steel Ltd v Krstevski (1973) 128 CLR 666.
Ball v Consolidated Rutile Ltd [1991] 1 Qd R 524.
Bendix Mintex Pty Ltd v Barnes (1997) 42 NSWLR 307.
Bennett & Anor v Livingstone Shire Council & Ors (1985) QPLR 214.
Bentley v BGP Properties Pty Ltd (2006) 145 LGERA 234.
BGP Properties v Lake Macquarie City Council (2004) 138 LGERA 237.
Bonnici v Ku-Ring-Gai Municipal Council [2001] NSWSC 1124; (2001) 121
LGERA 1.
Booth v Bosworth (2001) 114 FCR 39.
Briginshaw v Briginshaw (1938) 60 CLR 336.
Brodie v Singleton Shire Council (2001) 206 CLR 512.
Bryan v Maloney (1995) 182 CLR 609.
BT Goldsmith Planning Services Pty Ltd v Blacktown City Council [2005] NSWLEC
210.
Caledonian Collieries Ltd v Speirs (1957) 97 CLR 202.
Caltex Oil (Aust) Pty Ltd v The Dredge "Willemstad" (1976) 136 CLR 529.
Capebay Holdings Pty Ltd v Sands [2002] WASC 287 (4 December 2002).
11
12
13
Mutual Life & Citizens' Assurance Co Ltd v Evatt (1968) 122 CLR 556; (1970) 122
CLR 628.
Northern Territory v Shoesmith (1996) Aust Torts Reports 81-385.
Oldham v Lawson (No 1) [1976] VR 654.
Orica Limited and Anor v CGU Insurance Limited [2003] NSWCA 331.
Painter v Reed [1930] SASR 295.
Parkes v Byron Shire Council [2003] NSWLEC 104 (unreported) (Justice Lloyd,
Land and Environment Court, 5 May 2003).
Parkes v Byron Shire Council [2004] NSWLEC 92 (unreported) (Commissioner
Tuor, Land and Environment Court, 15 June 2004).
Perre v Apand Pty Ltd (1999) 198 CLR 180.
Pisano v Fairfield City Council [1991] Aust. Torts R. 69.
Polkinghorne v Holland (1934) 51 CLR 143.
Puntoriero v Water Administration Ministerial Corporation (1999) 199 CLR 575.
Queensland Adult Deaf and Dumb Society (Incorporated) v Brisbane City Council
(1972) 26 LGRA 380.
Queensland Conservation Council Inc v Xstrata Coal Queensland P/L & Ors [2007]
QCA 338.
Re Xstrata Coal Queensland Pty Ltd & Ors [2007] QLRT 33.
Ruthning v Ferguson (1930) 45 CLR 604.
Scurr v Brisbane City Council (No 6) (1975) QPLR 162.
Seltsam Pty Ltd v McGuiness (2000) 49 NSWLR 262.
Shaddock v Parramatta City Council (1981) 150 CLR 225.
14
15
Woolcock Street Investments Pty Ltd v CDG Pty Ltd (2004) 216 CLR 515.
Wyong Shire Council v Shirt (1980) 146 CLR 40.
Yanner v Eaton (1999) 201 CLR 351.
UNITED KINGDOM
A-G v PYA Quarries Ltd [1957] 2 QB 169.
Alfred F. Beckett Ltd v Lyons [1967] Ch 449 at 482B.
Allen v Gulf Oil Refining Ltd [1981] AC 1001.
Barker v Corus UK Ltd; Murray v British Shipbuilders (Hydrodynamics) Ltd;
Patterson v Smiths Dock Ltd [2006] All ER (D) 23 (May).
Barnett v Chelsea and Kensington Hospital Management Committee [1969] 1 QB
428.
Bolam v Friern Hospital Management Committee [1957] 1 W.L.R. 582.
Bonnington Castings Ltd v Wardlaw [1956] AC 613.
Bowater v Rowley Regis Corporation [1944] KB 476.
Bury v Pope (1586) Cr Eliz 118; 78 ER 375.
Cambridge Water Co. Ltd v Eastern Counties Leather plc [1994] 2 AC 264.
Caparo Industries PlC v Dickman [1990] 2 AC 605.
Daborn v Bath Tramways Motor Co Ltd [1946] 2 All ER 333.
Davies v Swan Motor Company (Swansea) Limited [1949] 2 KB 291.
Delaware Mansions Ltd v Westminster City Council [2001] 4 All ER 737.
Donoghue v Stevenson [1932] AC 562.
16
17
18
INTERNATIONAL
Barcelona Traction Case, Barcelona Traction and Light and Power Co, ICJ Reports
(1970) 3.
Chorzow Factory Case, Permanent Court of International Justice Ser. A. No. 13.
East Timor (Portugal v Australia) 1995 International Court of Justice Reports 90.
Lac Lanoux case, Spain v France, UNRIAA, XII, 281 at 315-317; 24 ILR 101
(English version).
Monetary Gold Removed From Rome (Italy v France, Great Britain, USA) 1954
International Court of Justice Reports 19.
The Corfu Channel case, Great Britain v Albania, ICJ, Reports (1949).
Trail Smelter Arbitration, United States v Canada (1931-1941) 3 RIAA 1905; (1939)
33 AJIL 182; (1941) 35 AHIL 716.
19
TABLE OF LEGISLATION
AUSTRALIA
Commonwealth
Commonwealth of Australian Constitution Act (Cth).
Corporations Act 2001 (Cth).
Energy Efficiencies Opportunities Act 2006 (Cth).
Environmental Protection and Biodiversity Conservation Act 1999 (Cth).
Seas and Submerged Lands Act 1973 (Cth).
Trade Practices Act 1974 (Cth).
Queensland
Civil Liability Act 2003 (Qld).
Clean Energy Act 2008 (Qld).
Domestic Building Contracts Act 2000 (Qld).
Environmental Protection Act 1994 (Qld).
Environmental Protection (Waste Management) Regulation 2000 (Qld).
Fair Trading Act 1989 (Qld).
Forestry Act 1959 (Qld).
Integrated Planning Act 1997 (QLD).
Land Act 1994 (Qld).
Law Reform Act 1995 (Qld).
20
21
Victoria
Domestic Building Contracts Act 1995 (Vic).
Environmental Effects Act 1978 (Vic).
Environment Protection Act 1970 (Vic).
Fair Trading Act 1999 (Vic).
Forestry Rights Act 1996 (Vic).
Limitations of Actions Act 1958 (Vic).
Planning and Environment Act 1987 (Vic).
Wrongs Act 1958 (Vic).
South Australia
Building Work Contractors Act 1995 (SA).
Civil Liability Act 1936 (SA).
Climate Change and Greenhouse Emissions Reduction Act 2007 (SA).
22
Western Australia
Barrow Island Act 2003 (WA).
Carbon Rights Act 2003 (WA).
Civil Liability Act 2002 (WA).
Environmental Protection Act 1986 (WA).
Environmental Protection (Unauthorised Discharges) Regulations 2004 (WA).
Fair Trading Act 1987 (WA).
Limitation Act 1935 (WA).
Petroleum Pipelines Act 1969 (WA).
Planning and Development Act 2005 (WA).
Tasmania
Civil Liability Act 2002 (Tas).
23
Northern Territory
Consumer Affairs and Trading Act (NT).
Limitation Act 1981 (NT).
CANADA
Climate Change and Emissions Management Act 2003 (Alberta).
Climate Change and Emissions Management Act: Specified Gas Emitters Regulation
(Alberta Regulation 139/2007).
EUROPEAN UNION
24
NEW ZEALAND
UNITED KINGDOM
25
26
TREATIES
Charter of the United Nations (opened for signature 26 June 1945, San
Francisco)(entry into force 24 October 1945).
Convention on Wetlands of International Importance especially as Waterfowl
Habitat (the Ramsar Convention) (adopted 2 February 1971, Ramsar, Iran)(entry
into force 1975).
Kyoto Protocol to the United Nations Framework Convention on Climate Change,
opened for signature 16 March 1998 (entered into force on 16 February 2005).
IMO, Convention on the Prevention of Marine Pollution by Dumping of Wastes and
Other Matter, the London Convention 1972 (entered into force 1975).
IMO, Protocol on the Prevention of Marine Pollution by Dumping of Wastes and
Other Matter, the London Protocol 1996 (entered into force 2006).
International Covenant on Civil and Political Rights 1966, 999 U.N.T.S. 171;
U.K.T.S. 6 (1977), Cmnd. 6702; (1967) 61 A.J.I.L. 870.
International Covenant on Economic, Social and Cultural Rights 1966, 993 U.N.T.S.
3; U.K.T.S. 6 (1977), Cmnd. 6702; (1967) 6 I.L.M. 360.
United Nations Convention on the Law of the Sea 1982 (UNCLOS) (Agreed 10
December 1982, Entered into force, 16 November 1994).
United Nations Framework Convention on Climate Change, opened for signature on
4 June 1992, 31 ILM 849 (entered into force on 21 March 1994).
27
28
of
the
Compliance
Committee
of
the
Kyoto
Protocol
(FCCC/KP/CMP/2006/6)
UNFCCC, 'Decision 5/CMP. 3: Compliance under the Kyoto Protocol'
(FCCC/KP/CMP/2007/9/Add.1).
UNFCCC, 'Decision 7/CMP. 3: Demonstration of progress in achieving
commitments under the Kyoto Protocol by Parties included in Annex I to the
Convention' (FCCC/KP/CMP/2007/9/Add.1).
UNFCCC, Decision 27/CMP. 1 'Procedures and
Mechanisms Relating to
Mechanisms
'Decision
1/CP.
13:
Bali
FCCC/CP/2007/6/Add.1).
29
Action
Plan'
(December
1,
30
LIST OF ACRONYMS
AAU
AIE
CDM
CER
COP
DFP
DNA
DOE
EER
ERU
ESD
EU
European Union
GDP
GEC
ICJ
IPCC
ITL
JI
Joint Implementation
31
lCER
LULUCF
MOP
NGAC
PPM
REC
RMU
SBI
SBSTA
tCER
UK
United Kingdom
UN
United Nations
UNFCCC
US
VER
VREC
32
The work contained in this thesis has not been previously submitted to meet
requirements for an award at this or any other higher education institution. To the
best of my knowledge and belief, this thesis contains no material previously
published or written by another person except where due reference is made.
Signed:
Date:
33
ACKNOWLEDGEMENTS
Completing a PhD thesis is no easy feat especially when dealing with the
dynamic area of climate change law and policy. I could not have completed this
challenge within the three year period, as I did, without the encouragement and
support of a number of people. My sincere thanks and appreciation go to:
o my principal supervisor, Professor Fisher (Professor of Law), whos unfailing
confidence in my abilities provided me with the blank canvas on which to
create my work;
o my associate supervisor, Professor Grace (Director, Institute for Sustainable
Resources), who taught me the fine art of profiling and networking in the
international arena;
o my mentor and strategic-thinking buddy, Professor Duncan (Assistant Dean,
Research), who kept me on the straight and narrow and made the PhD
journey fun;
o my mother, Maria Durrant (J.P. Qual.), whos encouragement, interest in my
work, and research assistance were vital in enabling me to remain
motivated;
o my father, the brilliant Dr Durrant, who wisely encouraged me to start a PhD
in the first place and kept me on my toes by remaining a climate sceptic
throughout;
o my siblings, whose wit and cheerful dispositions helped me to find my inner
zen when the going got tough; and
o my fellow PhD scholars (past and present), our coffee breaks, Friday night
drinks and other procrastination techniques were necessary reminders that life
still functioned outside of the PhD room.
Finally, my appreciation goes to the Faculty of Law and the Institute for
Sustainable Resources for providing the funding that made all this possible.
Thank-you to you all.
Niki Durrant
November 2008.
34
RESEARCH TOPIC
The purpose of this thesis is to analyse and evaluate the emerging legal rules and
frameworks, both international and Australian, required for the effective
regulation of greenhouse gas emissions to address climate change in the context
of the urgent and deep emission reductions required to minimise the adverse
impacts of climate change. In doing so, this thesis will examine critically the
existing and potential role of law in responding to climate change through the
integration of effective regulatory, liability and market mechanisms. It will
provide recommendations on the necessary reforms to achieve a more effective
and integrated legal response to this global phenomenon.
Humankinds industrial and post-industrial society has been based upon activities
and processes that rely heavily on the burning of fossil fuels leading to a
mutually antagonistic relationship between continued economic growth and
development on the one hand and environmental protection and sustainability on
the other.1 Climate change presents as the archetypal environmental problem
with short-term economic self-interest operating to the detriment of the long-term
sustainability of our society.
greenhouse gas emitting activities have been regarded as not only lawful but
socially and economically desirable within our society. 2 However, following
increasingly persuasive scientific evidence regarding the real and urgent threat of
1
Andrew Gouldson and Joseph Murphy, Regulatory Realities: the implementation and impact of
industrial environmental regulation (1998) London, Earthscan at 1.
2
Nigel Bankes, 'Legal Prescriptions for an Atmosphere That Will Sustain the Earth' in J Owen
Saunders (ed), The Legal Challenge of Sustainable Development: Essays From the Fourth Institute
Conference on Natural Resources Law (1990) Ottawa, Canadian Institute of Resources Law, 155 at
160.
35
United Nations Framework Convention on Climate Change, opened for signature on 4 June 1992,
31 ILM 849 (entered into force on 21 March 1994) (the UNFCCC).
4
UNFCCC, ibid, Article 2.
5
Kyoto Protocol to the United Nations Framework Convention on Climate Change, opened for
signature 16 March 1998 (entered into force on 16 February 2005) (the Kyoto Protocol).
6
Together, these international agreements are referred to as the international climate change regime.
7
B.S. Fisher et al, 'Issues related to mitigation in the long term context' in B. Metz et al (eds), Climate
Change 2007: Mitigation. Contribution of Working Group III to the Fourth Assessment Report of the
Inter-governmental Panel on Climate Change (2007) Cambridge, Cambridge University Press at 173.
36
Ibid.
Garnaut Climate Change Review, 'Emissions Trading Scheme Discussion Paper' (2008) at 39.
10
Ibid.
37
The purpose of this thesis is to examine critically the role of law in responding to
the urgent global threat posed by climate change.
systems is ineffective and inefficient for the significant temporal and spatial
adjustments required to address promptly the consequences of climate change.
Within this context, this thesis will address particularly the following questions:
What role can the law effectively perform in achieving the significant and
rapid reductions in global greenhouse gas emissions required to respond
to the consequences of climate change?
11
Re Spectrum Plus Ltd (in Liq) [2005] 2 AC 680 at [33] per Lord Nicholls.
The term carbon market is used in this thesis to refer to those markets trading in carbon emission
instruments as well as those trading in greenhouse gas emission instruments more generally.
12
38
It is submitted that the appropriate role of law will include the creation and
implementation of an effective international regime to address the global
phenomenon of climate change and the development of a consistent domestic
legal system aligned with a nation States international obligations. Furthermore,
the deep, short-term, reductions in emissions required will necessitate the
creation and implementation, within the domestic sphere, of a combination of
traditional and innovative legal mechanisms. These include the imposition of
strict duties to reduce emissions through the establishment of strong command
and control regulation (the regulatory approach); mechanisms for the creation
and distribution of liabilities for greenhouse gas emissions and climate-related
harm (the liability approach); and the use of innovative regulatory tools in the
form of tradeable emission instruments within a carbon market (the market
approach). The legal relations between these various regulatory, liability and
market approaches must be managed to achieve a consistent, compatible and
optimally effective legal regime to respond to the threat of climate change.
The mutually complementary roles of the legislature, executive and judiciary will
all be significant in the effective creation, implementation and enforcement of
these legal mechanisms. The legislature must establish clear guiding principles
regarding the rapid and urgent response to climate change and these must be
implemented through the establishment of specific standards and ad hoc
determinations of the executive. The judiciary will also play an important role in
the application, interpretation and enforcement of such standards and principles.
39
Together, these essential mechanics of the legal system may effectively facilitate
rapid emission reductions through their influence upon the emitting behaviours of
all members of the community.
13
For example, William D Nordhaus, 'To Slow or Not to Slow: the Economics of the Greenhouse
Effect' (1991) 101(July 1991) The Economic Journal 920; David Pearce, 'The Role of Carbon Taxes
in Adjusting to Global Warming' (1991) 101(July 1991) The Economic Journal 938.
14
For example, Michael Grubb, 'Options for an International Agreement' in United Nations
Conference on Trade and Development (ed), Combating Global Warming: study on a global system
of tradeable carbon emission entitlements (1991) New York, United Nations, 11;Michael Grubb and
Adam Rose, 'Nature of the Issue and Policy Options' in United Nations Conference on Trade and
Development (ed), Combating Global Warming:study on a global system of tradeable carbon
entitlements, UNCTAD/RDP/DFP/1 (1992) New York, United Nations Conference on Trade and
Development, 1;Deborah Stowell, Climate Trading: Development of Greenhouse Gas Markets (2005)
Hampshire, Great Britain, Palgrave Macmillan.
40
15
Robin Churchill and David Freestone (eds), International Law and Global Climate Change (1991)
London, Graham and Trotman.
16
For example, Alan Boyle, 'International Law and the Protection of the Global Atmosphere:
Concepts, Categories and Principles' in Robin Churchill and David Freestone (eds), International Law
and Global Climate Change (1991) London, Graham and Trotman, 7; R Churchill, 'Controlling
Emissions of Greenhouse Gases' in R Churchill and David Freestone (eds), International Law and
Global Climate Change (1991) London, Graham & Trotman, 147 and Jill Barrett, 'The Negotiation
and Drafting of the Climate Change Convention' in R Churchill and David Freestone (eds),
International Law and Global Climate Change (1991) London, Graham & Trotman, 183.
17
Urs Luterbacher and Detlef F. Sprinz (eds), International Relations and Global Climate Change
(2001).
18
Peter D. Cameron and Donald Zillman (eds), Kyoto: From Principles to Practice. (2001) The
Netherlands, Kluwer Law International.
41
Protocol and possible policy implications for international and regional energy
sectors.19
The legal rules and institutions of the agreed international climate change regime
were analysed and presented in the text of Yamin and Depledge. 20
This
Legal works by Freestone and Streck 23 and Yamin24, published in 2005, attempt
to highlight some of the discrete legal issues and uncertainties within the legal
framework of the Kyoto Protocol. The edited collection by Freestone and Streck
contains papers addressing a range of discrete topics relating to the Kyoto
Protocol including the implementation of emission reduction projects,
contractual, property rights, accounting and taxation issues and embryonic
examples of regional and domestic emissions trading. The brevity of the analysis
in these chapters makes it difficult for the authors to substantively analyse the
legal issues. The work of Yamin focuses primarily on the rules and institutional
features of the market mechanisms under the climate change regime and
highlights a number of the early institutional deficiencies in the operation of the
19
For example, Peter D. Cameron, 'The Kyoto Process: Past, Present and Future' in Peter D. Cameron
and Donald Zillman (eds), Kyoto: From Principles to Practice (2001) The Netherlands, Kluwer Law
International, 3, Peter G. Davies, 'Climate Change and the European Community' in Peter D. Cameron
and Donald Zillman (eds), Kyoto: From Principles to Practice (2001) The Netherlands, Kluwer Law
International, 27 and Gillian Triggs, 'The Kyoto Protocol and the Energy Industry: Australia and the
Asian Pacific' in Peter D. Cameron and Donald Zillman (eds), Kyoto: From Principles to Practice
(2001) The Netherlands, Kluwer Law International, 299.
20
Farhana Yamin and Joanna Depledge, The International Climate Change Regime: A Guide to Rules,
Institutions and Procedures (2004) Cambridge, Cambridge University Press.
21
Ibid, 3.
22
Ibid.
23
David Freestone and Charlotte Streck (eds), Legal Aspects of Implementing the Kyoto Protocol
Mechanisms: Making Kyoto Work (2005) Oxford, Oxford University Press.
24
Farhana Yamin (ed), Climate Change and Carbon Markets: A Handbook of Emission Reduction
Mechanisms (2005) London, Earthscan.
42
regime. However, not all of the key institutional and interactive deficiencies are
identified. The work of Stowell is also intended to analyse the features of the
carbon markets. 25 However, this work is limited by a focus on the broad policy
principles, national strategies and preferred outcomes of the negotiators to the
Kyoto Protocol rather than a consideration of the specific legal mechanisms
required to create, monitor and enforce the market systems.
Broader international compliance issues with the Kyoto Protocol are considered
in the edited collection of Schram Stokke, Hovi and Ulfstein26 and in the work of
Doelle. 27 The former collection describes the design of the Kyoto Protocol
compliance regime, identifies challenges to the effective operation of the regime,
and considers the potential for external enforcement measures, including trade
sanctions and responses by non-governmental organisations. The work of Doelle
provides in-depth consideration of a range of issues associated with compliance
with the climate change regime. The text presents an overview of the compliance
system under the Kyoto Protocol, analyses the potential impact of the World
Trade Organisation on the climate change regime and the potential role of the
dispute settlement provisions under the United Nations Convention on the Law
of the Sea. The role of human rights principles, in relation to the impacts of
climate change, is also considered. The purpose of the text is to assess the
effectiveness of these various mechanisms in motivating States to take action on
greenhouse gas emissions and comply with the climate change regime. 28
25
Deborah Stowell, Climate Trading: Development of Greenhouse Gas Markets (2005) Hampshire,
Great Britain, Palgrave Macmillan.
26
Olav Schram Stokke, Jon Hovi and Geir Ulfstein (eds), Implementing the Climate Regime:
International Compliance (2005) London, Earthscan.
27
Meinhard Doelle, From Hot Air to Action? Climate Change, Compliance and the Future of
International Environmental Law (2005).
28
Ibid, xxii.
43
potential for tortious actions for climate harm based on the United States of
America (US) jurisdiction while Smith and Shearman assess the role of climate
change litigation in the Australian environment. The purpose of the latter text is
to provide a detailed overview and analysis of the legal and scientific issues at
the core of climate change litigation. 33
particularly in the areas of public health and the law and it is from this particular
background that this overview is presented with an emphasis on liability for
adverse impacts on human health.
29
Roda Verheyen, Climate Change Damage and International Law: Prevention Duties and State
Responsibility, Developments in International Law: Volume 54 (2005) Leiden, Martinus Nijhoff
Publishers.
30
David A. Grossman, 'Warming Up to a Not-So-Radical Idea: Tort-Based Climate Change
Litigation, 28 Colombia Journal of Environmental Law 1 (2003)' in Durwood Zaelke, Donald Kaniaru
and Eva Kruzikova (eds), Making Law Work: Environmental Compliance and Sustainable
Development: Volume 1 (2005) 505.
31
Myles Allen, 'The Spectre of Liability: Part 1-Attribution' in Kenny Tang (ed), The Finance of
Climate Change: A Guide for Governments, Corporations and Investors (2005) 367. Myles Allen,
'The Spectre of Liability: Part 2-Implications' in Kenny Tang (ed), The Finance of Climate Change: A
Guide for Governments, Corporations and Investors (2005) 381.
32
Joseph Smith and David Shearman, Climate Change Litigation: Analysing the Law, Scientific
Evidence and Impacts on the Environment, Health and Property (2006).
33
Ibid, xxi.
34
J Robinson et al, Climate Change Law: Emissions Trading in the EU and the UK (2007) London,
Cameron May.
35
Michael B. Gerrard (ed), Global Climate Change and U.S. Law (2007) Chicago, American Bar
Association.
44
to regulate greenhouse gas emissions. 36 Policy issues associated with the risk of
liability of other Australian public authorities are considered in the work of
McDonald37 while litigation as a general policy response to climate change is
considered in the work of Peel.38 Other works include an overview of public and
private responses to climate change in Australia by Lyster,39 and the regulation of
greenhouse gases, in the existing environmental regulatory context, by Fisher.40
consider the implementation of the regime, from the global to the local, and the
interaction between the emerging legal rules and carbon markets.
36
Tim Bonyhady and Peter Christoff (eds), Climate Law in Australia (2007) Sydney, The Federation
Press.
37
Jan McDonald, 'A Risky Climate for Decision-Making: The liability of development authorities for
climate change impacts' (2007) 24(6) Environmental and Planning Law Journal 405.
38
Jacqueline Peel, 'The Role of Climate Change Litigation in Australia's Response to Global
Warming' (2007) 24 Environmental and Planning Law Journal 90.
39
Rosemary Lyster, 'Chasing Down the Climate Change Footprint: Forces Converge' (2007) 24(4)
Environmental and Planning Law Journal 281; Rosemary Lyster, 'Chasing Down the Climate Change
Footprint: Forces Converge-Part II' (2007) 24(6) Environmental and Planning Law Journal 450.
40
Douglas E Fisher, 'The Statutory Relevance of Greenhouse Gas Emissions in Environmental
Regulation' (2007) 24(3) Environmental and Planning Law Journal 210.
45
This thesis will focus on the role of law in responding to climate change through
the international and domestic jurisdictions. Given the breadth of legal issues in
the regulation of the impacts of climate change, only one domestic jurisdiction
has been chosen as the primary subject for analysis. This thesis analyses the
domestic implementation of the climate change regime and regulation of
greenhouse gas emissions through the parameters of the Australian regulatory
environment. Accordingly, it will focus primarily on international and Australian
climate change related laws with a few key comparative examples from other
developed common law countries which have recently considered legal
initiatives to address climate change, such as the United Kingdom, New Zealand,
Canada and the United States of America (with reference to the European Union
in the context of the United Kingdom).
46
An analytical approach has been adopted in this research and reference has been
made to published treaties, legislation, caselaw and government policy and to
reports containing collated data regarding the science of climate change, status of
national emissions and operation of the carbon market mechanisms. Accordingly,
this assessment is based on publicly available data, that had been collated and
reported, with an appreciation of the dynamic nature of the subject. Given the
difficulties in accessing and collating data, at a national and an international
level, empirical data has not been collected.
The primary focus of this thesis is the effectiveness of the existing legal
framework for responding to the implications of climate change and the potential
role for the law, in terms of regulation, liability and markets, in achieving rapid
reductions in greenhouse gas emissions at the global and national scales. Such an
analysis requires an understanding of the key issues relating to the science, the
economics and the politics of climate change. However, this thesis does not
purport to critique the climate change science and the required level of emission
reductions; the economic impacts of climate change and the introduction of
emissions trading; or the political influences behind the regulation of greenhouse
gas emissions. In addition, it does not purport to analyse the ethical, social or
cultural dimensions to the development and implementation of any legal
responses.
47
The thesis has been written in a highly dynamic political and legal environment.
Consequently, although this thesis evaluates and critiques currently available
materials regarding the emerging legal response to climate change, the findings
of this thesis have been deliberately presented with an emphasis on the creation
of broad guiding principles.
enduring nature to assist in the creation of a more effective future response to this
continuing global issue.
48
This chapter
41
Title IV of the Clean Air Act, enacted as part of the Clean Air Act Amendments of 1990, Pub. L. No.
101-549, 104 Stat. 2399 (1990); Clean Air Act, 401 et seq.; 42 United States Congress 7651 et seq.;
Montreal, 16 September 1987, 26 International Law Materials 1550 (1987) (entered into force 1
January 1989).
49
institutional bodies and rules established through this regime lack any solid
regulatory core to drive substantial changes in national emitting behaviour.
There is an absence of strict, universal, duty to reduce emissions by sufficient
amounts, and within the necessary timeframes, to avoid the adverse impacts of
climate change. Moreover, the sanctions for non-compliance are lacking in any
clear deterrent value which will prevent the essential global behavioural shift
from occurring.
This thesis analyses the domestic implementation of the climate change regime
and regulation of greenhouse gas emissions through the Australian regulatory
environment.
The chapter
50
planning regulations have the potential to play a significant role through the
evaluation of major projects, minimisation of greenhouse gas emissions and
avoidance of environmental harm. Such a role falls well within the scope and
purpose of these regimes which include the objectives of achieving the principles
of ecologically sustainable development (ESD). Embedded within the principles
of ESD are the critical concepts of the precautionary principle and intergenerational equity.
societys use of the Earths natural energy sources and sinks and to maintain
optimal and sustainable ecological systems for the benefit of present and future
generations.
experience the harm and losses of climate change through the increased
incidences of heatwaves, droughts, storms and flooding. As the costs associated
51
In this context,
Chapter Six examines the practical application of the existing common law
principles of negligence and nuisance to a series of hypothetical climate suits in
Australia. In particular, this chapter addresses the significant legal issues to be
addressed in the successful establishment of a causative link between the
emission of greenhouse gases, resulting climatic changes, and eventual localised
harm or loss. This chapter concludes that current Australian tort law principles
are poorly equipped to accommodate the unique temporal and spatial issues
presented by climate change torts. Accordingly, statutory intervention will be
necessary to create an appropriate test for establishing causation, incorporating
the scientific uncertainty of post-normal climate change science and embracing
the precautionary principle, in order to fairly distribute responsibility for the
harm caused by the impacts of climate change.
The traditional regulatory mechanisms of the law reside in command and control
regulation based in statute and backed by the operation of the principles of the
common law. However, there is also a range of innovative regulatory tools at the
disposal of the legislature to address novel legal concerns. This includes the
innovation of harnessing the financial incentives of the market through the
creation of tradeable emission instruments, to achieve global greenhouse gas
emission reductions at the location at which it is most cost-effective to do so.
This innovation was adopted in the international climate change regime and has
acted as a catalyst for the design and implementation of a mosaic of emerging
domestic, regional and global markets, both voluntary and mandatory, which are
intended to link into a multi-national global carbon market.
52
In concluding this thesis, Chapter Eight provides a synthesis of the key findings
of this thesis regarding the existing role of law, internationally and domestically,
in restricting greenhouse gas emissions and responding to the global impacts of
climate change. A series of recommendations is also presented for the realisation
of a more effective role for the law in responding to this unique, urgent, global
phenomenon though the integration of effective regulatory, liability and market
measures.
53
INTRODUCTION
The regulation of the consequences of climate change is driven, at an
international level, by the United Nations Framework Convention on Climate
Change (UNFCCC) and the Kyoto Protocol. 2 Together, these international
agreements make up the international climate change regime.
The global
A short summary of the analysis of the scientific and economic predictions in this chapter was
published in Nicola Durrant, 'The Science and Economics of Climate Change: An Update' (2007)
Summer 2006(Issue 4) National Environmental Law Review 39.
2
United Nations Framework Convention on Climate Change, opened for signature on 4 June 1992,
31 ILM 849 (entered into force on 21 March 1994); Kyoto Protocol to the United Nations
Framework Convention on Climate Change, opened for signature 16 March 1998 (entered into force
on 16 February 2005)(together the Climate Change Regime).
54
(US) SO2 trading scheme.3 Finally, this chapter examines the key principles to be
taken into consideration in the design of an effective legal regime to respond to
the impacts of climate change.
Vienna Convention for the Protection of the Ozone Layer (the Vienna Convention) Vienna, 22
March 1985, 26 International Law Materials 1529 (1987),(entered into force 22 September 1988).
Montreal Protocol on Substances that Deplete the Ozone Layer (the Montreal Protocol) Montreal, 16
September 1987, 26 International Law Materials 1550 (1987) (entered into force 1 January 1989);
Title IV of the Clean Air Act, enacted as part of the Clean Air Act Amendments of 1990, Pub. L. No.
101-549, 104 Stat. 2399 (1990); Clean Air Act, 401 et seq.; 42 United States Congress 7651 et seq.
4
IPCC, WMO and UNEP, 'Climate Change: The IPCC Scientific Assessment, Report Prepared for
Intergovernmental Panel on Climate Change by Working Group I' (Cambridge University Press, 1990)
at xiii.
5
Ibid, xix. Tamara S. Ledley et al, 'Climate Change and Greenhouse Gases' (1999) 80(39) Eos
Transactions American Geophysical Union Electronic Supplement 453
http://www.agu.org/eos_elec/99148e.html at 11 June 2008.
6
IPCC, WMO and UNEP, n4, xiv.
55
from approximately 280 parts per million (ppm) in the 1700s to 364 ppm in 1997
and approximately 380 ppm in 2005. 7 And that emissions growth rate is
continuing to rise. 8 Moreover, carbon dioxide, chlorofluorocarbons and nitrous
oxide are long life gases and may take from decades to centuries to fully dissipate
from the atmosphere. 9
emissions of carbon dioxide were immediately ceased then half of all human
induced carbon dioxide concentrations would still remain in the atmosphere by
2100.10 Accordingly, it is now inevitable that some changes in climate will result
from these atmospheric concentrations of greenhouse gases.
Michael R. Raupach et al, 'Global and regional drivers of accelerating CO2 emissions' (2007)
Proceedings of the National Academy of Sciences http://www.pnas.org/cgi/content/full/104/24/10288
at 11 June 2008.
8
Ibid.
9
IPCC, WMO and UNEP, n4, xvii.
10
Ibid.
56
It was predicted, as early as 1896, that carbon dioxide released to the atmosphere
would cause radiative effects and lead to a warming of the Earths surface. 11
From 1958, Dr Keeling measured the atmospheric carbon dioxide concentrations
in Hawaii which demonstrated, through the now infamous Keeling curve, the
continual increase in the earths carbon dioxide concentrations (see Figure
Two).12
11
S Arrhenius, 'On the Influence of Carbonic Acid in the Air upon the Temperature of the Ground'
(1896) 5(251) Philosophers Magazine 237.
12
Daniel Bodansky, 'The History of the Global Climate Change Regime' in Urs Luterbacher and
Detlef F. Sprinz (eds), International Relations and Global Climate Change (2001) Cambridge, The
MIT Press, 201 at 205.
57
The concept of human induced climate change, and the potential for humans to
cause adverse environmental impacts, was considered in the international
principles addressing weather modification in 1978:
States shall in good faith and in the spirit of good neighbourliness give adequate and
timely
notification
of
prospective
major
weather
modification
Parties to the first World Climate Conference, held in 1979, expressed concern
that the continued expansion of mans activities on earth may cause significant
extended regional and even global changes of climate.15 Accordingly, the World
Climate Conference called for the prevention of potential man-made changes in
climate that might be adverse to the well-being of humanity. 16
13
58
At the same time, the United Nations General Assembly resolved that climate
change was a common concern of humankind, since climate is an essential
condition which sustains life on earth 18 and called for necessary and timely
action to deal with climate change within a global framework.19 That same year,
participants at the Toronto Conference on the Changing Atmosphere called for a
comprehensive international framework that can address the interrelated
problems of the global atmosphere and recommended the reduction of carbon
dioxide emissions by 20 per cent below 1998 levels by 2005. 20 The Australian
government agreed to this aspirational target but did not back this with policy or
legislation to achieve such substantive changes.21
The First Assessment Report of the IPCC was released in 1990 and confirmed
that emissions resulting from human activities were substantially increasing the
atmospheric concentrations of greenhouse gases which would enhance the
greenhouse effect and lead to additional warming of the Earths surface.22 The
report concluded that carbon dioxide was responsible for over half of the
enhanced greenhouse effect. 23 It also concluded that atmospheric levels of
certain gases, including carbon dioxide and nitrous oxide, will adjust slowly
17
Ibid.
UN General Assembly, 1988 Resolution A/RES/43/53:Protection of global climate for present and
future generations of mankind. http://www.un.org/documents/ga/res/43/a43r053.htm at 11 June 2008.
19
Ibid.
20
Daniel Bodansky, 'The History of the Global Climate Change Regime' in Urs Luterbacher and
Detlef F. Sprinz (eds), International Relations and Global Climate Change (2001) Cambridge, The
MIT Press, 201 at 25.
21
Tim Bonyhady and Peter Christoff, 'Introduction' in Tim Bonyhady and Peter Christoff (eds),
Climate Law in Australia (2007) Sydney, The Federation Press, 1 at 1-2.
22
IPCC, WMO and UNEP, n4, Policymakers Summary, xi.
23
Ibid.
18
59
temperatures of the previous 150,000 years. 28 Sea levels were also predicted to
rise by 20 centimetres by 2030 and 65 centimetres by 2099 and the report
asserted that: even if greenhouse forcing increased no further, there would still
be a commitment to a continuing sea level rise for many decades and even
centuries, due to delays in climate, ocean and ice mass responses.29
24
Ibid.
Ibid.
26
Ibid.
27
Ibid.
28
Ibid, xxviii.
29
Ibid, xxx.
30
IPCC, 'Policymakers' Summary of the Potential Impacts of Climate Change, Report from Working
Group II to the Intergovernmental Panel on Climate Change' (Australian Government Publishing
Service, 1990) at 2-4.
25
60
The Second Assessment Report of the IPCC, released in 1995, concluded that
atmospheric concentrations of greenhouse gases including carbon dioxide,
methane and nitrous oxide had continued to increase significantly, by
approximately 30 per cent, 145 per cent, and 15 per cent, respectively. 31
Furthermore, the assessment concluded that these trends could be attributed
largely to human activities, mostly fossil-fuel use, land-use change and
agriculture. 32
The Third Assessment Report of the IPCC, released in 2001, revised its previous
estimates of likely global average surface temperature increases and concluded
that these were likely to increase by 1.4 to 5.8 degrees Celsius between 1990 and
2100.37 The assessment further asserted that there is new and stronger evidence
31
Working Group I to the Second Assessment of the Intergovernmental Panel on Climate Change,
'Second Assessment Report: Climate Change 1995; Climate Change 1995: The Science of Climate
Change - Summary for Policy-Makers' (Cambridge University Press, 1995) Section 1.
32
Ibid.
33
Ibid, Section 4.
34
Ibid, Section 1.
35
Ibid, Section 3.
36
Ibid.
37
IPCC, 'Climate Change 2001: Synthesis Report to the Third Assessment Report of the
Intergovernmental Panel on Climate Change' (Cambridge University Press, 2001) at 8.
61
that most of the warming observed over the last 50 years is attributable to human
activities.38
In relation to the effects of this warming, the assessment stated that changes in
sea level, snow cover, ice extent, and precipitation are consistent with a warming
climate near the Earths surface including:
a more active hydrological cycle with more heavy precipitation events and shifts in
precipitation, widespread retreat of non-polar glaciers, increases in sea level and
ocean-heat content, and decreases in snow cover and sea-ice extent and thickness.39
The climatic effects from this warming were predicted to include sea-level rises,
precipitation changes, more intense storms, increased intensity of droughts and
floods and loss of farming productivity. 40 The assessment further stated that
ecological productivity and biodiversity will be altered by climate change and sea
level rise, with an increased risk of extinction of some vulnerable species. 41
These increased risks would result from significant disruptions of ecosystems
from disturbances such as fire, drought, pest infestation, invasion of species,
storms, and coral bleaching events.42 Impacts on human health would include
direct impacts such as reduced cold stress in temperate countries and increased
heat stress, loss of life in floods and storms and indirect impacts from changes in
the ranges of disease vectors, water-borne pathogens, water quality, air quality,
and food availability and quality. 43
populations that inhabit small islands and low-lying coastal areas would be at
particular risk of severe social and economic effects from sea-level rise and storm
surges:
38
Ibid, 5.
Ibid, 6.
40
Ibid, 3.
41
Ibid, 9.
42
Ibid, 9, 12.
43
Ibid, 9.
39
62
many human settlements will face increased risk of coastal flooding and erosion,
and tens of millions of people living in deltas, in low-lying coastal areas, and on
small islands will face risk of displacement. Resources critical to island and coastal
populations such as beaches, freshwater, fisheries, coral reefs and atolls, and
wildlife habitat would also be at risk.44
The Third IPCC Assessment Report considered three global emissions reduction
scenarios: stabilisation at 450 ppm; stabilisation at 650 ppm; and stabilisation at
1,000 ppm. All of these scenarios would require emissions to be reduced below
1990 levels. 45 The IPCC predicted temperature increases from stabilisation at
450 ppm of 1.5 to 3.9 degrees Celsius above 1990 levels and increases of 3.5 to
8.7 degrees Celsius for stabilisation at 1,000 ppm. 46 Therefore, even at 450 ppm
some temperature increase would occur with resulting climatic impacts. The
report stated that even if carbon dioxide emissions were reduced and atmospheric
concentrations stabilised, the Earths surface air temperature would continue to
rise slowly for a century or more due to the inertia of the climate system. 47
Accordingly, it was evident that some anthropogenic climate change was
inevitable.
The Fourth IPCC Assessment Report was released in February 2007 and made a
number of strong findings regarding emerging and future changes in the climate
system.48 The report stated that its findings were based on increased scientific
certainty regarding the science of climate change compared to previous IPCC
assessment reports.
44
Ibid, 12.
Ibid, 19.
46
Ibid, 21.
47
Ibid, 17.
48
IPCC, 'Climate Change 2007: The Physical Science Basis: Summary for Policy Makers,
Contribution of Working Group I to the Fourth Assessment report of the Intergovernmental Panel on
Climate Change' (IPCC Secretariat Geneva, 2007).
45
63
The IPCC found that the linear warming trend over the previous 50 years had
been approximately 0.13 degrees Celsius per decade, nearly twice that for the
previous one hundred years. 50 Eleven of the previous twelve years ranked as the
twelve warmest years on record. 51 The report further predicted a warming of
approximately 0.2 degrees Celsius per decade for the next two decades with a
warming of approximately 1.8 to 4 degrees Celsius by 2099. 52
The IPCC identified a clear link between temperature increases and greenhouse
gas emissions and concluded that:
most of the observed increase in globally average temperatures since the mid-20th
century is very likely due to the observed increase in anthropogenic greenhouse gas
concentrations.53
The IPCC estimated that sea levels had risen by 0.17 metres during the 20th
century.54 Those sea levels were predicted to rise again between 0.18 metres to
0.59 metres by 2099. 55
49
Ibid, 4.
Ibid.
51
Ibid. Records commenced in 1850.
52
Compared to 1999. Ibid, 10-11.
53
Ibid, 8.
54
Ibid, 5.
55
Compared to 1999. Ibid, 11.
50
64
According to the IPCC, mountain glaciers and snow cover had declined with
decreases in glaciers and ice caps contributing to sea level rise. 56 The Greenland
and Antarctica ice sheets were also experiencing increased mass losses.57 Longterm changes identified in the climate system included changes in Arctic
temperatures and ice, widespread precipitation amounts, ocean salinity, wind
patterns and aspects of extreme weather including droughts, heavy precipitation,
heat waves and intensity of tropical cyclones.58
The predictions of adverse impacts did not stop there. The IPCC concluded that
continued emissions at or above current rates would, very likely, cause further
warming and induce larger changes in the climate system than those observed
during the 20th century. 59 Moreover, past and future emissions were predicted to
continue to contribute to warming and sea level rises for more than a millennium
to come due to the timescales required to remove the gases from the
atmosphere.60
56
Ibid, 5.
Ibid.
58
Ibid.
59
Ibid, 10.
60
Ibid, 13.
61
B.S. Fisher et al, 'Issues related to mitigation in the long term context' in B. Metz et al (eds),
Climate Change 2007: Mitigation. Contribution of Working Group III to the Fourth Assessment
Report of the Inter-governmental Panel on Climate Change (2007) Cambridge, Cambridge University
Press at 173.
57
65
Accordingly, the IPCC report made the following strong statements regarding the
magnitude and timescale for achieving the necessary reductions in global
greenhouse gas emissions:
using the best estimate assumption of climate sensitivity, the most stringent
scenarios (stabilizing at 445490 ppmv CO2-equivalent) could limit global mean
temperature increases to 22.4C above the pre-industrial level, at equilibrium,
requiring emissions to peak before 2015 and to be around 50% of current
levels by 2050. Scenarios stabilizing at 535590 ppmv CO2-equivalent could limit
the increase to 2.83.2C above the pre-industrial level and those at 590710 CO2equivalent to 3.24C, requiring emissions to peak within the next 25 and 55 years,
respectively (high agreement, medium evidence)(emphasis added).62
It should be noted that the IPCC predictions are based on those scientific
parameters that have met the threshold of consensus agreement within the IPCC
scientific community resulting in quite conservative predictions. Moreover, these
predictions do not incorporate the implications of a number of events which have
the potential to trigger much more drastic and abrupt changes in the climate
system. These potential occurrences include:
62
63
Ibid.
Ibid.
66
significant and sudden sea level rises from the break-up of polar ice caps
such as the West Atlantic Ice Shelf; and
SoE 2006 made the following blunt statements in relation to the existence of
climate change; climate change has always been a reality . the question, then,
is not if but how much.67 And:
climate change is undoubtedly a threat to Australias environment. Although
Australias climate is so variable that the extent of change is uncertain, there is clear
evidence for some warming and changes to rainfall distribution.68
64
67
According to the IPCC the Australian climate of the 21st century is virtually
certain to be warmer, with changes in extreme events and:
floods, landslides, droughts and storm surges are very likely to become
more frequent and intense;
large areas of mainland Australia are likely to have less soil moisture;
70
IPCC, 'Climate Change 2007: Impacts, Adaptation and Vulnerability, Contribution of Working
Group II to the Fourth Assessment Report of the Intergovernmental Panel on Climate Change' (IPCC
Secretariat, 2007) at 509.
68
Reports have shown that Australian temperatures are already increasing and are
doing so at a more rapid rate than the global average. 72 According to SoE 2006,
the average temperature across Australia rose by 0.82 degrees Celsius between
1910 and 2004.73 Since 1950, that temperature increase was almost 0.2 degrees
Celsius per decade.74
Since 1950, the east coast, Victoria and south-west Australia have all experienced
substantial rainfall decline. 75 According to the Technical Report, Australian
average temperatures have increased by 0.9 degrees Celsius since 1950. 76 This
has exacerbated the recent Australian droughts where warming increases water
demand and surface water loss. 77
71
Ibid.
SoE 2006, n65, 27.
73
Ibid, 25. According to the Australian Bureau of Meteorology Annual Australian Climate Statement
2006, issued 3 January 2007, Australian annual mean temperatures have now increased by
approximately 0.9C since 1910,
http://www.bom.gov.au/announcements/media_releases/climate/change/20070103.shtml at 11 June
2008.
74
SoE 2006, n65, 27.
75
CSIRO and Australia Bureau of Meteorology, n66, 6.
76
Ibid, 6.
77
Ibid, 8.
72
69
Sea surface temperatures have also risen by up to 0.28 degrees Celsius since
1950.78 Future increases in ocean acidity are predicted in the Australian region.79
Over the period 1920-2000, Australian sea levels have risen by an estimated
1.2mm per year and there is potential for significant increases in inundation due
to higher mean sea level and more intense weather systems.80
The Technical Report also estimated that annual warming over Australia by 2030,
compared to 1990, would be approximately 1 degree Celsius with warmings of
0.7 to 0.9 degrees Celsius in coastal areas and 1 to 1.2 degrees Celsius inland.81
Projected warming for Australia by 2050 and 2070 respectively are
approximately 1.2 and 1.8 degrees Celsius under a low emissions scenario and
2.2 and 3.4 degrees Celsius under a high emissions scenario. 82 The Technical
Report identified a 30 per cent probability of warming above 4 degrees Celsius
for inland Australia, in 2070, under a high emissions scenario.83
78
70
The Stern Review asserted that climate change..is the greatest and widestranging market failure ever seen. 86 The Stern Review concluded that the stocks
of greenhouse gases in the atmosphere were rising and that this was the result of
human activity.87 Levels of greenhouse gases in the atmosphere were estimated
to be around 430 ppm carbon dioxide equivalent.88 The Stern Review estimated
that concentrations of 550 ppm, double pre-industrial levels, could be reached by
as early as 2035.89 At that level, the Stern Review concluded that there was at
least a 77 per cent chance, and up to a 99 per cent chance, of a global average
temperature rise exceeding 2 degrees Celsius. 90
Some of the predicted impacts of that warming are rising sea levels, increased
incidences of floods and declining crop yields. The Stern Review estimated that
up to 200 million people could become displaced by the middle of the century
due to climatic impacts.91 The economic cost of warming of 2-3 degrees Celsius
was predicted to be 3 per cent of global world output.92 With 5-6 degrees Celsius
85
Nicholas Stern The Economics of Climate Change: The Stern Review (Cabinet Office, HM
Treasury 2006), http://www.hmtreasury.gov.uk/independent_reviews/stern_review_economics_climate_change/sternreview_index.cf
m, at 11 June 2008.
86
Ibid, i.
87
Ibid, iii.
88
Ibid.
89
Ibid.
90
Ibid.
91
Ibid, vi.
92
Ibid, ix.
71
warming, that cost could be up to 10 per cent of global gross domestic product
(GDP) and could involve reductions of up to 20 per cent in consumption per
head. 93
The Stern Review estimated that to stabilise greenhouse gases at 550 ppm,
emissions would be need to be reduced by 25 per cent below current levels by
2050.94 The Stern Review predicted that the annual cost of emissions reductions
consistent with a trajectory leading to stabilisation at 550 ppm would be
approximately 1 per cent of GDP by 2050. 95 In comparison, the social cost of
carbon emitted today, if society remained on the business as usual trajectory, was
estimated to be approximately US$85 per tonne of carbon dioxide.96 Moreover,
the Stern Review concluded that shifting to a lower emissions trajectory would
have global net benefits of around US$2.5 trillion. 97 It further estimated that
markets for low-carbon energy products are likely to be worth at least US$500
billion per year by 2050. 98
93
Ibid.
Ibid, xi. Sir Nicholas Stern has since stated that effective action to respond to climate change
requires global emissions to fall by at least 50% relative to 1990 levels by 2050[and] agreement by
developed countries to take on immediate and binding national targets of 20% to 40% by 2020, and
to commit to reductions of at least 80% by 2050 with an expectation that developing countries would
take on binding national targets by 2020. Nicholas Stern, 'Key Elements of a Global Deal on Climate
Change' (London School of Economics and Political Science, 2008) at 5-6.
95
Ibid, xiii.
96
Ibid.
97
Ibid, xvii.
98
Ibid, xvi.
94
72
It further
The UNFCCC was the first binding, international legal instrument to address the
issue of climate change and it has established the overarching principles and
institutional arrangements for a regime to address climate change. There are
currently 192 parties to the UNFCCC including Australia and the US.100 The
ultimate objective of the UNFCCC is the:
stabilisation of greenhouse gas concentrations in the atmosphere at a level that
would prevent dangerous anthropogenic interference with the climate system. Such
a level should be achieved within a time-frame sufficient to allow ecosystems to
adapt naturally to climate change, to ensure that food production is not threatened
99
73
The term global atmosphere is not defined in the convention while the climate
system is described as the totality of the atmosphere, hydrosphere, biosphere and
geosphere and their interactions. 104
101
74
mitigation obligations for developed countries through the Kyoto Protocol to the
UNFCCC in 1997.
In terms of the economic costs of the general duty to reduce emissions, the
UNFCCC states that polices and measures which address climate change should:
be cost-effective so as to ensure global benefits at the lowest possible cost. To
achieve this, such policies and measures should take into account different socioeconomic contexts, be comprehensive, cover all relevant sources, sinks and
reservoirs of greenhouse gases and adaptation, and comprise all economic
sectors.108
Furthermore, the UNFCCC states that parties have a right to, and should,
promote sustainable development; that economic development is essential for
adopting measures to address climate change; and that parties should promote an
open international economic system that would lead to sustainable economic
growth and development.109
There are only two particular references to the requir ement for domestic
emissions reductions policies in the text of the UNFCCC.
The UNFCCC
108
75
The decision-making powers of the parties reside in the Conference of the Parties
(COP) which meets annually to discuss implementation issues relating to the
UNFCCC. The UNFCCC also establishes a United Nations secretariat to support
the administration of the climate change regime (UNFCCC Secretariat). 112
Progress towards the objectives of the UNFCCC is monitored through the regular
submission of national greenhouse gas inventories and progress reports on
policies and measures, known as National Communications, to the COP which
are reviewed and made publicly available. 113 Developing countries are provided
with the agreed full costs of incurred in providing this national information. 114
The UNFCCC further commits the parties to the development and transfer of
technologies, practices and processes that reduce greenhouse gas emissions.115 In
addition, and in conformity with the notion of common but differentiated
responsibilities, developed country parties are responsible for the provision of
financial resources, environmentally sound technological and adaptation
assistance to participating developing countries. 116
These were
112
76
costs and benefits of the agreement.119 The Kyoto Protocol has currently been
ratified by 181 countries and one regional economic integration organisation.120
Australia is now a party to, and bound by, the UNFCCC and the Kyoto
Protocol. 121 The US is a party to the UNFCCC and is bound by its general
obligations to reduce global greenhouse gas emissions. However, the US is not a
party to the Kyoto Protocol and is not obliged to comply with the quantitative
emissions reduction commitments under that agreement.122
The first Commitment Period, under the Kyoto Protocol, will run from 2008 to
2012. 123
beyond 2012. Those remain under negotiation by the parties. 124 Annex-1 parties
are allocated emissions reductions targets during the first commitment period.
The targets for the first commitment period vary from 92 per cent to 110 per cent
of reported 1990 greenhouse gas emission levels according to the circumstances
negotiated by each Annex-1 party. 125 Overall, the Kyoto Protocol seeks to
achieve a minimum global emissions reduction of 5 per cent below 1990 levels
by 2012. Parties were obliged to make demonstrable progress towards their
targets by 2005 although this duty was not enforced.126
119
Vincent Cusack, 'Perceived Costs versus Benefits of Meeting the Kyoto Target for Greenhouse
Gas Emission Reduction: the Australian Perspective' (1999) 16(1) Environmental and Planning Law
Journal 53 at 54-55.
120
UNFCCC, Status of Ratification - as at 13 May
2008http://unfccc.int/kyoto_protocol/background/status_of_ratification/items/2613.php at 11 June
2008.
121
Australia signed the Kyoto Protocol on 29 April 1998. Following the change of government in
2007, the instrument of ratification was deposited with the UNFCCC Secretariat on 12 December
2007 and entered into force on 11 March 2008.
122
The US signed the Kyoto Protocol on 12 November 1998 but did not ratify the agreement.
http://unfccc.int/files/kyoto_protocol/status_of_ratification/application/pdf/kp_ratification.pdf at 11
June 2008. As a non-party, the US is also not able to use the flexibility mechanisms under the Kyoto
Protocol to assist it in meeting the general emissions reduction obligation under the UNFCCC.
123
Kyoto Protocol, n2, Articles 3.1 and 3.7.
124
In order to commence in 2012, it is envisaged that parties will reach agreement on the terms of the
Post 2012 agreement by the end of 2009.
125
Ibid, Annex B. Australia, for example, was allocated a target of 110 per cent of 1990 levels whilst
the EU Bubble must achieve 92 per cent. The targets are therefore based primarily on political
bargaining rather than on a mathematical calculation of required emissions reductions.
126
Ibid, Article 3.2.
77
At the beginning of the first commitment period, each Annex-1 party will be
assigned a number of Assigned Amount Units (AAUs) calculated in accordance
with its permitted level of emissions for the commitment period. Each AAU
represents a permit to emit one tonne of carbon dioxide equivalent. Eligible
Annex-1 parties may then buy or sell their AAUs through emissions trading.127
Parties may also create additional allowances through the implementation of
eligible emissions reductions projects in developing countries under the CDM.128
Furthermore, Annex-1 parties may chose to implement such emission reduction
projects in other developed party countries, such as the economies in transition,
in return for allowances (JI). 129
The use of these mechanisms is limited to the extent that the Kyoto Protocol
rules require that domestic actions constitute a significant element of the
efforts made by each parties to meet its target under the Kyoto Protocol. 130
Significant element is not yet defined although parties must demonstrate in
their national communications how their use of the mechanisms is supplemental
to domestic action. 131
127
78
In
particular, the compliance model of the climate change regime was based on an
existing international agreement to regulate the atmosphere. The concept of
tradeable instruments as a regulatory mechanism was also derived from
experiences in the US SO2 Trading Scheme.
analyse the features and effectiveness of those models prior to an analysis of the
effectiveness of the overall climate change regime.
The aim of the Montreal Protocol was to achieve the global phase-out of the
production of certain substances harmful to the ozone layer including
chlorofluorocarbons and halons.
132
Vienna Convention for the Protection of the Ozone Layer (the Vienna Convention ) Vienna, 22
March 1985, 26 International Law Materials 1529 (1987),(entered into force 22 September 1988).
133
Montreal Protocol on Substances that Deplete the Ozone Layer (the Montreal Protocol) Montreal,
16 September 1987, 26 International Law Materials 1550 (1987) (entered into force 1 January 1989).
79
Protocol. 134 The specific target requirements for the phase-out of harmful
substances were contained in the Montreal Protocol in the form of calculated
levels of consumption and production of ozone-depleting substances. 135 Similar
to the Kyoto Protocol, the means for achieving the level of reductions was left to
the discretion of each party. 136 Unlike the Kyoto Protocol, the Montreal Protocol
also included a provision for the acceleration of those targets during a
commitment period without the full consensus of the parties.137
Interestingly, the Montreal Protocol also included a ban on trade between parties
and non-parties to the treaty for the import and export of ozone-depleting
substances and products containing, or made with, ozone depleting substances.138
This provision was designed to overcome concerns regarding free-riders and the
potential export of production to non-signatory countries. 139 It is unfortunate that
a similar provision was not included in the climate change regime as this has
resulted in a loophole whereby non-parties may benefit from the production and
sale of high emissions intensity goods and services.
The Montreal Protocol made special provision for the treatment of developing
countries by providing a ten year grace period where the calculated level of
consumption was less than 0.2 kilograms per capita.140 Implementation of the
elimination of harmful substances, by developing countries, was then linked to
134
191 countries ratified the Vienna Convention and Montreal Protocol. United Nations Environment
Programme Ozone Secretariat, Status of Ratification, http://ozone.unep.org/Ratification_status/ at
11 June 2008.
135
Montreal Protocol, n133, Articles 2 and 3.
136
The similarities and differences between the Montreal Protocol and the Kyoto Protocol are
discussed further at page 81 of this thesis.
137
Montreal Protocol, n133, Article 2(9). Where consensus has failed the decision may be taken by
two thirds of the parties present and voting where 50 per cent of total consumption is represented.
Meinhard Doelle, From Hot Air to Action? Climate Change, Compliance and the Future of
International Environmental Law (2005) Toronto, Thomson Canada at 14.
138
Duncan Brack, 'The Use of Trade Measures in the Montreal Protocol' in Phillipe G. Le Prestre,
John D. Reid and E. Thomas Morehouse Jr (eds), Protecting the Ozone Layer: Lessons, Models and
Prospects (1998) Boston, Kluwer Academic Publishers, 99 at 100. However, due to the practicalities
of detection, the ban on products made with ozone-depleting substances was not implemented.
139
Ibid, 101.
140
1990 Amendment to the Montreal Protocol (entered into force 7 March 1991), Article 5(1).
80
environmental
agreement
had
linked
pollution
reduction
141
81
The effectiveness of the Montreal Protocol also enhances the global achievement
of greenhouse gas emissions reductions. Ozone-depleting substances are also
greenhouse gases that contribute to the radiative forcing of climate change.151 In
and Effectiveness of International Commitments: Theory and Practice (1998) Cambridge, The MIT
Press, 137 at 137.
147
Ibid, 147.
148
The 1990 Amendment to the Montreal Protocol (the London Amendment); the 1992 Copenhagen
Amendment to the Montreal Protocol (the Copenhagen Amendment); the 1997 Amendment to the
Montreal Protocol (the Montreal Amendment) and the 1999 Amendment to the Montreal Protocol
(the Beijing Amendment). These adjustments entered into force on 7 March 1991, 23 September 1993,
5 August 1996, 4 June 1998 and 28 July 2000, respectively. United Nations Environment Programme
Ozone Secretariat, Evolution of the Montreal Protocol
http://ozone.unep.org/Ratification_status/evolution_of_mp.shtml at 11 June 2008.
149
United Nations Environment Programme, 'Key Achievements of the Montreal Protocol To Date'
(UNEP, 2007), http://ozone.unep.org/Publications/MP_Key_Achievements-E.pdf at 11 June 2008.
See also United Nations Environment Programme, 'A Success in the Making: The Montreal Protocol
on Substances that Deplete the Ozone Layer' (UNEP, 2007).
150
Ibid.
151
GJM Velders et al, 'The Importance of the Montreal Protocol in Protecting Climate' (2007)
104(12) Proceedings of the National Academy of Science 4814,
http://www.mnp.nl/en/publications/2007/The_importance_of_the_Montreal_Protocol_in_protecting_
climate.html at 11 June 2008.
82
152
United Nations Environment Programme, Combating Climate Change Given Big Confidence
Boost in Canada (Montreal/Nairobi, 22 September 2007),
http://new.unep.org/Documents.Multilingual/Default.asp?DocumentID=517&ArticleID=5671&l=en
at 11 June 2008.
153
Maryanne Macleod, The Regulatory Process and Linkages Between the Montreal Process and the
Kyoto Protocol, Ozone, UV and Climate (2006)
<http://www.niwa.cri.nz/__data/assets/pdf_file/0018/41256/Macleod.pdf> at 11 June 2008 at 2; Tim
Flannery, The Weather Makers: The History and Future Impact of Climate Change (2005) Melbourne,
The Text Publishing Company at 220.
83
The Clean Air Act amendment was part of the US Acid Rain Programme aimed
at reducing the cost of curbing sulphur dioxide emissions whilst requiring the
power sector to reduce sulphur dioxide emissions by 50 per cent over 15 years to
8.95 million tonnes per year. 156 The Acid Rain Programme was enacted through
Federal legislation and implemented by State-based environmental agencies.
Phase 1 of the SO2 Scheme ran from 1995 to 1999 with Phase 2 running from
2000 onwards. Phase 1 addressed the largest SO2 emitting sources with further
units added in Phase 2. 157 Small emitters were able to opt-in to the SO2
Scheme.158
The SO2 Scheme was based on a cap and trade system with an allocated, absolute
emissions ceiling.159 The cap and trade system created a market in tradeable SO2
emissions instruments with an imposed limit on the total permitted emissions
based on the desired environmental outcome. The use of a cap and trade system
154
Title IV of the Clean Air Act, enacted as part of the Clean Air Act Amendments of 1990, Pub. L.
No. 101-549, 104 Stat. 2399 (1990); Clean Air Act, 401 et seq.; 42 United States Congress 7651 et
seq. Stephen Harper, 'Tradeable Permits: Practical Lessons from the U.S. Experience' in Akihiro
Amano et al (eds), Climate Change: Policy Instruments and their Implications, Proceedings of the
Tsukuba Workshop of the Intergovernmental Panel on Climate Change Working Group III, Tsukuba
(1994) Tsukuba, World Meteorological Organization/United Nations Environmental Programme, 132.
155
LECG Economics Finance, 'Emissions Trading Market Study: Report to the Ontario Ministry of
Environment' (2003) at 66.
156
International Energy Agency, International Emission Trading: From Concept to Reality (2001)
France, Organisation for Economic Development/ International Energy Agency at 30.
157
LECG, n155, 10.
158
Ibid, 10.
159
Markus W. Gehring and Charlotte Streck, 'Emissions Trading: Lessons from SOx and NOx
Emissions Allowance and Credit Systems Legal Nature, Title, Transfer, and Taxation of Emission
Allowances and Credits' (2005) 35(4) Environmental Law Reporter 10219 at 10220.
84
Under the SO2 Scheme, each utility received a number of free allowances based
on a legislative formula although the number of allowances could be adjusted by
Congress. 160 Additional allowances were able to be purchased through an annual
auction held by the US Environmental Protection Agency (US EPA).161 The SO2
Scheme permitted unrestricted emissions trading and allowances were valued
equally regardless of location. 162 Allowances were able to be traded nationally
with no requirements for prior approval or restrictions on the type of purchaser
provided that they were registered. 163 Trades were recorded by the US EPA
through an Allowance Tracking System with each allowance identified through a
unique serial number. 164
160
85
This is
and
the
The compliance regime to the SO2 Scheme included the compulsory installation
of Continuous Emissions Monitoring Systems (CEMS) at emissions sources to
record hourly emissions. 170 Emission of excess SO2 resulted in a penalty liability
of US$2000 per tonne, adjusted annually for inflation, plus an obligation to
submit an equal number of allowances to cover the excess emissions. Similarly,
the Kyoto Protocol requires excess allowances to be surrendered to rectify the
non-compliance. However, no financial penalty is imposed under the Kyoto
Protocol. The operation of this penalty scheme remained largely untested due to
the high level of compliance with the scheme by participants.171 For the initial
three year period in Phase 1, it was reported that all required allowances were
surrendered with no violations or exemptions from the Title IV requirements.172
Moreover, there was over 7.6 million tonnes of aggregate over-compliance by
Phase 1 participants.173 The high level of compliance with this regime may be
explained by the availability of cost-effective alternatives to address SO2
emissions. Sources had the option of switching to a fuel with reduced sulphur
content or installing scrubbers both of which required lower than anticipated
167
1990 Amendments to the Clean Air Act, n154, section 403 (f).
Markus W. Gehring and Charlotte Streck, 'Emissions Trading: Lessons from SOx and NOx
Emissions Allowance and Credit Systems Legal Nature, Title, Transfer, and Taxation of Emission
Allowances and Credits' (2005) 35(4) Environmental Law Reporter 10219 at 10222, 10223. Cf Ormet
Corp v Ohio Power Co 98 F.3d 799, 27 ELR 20302 (4th Cir. 1996).
169
1990 Amendments to the Clean Air Act, n154, section 403 (f).
170
US EPA, n166, 3-13.
171
LECG, n155, 11.
172
A. Denny Ellerman et al, n162, 109.
173
Ibid, 110.
168
86
It must be noted, though, that the initial performance of the market in allowances
was subject to criticism due to its lack of cost-effectiveness.179 This was largely
blamed on the bubble policy under the trading scheme which allowed those
large firms with multiple emission points to be subject to a single, overall,
174
Ibid, 88.
Ibid, 319.
176
Tom Tietenberg et al, 'International Rules for Greenhouse Gas Emissions Trading: Defining the
principles, modalities, rules and guidelines for verification, reporting and accountability'
(UNCTAD/GDS/GFSB?Misc.6, United Nations Conference on Trade and Development, 1999) at 27;
US EPA, n166, 1-3. See also Richard B Stewart and Phillipe Sands, 'The Legal and Institutional
Framework for a Plurilateral Greenhouse Gas Emissions Trading System' in Greenhouse Gas Market
Perspectives Trade and Investment Implications of the Climate Change Regime: Recent Research on
Institutional and Economic Aspects of Carbon Trading, UNCTAD/DITC/TED/Misc.9 (2001) United
Nations, 5 at 14.
177
A. Denny Ellerman et al, n162, 282, Table 10.4.
178
Ibid, 255.
179
A. Denny Ellerman, Paul L Joskow and David Harrison Jr, 'Emissions Trading in the U.S.:
Experience, Lessons and Consideration for Greenhouse Gases' (Pew Center for Global Climate
Change, 2003) at 32.
175
87
endeavour, it is therefore crucial to identify the design elements necessary for the
successful creation and implementation of the climate change regime. These
fundamental concepts are discussed in the following paragraphs.
180
Stephen Harper, 'Tradeable Permits: Practical Lessons from the U.S. Experience' in Akihiro
Amano et al (eds), Climate Change: Policy Instruments and their Implications, Proceedings of the
Tsukuba Workshop of the Intergovernmental Panel on Climate Change Working Group III, Tsukuba
(1994) Tsukuba, World Meteorological Organization/United Nations Environmental Programme, 132
at 133.
181
Scott Atkinson and Tom Tietenberg, 'Market Failure in Incentive Based Regulation: The Case of
Emissions Trading' (1991) 21(1) Journal of Environmental Economics and Management 17 at 18.
88
This thesis seeks to analyse the effectiveness of the existing legal response to
climate change and to identify aspects for enhancement or reform. To do so, it is
necessary to identify those key principles of effectiveness against which these
emerging legal approaches may be critiqued.
Regulation
Since the 1970s, regulators have relied upon direct regulation, or command and
control, to respond to instances of environmental degradation by prohibiting or
placing restrictions on the carrying out of environmentally harmful activities.182
Given the urgency of the need to respond to climate change, and achieve
significant domestic reductions in emissions, direct regulation has a critical role
to play in any effective legal regime. An effective regulatory approach should
impose environmental standards, or emission targets, on liable emitting entities
as well as using land use controls and environmental impact assessment to assess
and minimise significant emissions from proposed development and other
182
Neil Gunningham, Peter Grabosky, and Darren Sinclair, Smart Regulation: Designing
Environmental Policy (1998) Oxford, Clarendon Press at 38.
89
activities. 183 To be effective, such regulation must establish clear and direct,
legally enforceable, duties to restrict emissions in conjunction with a system for
the accurate monitoring and supervision of actual levels of emissions. 184 As noted
by one commentator, laws on the book are one thing. Laws implemented and
enforced are another. 185
The creation of broad guiding directions falls within the role of the legislature
while the creation of more specific standards and responsibility for
implementation falls within the realm of the executive. As commented:
much of the legal work in moving beyond the carbon economy falls on national
legislatures and their designated agents in the executive branch...The judiciary also
has a role to play.186
Liability
An effective legal regime to respond to climate change must also provide a series
of civil and criminal liability provisions to penalise unlawful emissions and
allocate responsibility for the harmful impacts of greenhouse gas emissions.
With respect to present day emissions, graded sanctions must be provided for
identified instances of non-compliance with emission restrictions which are able
to be varied in severity according to the level of inadvertence or recklessness of
183
Ibid, 39.
These regulatory issues are considered in further detail throughout this thesis.
185
Donald N Zillman et al, 'Overview and Conclusion' in Donald N Zillman et al (eds), Beyond the
Carbon Economy: Energy Law in Transition (2008) Oxford, Oxford University Press, 543 at 551
186
Ibid, 550.
184
90
the wrongdoing. 187 The effective interpretation of the law, and imposition of these
liabilities, will generally fall within the realm of the domestic judiciary. The
judicial interpretation and application of these regulations and liability provisions
will play a significant role in the ultimate effectiveness of these regimes in
promoting the reduction of emissions and responding to the impacts of climate
change. Accordingly, those judicial determinations may be a help or a hindrance
to the implementation of the overall legal regime:
typically the courts take legislative or executive enactments and give them a broad
interpretation to allow the consideration of carbon issues. Less optimistic
perspectives on the judiciary come from authors..who question the independence of
courts especially in their inability to force members of the bureaucracy to comply
with what the legislature has written down.188
In the context of climate change, financial liabilities must also accrue for the past
emission of greenhouse gases. Until recently, the emission of greenhouse gases
into the atmosphere was largely unfettered and, given the cumulative nature of
atmospheric concentrations, these emissions contributed to the emergent adverse
impacts of climate change.
The polluter pays principle emphasises the responsibility of polluters for the full
environmental and social cost of their polluting activities. Moreover:
forcing those who create environmental risks to bear the costs of damage can create
incentives for efficient precaution.189
187
Ian Ayres and John Braithwaite, Responsive Regulation: Transcending the Deregulation Debate
(1992) New York, Oxford University Press; Clifford S Russell, 'Environmental Enforcement' in Tom
Tietenberg (ed), Innovation in Environmental Policy: Economic and Legal Aspects of Recent
Developments in Environmental Enforcement and Liability (1992) Hants, Edward Elgar, 215.
188
Zillman et al, n185, at 550.
189
Tom Tietenberg, 'Introduction and Overview' in Tom Tietenberg (ed), Innovation in
Environmental Policy: Economic and Legal Aspects of Recent Developments in Environmental
Enforcement and Liability (1992) Hants, Edward Elgar, 1 at 5.
91
Market Mechanisms
It must be accepted that there is no single legal instrument which will be effective
in addressing all environmental concerns in all contexts. As noted:
despite decades of experimentation, the holy grail of optimal environmental
regulation has continued to elude policy makers and regulatory theoristsneither
traditional command and control regulation nor the free market provide satisfactory
answers to the increasingly complex and serious environmental problems which
confront the world. This has led to a search for alternatives more capable of
addressing the environmental challenge and, in particular, to the exploration of a
broader range of policy tools such as economic instruments, self-regulation and
information-based strategies. 193
Regulation alone is not necessarily the most effective tool by which to address
urgent international environmental concerns. Indeed, in some circumstances it
190
Although, in recent years there has been a remarkable convergence of tort law and statutory law in
the environmentalarea, Susan Rose-Ackerman, 'Environmental Liability Law' in Tom Tietenberg
(ed), Innovation in Environmental Policy: Economic and Legal Aspects of Recent Developments in
Environmental Enforcement and Liability (1992) Hants, Edward Elgar 223 at 223.
191
The application of tortious principles to climate change related harm is discussed further in
Chapter Six.
192
See Donald Dewees, 'Tort Law and the Deterrence of Environmental Pollution' in Tom Tietenberg
(ed), Innovation in Environmental Policy: Economic and Legal Aspects of Recent Developments in
Environmental Enforcement and Liability (1992) Hants, Edward Elgar, 139.
193
Neil Gunningham, Peter Grabosky, and Darren Sinclair, n182, 37.
92
194
93
include strong duties to reduce emissions, within a capped market, and the
selected cap must accord with scientific recommendations.197 In this respect, a
strong regulatory approach is able to serve as the backbone to the optimal
operation of the carbon market system and, together, these mechanisms may
complement one another in reaching common environmental, economic and legal
goals.
Consequently,
an effective
legal response
to the challenging
global
clear, transparent and consistent rules and duties for participants in the
carbon market;200
197
A stringent cap is also necessary to create demand, and promote trade, in the market system.
Driesen, ibid, 59.
198
Neil Gunningham, Peter Grabosky, and Darren Sinclair, n182, 90.
199
These features are discussed in detail in Chapter Seven.
200
Richard F. Kosobud, 'Emissions Trading Emerges from the Shadows' in Richard F. Kosobud (ed),
Emissions Trading: Environmental Policy's New Approach (2000) New York, John Wiley and Sons,
3 at 29; Robert Stavins, 'What Do We Really Know About Market-Based Approaches to
Environmental Policy? Lessons from Twenty-Five Years of Experience' in Richard F. Kosobud (ed),
Emissions Trading: Environmental Policy's New Approach (2000) New York, John Wiley and Sons,
49 at 55.
94
201
Richard B Stewart and Phillipe Sands, 'The Legal and Institutional Framework for a Plurilateral
Greenhouse Gas Emissions Trading System' in Greenhouse Gas Market Perspectives Trade and
Investment Implications of the Climate Change Regime: Recent Research on Institutional and
Economic Aspects of Carbon Trading, UNCTAD/DITC/TED/Misc.9 (2001) United Nations, 5 at 10
and Tom Tietenberg 'Implementation Issues: A General Survey' in United Nations Conference on
Trade and Development (ed), Combating Global Warming: study on a global system of tradeable
carbon emission entitlements (1992) New York, United Nations, 127 at 133. See also Joe Motha,
'Tradeable Permits: Terms and Taxonomy' in Bureau of Transport Economics (ed), Trading
Greenhouse Emissions: Some Australian Perspectives (1998) Canberra, Bureau of Transport
Economics, 25; Zhong Xiang Zhang, 'The Design and Implementation of an International Trading
Scheme for Greenhouse Gas Emissions' (2002) 39(4) Peace Research Abstracts 459 and Kjell Roland,
'From Offsets to Tradeable Entitlements' in United Nations Conference on Trade and Development
(ed), Combating Global Warming: study on a global system of tradeable carbon emission
entitlements (1992) New York, United Nations, 23.
202
Richard F. Kosobud, n200, 25.
203
Richard Baron and Stephen Bygrave, 'Towards International Emissions Trading: Design
Implications for Linkages' (OECD, IEA, 2002) at 38-39 and 58. Erik Haites, 'Harmonisation Between
National and International Tradable Permit Schemes' (Paper presented at the OECD Global Forum on
Sustainable Development: Emissions Trading 17-18 March 2003 Paris, Greenhouse Gas Emissions
Trading and Project Based Mechanisms, Paris, 2003) at 108.
95
CONCLUDING COMMENTS
Vulnerable
communities are more at risk from the threat of climate change caused by these
global concentrations of greenhouse gases in the atmosphere yet the majority of
emissions have originated historically in less vulnerable, developed nations. This
differs to other environmental pollution problems whereby emissions, even
through primarily causing transboundary harm, nevertheless do have some direct,
localised, adverse impact.
This absence of a negative feedback loop for large scale emitters appears to have
been a significant factor in negotiations as to the specific levels of emission
reductions imposed under the Kyoto Protocol. In addition, the global nature of
climate change was harnessed to provide justification for the use of tradeable
emission instruments as a primary tool for achieving global reductions in
emissions.
avoidance of adverse climate change, at the least economic cost, also played a
significant role. The regulatory design of the climate change regime was driven
by the need to facilitate the operation of these flexible market mechanisms. The
publicised success of the US SO2 Scheme in using these tradeable instruments,
combined with the stories of success of the compliance regime to the Montreal
Protocol, were together regarded as an optimal regulatory framework for
achieving necessary emission reductions at a global level.
Such optimism
prevented the negotiating parties from looking beyond the commercial gimmick
96
and potential dollar value of the future carbon market to consider whether
sufficient duties, obligations and enforcement mechanisms were in place to
achieve the ambitious reductions actually required to avoid adverse
anthropogenic climate change. The optimism of negotiators also appears to have
prevented the parties from considering whether an effective framework had been
created, between the UNFCCC and the Kyoto Protocol, to optimise the operation
of the carbon markets within an effective legal framework for the implementation,
operation and enforcement of the emission reduction duties.
97
INTRODUCTION
The architecture of the international climate change regime has been designed to
address the environmental and social concerns of adverse climate change through
the imposition of obligations to lower global greenhouse gas emission levels.
The United Nations (UN) Framework Convention on Climate Change (the
UNFCCC) 2 was the first binding international legal instrument to address the
issues of climate change.
At the first Conference of the Parties (COP) to the UNFCCC, in 1995, the parties
launched negotiations to agree on specific greenhouse gas emissions reduction
commitments for industrialised countries. The Kyoto Protocol to the UNFCCC4
was later adopted on 11 December 1997 and came into force on 16 February
2005 following worldwide debate as to the global economic implications of
This chapter expands upon previous analysis of the international climate change regime researched
and written by this author in the following papers: Nicola Durrant and Rowena Maguire, An
Integrated Legal Approach to Global Environmental Governance: Combating Climate Change,
Drought and Deforestation, (2007) Volume 9: Special Edition on Global Governance, Canberra Law
Review 65; Donald Feaver and Nicola Durrant, Architectures of International Regulation(2007)
Working Paper, Queensland University of Technology; Brisbane and Donald Feaver and Nicola
Durrant, A Regulatory Analysis of International Climate Change Regulation (forthcoming 2008)
Special Issue on Global Warming, Law & Policy Journal.
2
United Nations Framework Convention on Climate Change, opened for signature on 4 June 1992,
31 ILM 849 (entered into force on 21 March 1994) (the UNFCCC).
3
UNFCCC, n2, Article 2.
4
Kyoto Protocol to the United Nations Framework Convention on Climate Change, opened for
signature 16 March 1998 (entered into force on 16 February 2005) (the Kyoto Protocol).
98
The UNFCCC and Kyoto Protocol are both international agreements, reached
through international consensus, that are aimed at reducing anthropogenic
greenhouse gas emissions to avoid or reduce the adverse effects of climate
change (together the climate change regime). These agreements recognised that
climate change is an international environmental concern and requires
cooperative global efforts to minimise its adverse effects. Although global, the
problem is not homogeneous.
system against climate change should be appropriate for the specific conditions
of each party and does not dictate the specific method of domestic attainment of
those emission reductions targets. 6 Parties are able to choose which of the
greenhouse gases, from the collection of six regulated gases, they will emphasise
in their domestic mitigation activities. Parties may also elect to manage domestic
land use management practices and carbon sinks to control net national
emissions. 7
William D Nordhaus, 'To Slow or Not to Slow: the Economics of the Greenhouse Effect' (1991) 101
(July 1991) The Economic Journal 920; Alan Manne and Richard Richels, Buying Greenhouse
Insurance: The Economic Costs of Carbon Dioxide Emission Limits (1992) Cambridge, England, The
MIT Press; Samuel Frankhauser, Valuing Climate Change: The Economics of the Greenhouse (1995)
London, Earthscan Publications.
6
UNFCCC, n2, Article 3(4).
7
Kyoto Protocol, n4, Article 3(3).
99
The Kyoto Protocol also contains a range of innovative policy tools which are
aimed at assisting parties to meet their emission reduction obligations flexibly at
the least economic cost. Known as the flexibility mechanisms, these elective
measures encompass international emissions trading, the Clean Development
Mechanism (CDM) and Joint Implementation (JI). The mechanism of emissions
trading has been described as the cornerstone of the Kyoto Protocol and is
intended to facilitate the abatement of emissions in the most cost-effective
manner.8 The climate change regime is designed to harness financial instruments
to address the inherent tension between the immediate priorities of society in its
use of goods and services that use fossil fuels, and generate greenhouse gas
emissions, and the long-term imperatives of maintaining a sustainable
environment to support humankind. As noted by one commentator:
the Kyoto Protocol is both innovative and groundbreaking. There is no other treaty
which defines a new international commodity; sets the rules on how this commodity
can be created, transferred, used; harnesses market forces by creating supply and
demand through binding targets; and finally involves the private sector in the
implementation of the Mechanism. The Kyoto Protocol makes us embark on an
international market experiment.9
Benjamin Richardson, 'Climate Law and Economic Policy Instruments: A New Field of
Environmental Law' (2004) [2004](1) Environmental Liability 19 at 22; Annie Petsonk, Daniel J
Dudek and Jospeh Goffman, 'Market Mechanisms and Global Climate Change: An Analysis of Policy
Instruments' (Paper presented at the Trans-Atlantic Dialogues on Market Mechanisms: Bonn 23
October 1998 and Paris, 27 October 1998, 1998) at 3.
9
Charlotte Streck, 'The Governance of the Clean Development Mechanism: The case for strength and
stability' (2007) 2(Special Issue: The Kyoto Protocol and Carbon Finance) Environmental Liability 91
at 91.
100
The chapter analyses and critiques the architecture of the international climate
change regime.
objectives, structure and composition of the climate change regime in terms of its
jurisdictional scope, discretionary depth, rule-making, adjudication and
enforcement functions. Potential grounds for liability for unrestricted greenhouse
gas emissions, under international law, are also considered briefly in respect of
state responsibility for transboundary harm and international human rights
principles. This analysis concludes that the architecture of the climate change
regime is extraordinarily complex.
THE
OBJECTIVES
OF
THE
REGIME:
AVOIDING
ADVERSE
CLIMATE CHANGE
At the time of creation of the UNFCCC, in 1992, there was significant scientific
and political doubt that climate change was a threat to modern society. In the face
of this uncertainty, the UNFCCC established broad, overarching principles and
institutional arrangements for the climate change regime. Accordingly, the parties
101
to the climate change regime are bound by the ultimate objective of achieving
the:
stabilisation of greenhouse gas concentrations in the atmosphere at a level that
would prevent dangerous anthropogenic interference with the climate system. Such
a level should be achieved within a time-frame sufficient to allow ecosystems to
adapt naturally to climate change, to ensure that food production is not threatened
and to enable economic development to proceed in a sustainable manner (emphasis
added).10
Little definition is given for this broad and ambitious environmental objective.
Greenhouse gases are defined in the convention as those gaseous constituents of
the atmosphere, both natural and anthropogenic, that absorb and re-emit infrared
radiation11 whilst climate change is defined as:
a change of climate which is attributed directly or indirectly to human activity that
alters the composition of the global atmosphere and which is in addition to human
activity that alters the composition of the global atmosphere and which is in
addition to natural climate variability observed over comparable time periods.12
hydrosphere,
biosphere
and
geosphere and
their
interactions.13
10
102
countries. 14 The UNFCCC acknowledges that change in the Earths climate and
its adverse effects are a common concern of humankind and states that the
parties were determined to protect the climate system for present and future
generations. 15 It further recognises the need for developed countries to take
immediate action, in a flexible manner, based on relevant scientific, technical and
economic considerations whilst ensuring that responses are integrated so as to
avoid any adverse impacts on social and economic development. In terms of the
economic costs of the general mitigation obligation, the UNFCCC states that
polices and measures which address climate change should:
be cost-effective so as to ensure global benefits at the lowest possible cost. To
achieve this, such policies and measures should take into account different socioeconomic contexts, be comprehensive, cover all relevant sources, sinks and
reservoirs of greenhouse gases and adaptation, and comprise all economic sectors.16
Furthermore, the UNFCCC states that parties have a right to, and should,
promote sustainable development that economic development is essential for
adopting measures to address climate change and that parties should promote an
open international economic system that would lead to sustainable economic
growth and development. 17 The UNFCCC also commits the parties to the
development and transfer of technologies, practices and processes that reduce
greenhouse gas emissions.18 In addition, and in conformance with the notion of
common but differentiated responsibilities, developed country parties are
responsible for the provision of financial resources, environmentally sound
technology and adaptation assistance to participating developing countries. 19
Through the UNFCCC and, more significantly, the Kyoto Protocol the parties
have agreed to a fetter on their sovereign rights to emit greenhouse gases. As a
14
103
result, the climate regime imposes restrictions on the actions of nations within
their territorial jurisdictions by imposing limits on the amount of emissions
which can be created during a set time period. In furtherance of its objectives, the
UNFCCC requires parties to adopt precautionary measures to prevent or
minimise the causes of climate change and to mitigate its adverse effects. 20
These obligations specifically recognise the common but differentiated
responsibilities and capacities of the parties to the UNFCCC and greater
mitigation responsibilities are imposed on those developed countries parties. 21
The UNFCCC includes the agreed aim that all developed countries will take
measures to reduce their greenhouse gas emissions to 1990 levels by the year
2000.
22
enforcement action was taken. This was largely because of the agreement to
precise, quantitative mitigation obligations adopted in the Kyoto Protocol to the
UNFCCC in 1997.
20
104
Surprisingly, the Kyoto Protocol does not specify the manner in which the
emission reductions targets must be achieved by the parties. It acknowledges the
unique characteristics which are present in each nation State and permits the
parties to achieve their emission obligations in the manner which best fits their
national circumstances. Therefore, the Kyoto Protocol is silent on the method of
reduction beyond broad references to sustainable development and the
implementation of certain policies and measures according to the national
circumstances of each party. 27
25
Kyoto Protocol, n4, Annex B. Australia, for example, was allocated a target of 110 per cent of 1990
levels whilst the EU Bubble must achieve 92 per cent. The targets are therefore based primarily on
political bargaining rather than on a mathematical calculation of required emission reductions.
26
Kyoto Protocol, n4, Article 3(1). The Kyoto Protocol contemplates additional commitment periods
beyond 2012. However, those remain under negotiation by the parties.
27
Kyoto Protocol, n4 Article 2(1)(a).
105
Parties to the Kyoto Protocol were concerned about the potential negative
impacts, on their national economies and international competitiveness, from the
imposition of emission reduction duties.
Accordingly, the Kyoto Protocol has adopted a unique and innovative regulatory
approach in its international creation of the flexibility mechanisms and use of
tradeable emission instruments. At the beginning of the first commitment period,
parties are allocated a number of tradeable emission instruments, known as
Assigned Amount Units (AAUs), which are able to be transferred between
eligible parties. Parties may also create additional credits through the
implementation of emission reduction projects in developing countries (CDM) or
they can convert credits from implementing projects in other Annex-1 countries
(JI). These mechanisms together allow parties to elect as to the proportion of
domestic mitigation which they will implement compared to international
abatement activities.29
28
Tom Tietenberg, 'Economic Instruments for Environmental Regulation' (1990) 6(1) Oxford Review
of Economic Policy 17; Peter H Sand, 'International Economic Instruments for Sustainable
Development: Sticks, Carrots and Games' in Daniel Bodansky and David Freestone (eds),
Transnational Environmental Law: Lessons in Global Change, International Environmental Law and
Policy Series (1999) London, Kluwer Law International, vol 53, 331.
29
This choice is somewhat limited to the extent that domestic actions must constitute a significant
element of the efforts made by a party to meet its emission reduction obligations but this concept is,
as yet, undefined and untested; UNFCCC, Decision 15/CP 7 'The Marrakesh Accords'
(FCCC/CP/2001/13/Add.2).
106
30
Oran R Young and Marc A Levy, 'The Effectiveness of International Environmental Regimes' in
Oran R Young (ed), The Effectiveness of International Environmental Regimes: Causal Connections
and Behavioral Mechanisms (1999) Cambridge, The MIT Press, 1 at 4-6; see also Alina Averchenko,
Factors of Effectiveness of the International Climate Change Regime (PhD Thesis, University of Bath,
2004) at 73.
107
An effective legal regime to manage climate change should integrate all of the
legal
components
necessary
to
enable
the
effective
implementation,
and
verification
processes
and
appropriate
enforcement
32
31
See, for example, Sonja Peterson, 'Monitoring, Accounting and Enforcement in Emissions Trading
Regimes' (Paper presented at the OECD Global Forum on Sustainable Development: Emissions
Trading 17-18 March 2003 Paris, Greenhouse Gas Emissions Trading and Project Based Mechanisms,
Paris, 2003);Gregory Rose, 'A Compliance System for the Kyoto Protocol' (2001) 7(2) New South
Wales Law Journal 37.
32
See Barbara Koremenos, Charles Lipson and Duncan Snidal, 'The Rational Design of International
Institutions' (2001) 55(4) International Organization 761.
33
For a discussion of structural coherence generally and legal coherence more specifically see Joseph
Raz, 'The Relevance of Coherence' (1992) 72 Buffalo University Law Review 273 and Jack Balkin,
'Understanding Legal Understanding: The Legal Subject and the Problem of Legal Coherence' (1993)
103 Yale Law Journal 105 respectively.
34
In the domestic regulatory context see Anthony Ogus, 'Comparing Regulatory Systems:
Institutions, Process and Legal Forms in Industrialised Countries' (Centre on Regulation and
Competition Working Paper Series No. 35, 2002) at 1.
35
Owing to word restrictions, the theories of international regulation and global governance are not
described in this chapter. This theoretical approach is discussed in detail in Donald Feaver and Nicola
Durrant, Architectures of International Regulation(2007) Working Paper, Queensland University of
Technology and Donald Feaver and Nicola Durrant, A Regulatory Analysis of International Climate
Change Regulation (forthcoming 2008) Special Issue on Global Warming, Law & Policy Journal.
108
The two primary regulatory bodies to the climate change regime are the
Conference of the Parties to the UNFCCC (COP) and the Meeting of the Parties
to the Kyoto Protocol (MOP). The climate change regime is characterised by a
fragmented series of multiple, upward, delegations from the parties to a number
of different regulatory bodies.
COP
MOP
Compliance Committee.36
The sources of power for the bodies to the climate change regime are derived
from the provisions of the UNFCCC and the Kyoto Protocol to the UNFCCC.
The architecture of the climate change regime is depicted in Figure Three below.
Under this model, the primary transfer of power takes place through the pooling
of sovereign authority from the parties to the COP and MOP. Those bodies
maintain ultimate decision-making functions over the climate change regime.
However, multiple delegations of regulatory functions also take place. Clear
regulatory powers are transferred to the Executive Board o f the CDM and Joint
Implementation Supervisory Committee to facilitate the use of the flexibility
mechanisms. Authority is also divested to the Compliance Committee to address
issues in implementation and non-compliance.
36
This functions through a Plenary, Bureau, Facilitative Branch and an Enforcement Branch.
109
The institutional bodies of the UNFCCC and Kyoto Protocol are serviced by the
UNFCCC Secretariat which is institutionally linked to the UN system but is not
fully integrated into the work programme or management structure of any UN
department.37 Limited administrative functions, but not discretions, are allocated
to the established UNFCCC Secretariat. The UNFCCC Secretariat is responsible
for, inter alia, the International Transaction Log (ITL) and the national registries
for international emissions trading. Under the UN headquarters agreement, the
Secretariat has legal capacity to contract, acquire and dispose of property and
institute legal proceedings in fulfilment of those duties.
38
The UNFCCC
37
UNFCCC, Decision 22/CP 5 ' Institutional Linkage of the Convention Secretariat to the United
Nations' (FCCC/CP/1999/6/Add 1).
38
Farhana Yamin and Joanna Depledge, The International Climate Change Regime: A Guide to Rules,
Institutions and Procedures (2004) Cambridge, Cambridge University Press at 501, 505.
39
Ibid.
110
ITL
CDM
Executive
Board
JI Supervisory
Committee
National
Registries
UNFCCC
Secretariat
Compliance
Committee
UNFCCC
Kyoto Protocol
(General Duties)
(Specific Targets)
Nation
COP
MOP
(Regulator)
(Regulator)
Nation
Nation
Nation
Domestic
Regulator
(optional)
Domestic Jurisidiction
Private Entities/Individuals
Figure 3: Feaver and Durrant, The Regulatory Architecture of the Climate Change
Regime (2008).40
40
This figure created by this author. Modified version published in Donald Feaver and Nicola Durrant,
A Regulatory Analysis of International Climate Change Regulation (forthcoming 2008) Special
Issue on Global Warming, Law & Policy Journal.
111
42
41
Heleen de Coninck, 'Designing Institutions for Climate Change: Why rational design involves
technology' (Paper presented at the Amsterdam Conference on Human Dimensions of Global
Environmental Change, Amsterdam, May 2007) at 7.
42
See, for example, Mancur Olson, The Logic of Collective Action: Political goods and the theory of
groups (1965) Cambridge, Harvard University Press.
43
UNFCCC, n2, Article 7(2).
112
Membership of the Kyoto Protocol does not include all of the members of the
UNFCCC. Accordingly, the Kyoto Protocol establishes the MOP but states that
the COP shall serve as the MOP and any non-parties to the COP will participate
as observers for the purposes of the Kyoto Protocol. 44
change regime has two core regulators, each with authority over their respective
agreements and each with the power to establish and enforce new rules against
the respective parties. In practical terms, the COP and MOP meet concurrently to
reach decisions in respect of the UNFCCC and Kyoto Protocol.
44
113
The jurisdiction of the COP and MOP relates to the performance of regulatory
functions regarding the relatively broad subject-matter of climate change. This
includes the functions under the Kyoto Protocol of:
Accordingly, the MOP appears to have been granted a broad discretionary power
in respect of the implementation of the climate change regime.
114
(m) exercise such other functions as are required for the achievement of the
objective of the Convention.
The mandate of the MOP is cast in similar terms including that the MOP shall
keep under regular review the implementation of the Kyoto Protocol and shall
make, within its mandate, any decisions necessary to promote its effective
implementation. 47 Accordingly, the MOP maintains a high level regulatory
function in respect of the implementation of the international components of the
climate change regime. However, many of the technical functions of the MOP
are delegated to the subsidiary regulatory bodies as illustrated in Figure Three.
Those bodies are responsible for the direct day-to-day supervision of the
flexibility mechanisms. As a result, these bodies have a high level of regulatory
involvement in the abatement projects and other activities of private entities and
private individuals.
47
Kyoto Protocol, n4 Article 13(4). The Kyoto Protocol contains an additional Article 8(6) The
MOP..shall take decisions on any matter required for the implementation of this Protocol.
48
UNFCCC, n2, Article 4(2)(a); Kyoto Protocol, n4, Article 3.
115
The subject matter of the regime, climate change, is itself wide ranging in scope
and extends beyond the broad range of environmental concerns to issues of
trade and development, human health, food security, energy security, access to
technologies and financial aid. Decisions regarding climate change mitigation
will also impact on a wide range of environmental sustainability issues.
Therefore, in principle, the COP and MOP hold a wide discretion to establish
policy directions, create new environmental rules and standards required for the
achievement of the objectives of the regime and make adjudicative decisions
affecting sovereign rights and interests. This rule-making discretion of the
climate change regime extends to the domestic sphere and to private individuals
and firms. Private individuals and firms may elect, following initial authorisation
from their State, to participate in the market mechanisms as project developers,
carbon traders and accredited experts. 49 Where this occurs, those participants
become subject to the jurisdiction of the regulatory bodies under this global
regime. Accordingly, the MOP and its subsidiary bodies may reach decisions
affecting private interests and can enforce the rules of the regime against those
private interests without any nation State involvement in that process.
Decisions of the COP and MOP are considered to be legally binding and in
certain instances could amount to an agreement modifying or supplementing the
text of the UNFCCC and Kyoto Protocol.50 However, it is questionable whether
decisions which are inconsistent with the text of the treaty are able to vary the
original agreement without adherence to the specified processes for amendment
contained within that treaty. Whether the COP and MOP possess a separate legal
personality is also a matter of some contention. Some commentators conclude
that the COP possesses a separate legal personality and is a self governing
49
For CDM, Kyoto Protocol, n4, Article 12(9). For JI, Kyoto Protocol, n4, Article 6(3). For
Emissions Trading, UNFCCC, Decision 11/CMP 1: Modalities, Rules and Guidelines for Emissions
Trading under Article 17 of the Kyoto Protocol, Annex: Modalities, Rules and Guidelines for
Emissions Trading under Article 17 of the Kyoto Protocol, (FCCC/KP/CMP/2005/8/Add 2) at [5].
50
Farhana Yamin and Joanna Depledge, n38, 404-405.
116
51
117
Unlike the bodies to the UNFCCC, these institutions have received a level of
delegated power to enable them to administer the Kyoto Protocol without
constant approval from the MOP. This direct upwards delegation enables these
bodies to create their own rule-making processes, to reach decisions regarding
the rights and liabilities of the parties and third party individuals and to police the
level of compliance with the rules of the regime. These bodies act under the
direction of the MOP but have been allocated decision-making power and are
able to issue binding decisions on the parties. Accordingly, they have been
delegated procedural functions with respect to the monitoring and supervision of
the CDM/JI projects as well as substantive decision making, rule-making and
approval or adjudicative functions in respect of those projects.
55
118
56
119
59
requirements for the approval of new methodologies for CDM project baselines,
registration and approval of project designs, approval and implementation of
monitoring plans, verification and issue of credits and the accreditation of
operational entities. 60
The Executive Board appears to have been granted a high level of autonomy and
is able to create and apply new modalities and procedures to proposed emission
reduction projects. This is designed to allow the practical, commercial
application of the flexibility mechanisms without the impracticability and delay
of reverting to the MOP for approval.
determines the appropriate policy direction, creates the necessary rules, and
reaches decisions regarding compliance with those rules prior to recommending
the adoption of these rules to the subsequent meeting of the MOP.
However, the ability of the Executive Board to elaborate on the rules of the
climate change regime has resulted in a complex system heavy in rules and
requirements. As noted by one commentator:
the designers of the Kyoto Protocol..and..the..subsequent decisions..have built into
the CDMs project cycle an impressive, but so far mostly untested, set of
institutions and safeguards designed to ensure clear and consistent standards for
calculating the environmental additionality of CDM projects, processes for
encouraging technical assessments, transparency and public scrutiny of CDM
operations, and mechanisms for rejecting or discounting CERs when problems
emerge.61
59
120
The Executive Board is comprised of ten members from the parties to the Kyoto
Protocol including one from each of the five UN regional groups, two from
Annex-1 parties, two members from non-Annex-1 parties and one representative
from the small island developing States.62 These members act on the Executive
Board in their personal capacity and must take an Oath of Service which states
that they will provide their function impartially and conscientiously. 63 The Oath
further requires that the members have no financial interest in any aspect of the
CDM and that confidential information transferred to the Executive Board is
maintained.64
In terms of the principles of due process, decisions made by the Executive Board
are deemed final unless a request for review is made regarding issues associated
62
121
with the validation requirements. That request for review is limited and may only
be made by the project participants or the members of the Executive Board.66
Although interested stakeholders are able to be present at the review hearing,
they can only provide information if requested by the Executive Board.
Moreover, the climate change regime does not articulate an avenue of recourse
from a decision of the Executive Board to the MOP (although in practical terms
this is likely to occur where a nation State has been aggrieved). The Executive
Board has been criticised for the tardiness and unpredictability of its decisions
and some commentators have called for the appointment of a professional
regulatory body with more appropriate resourcing and technical expertise to
manage the increasing complexities of the CDM. 67
mechanism itself has also been criticised for the emerging geographical bias by
which project developers appear to be favouring Asia, and China in particular, as
host countries for their projects to the exclusion of other more vulnerable
developing countries. 68 The technological and economic outcomes of the CDM
process have also been described as follows:
the CDM in its current form is not able to generate or absorb the financial and
technological flows needed under a global deal.. Moreover, the.nature of
the CDM, and the measurement of emission reductions against an unobservable, projectspecific, baseline impose substantial transaction costs in terms of validation, verification
and independent scrutiny.69
66
UNFCCC, Decision 4/CMP 1: Guidance to the Executive Board of the Clean Development
Mechanism. Annex 2: Procedures for Review as Referred to in Paragraph 41 of the Clean
Development Mechanism Modalities and Procedures (FCCC/KP/CMP/2005/8/Add 1), section A at
[2].
67
Streck, n9, 97,100.
68
Armin Sandhoevel and Ingo Ramming, 'Joint Implementation - A Catalyst for Change' in David
Lunsford (ed), Greenhouse Gas Market 2007 Building Upon A Solid Foundation: The Emergence of a
Global Emissions Trading System (2007) Geneva, International Emissions Trading Association, 92 at
92.
69
Nicholas Stern, 'Key Elements of a Global Deal on Climate Change' (London School of Economics
and Political Science, 2008) at 15.
122
70
123
and is responsible for, inter alia, the elaboration of any rules of procedure for
consideration by the MOP. 76
The most likely locations for JI projects are the Ukraine and the Russian
Federation given their status as economies in transition and the resulting excess
supply of AAUs. JI approval procedures have been adopted by a number of
countries including both the Ukraine and the Russian Federation.81 The Ukraine
introduced its approval processes in 2006 and began to approve JI projects in mid
2007. 82
76
Ibid, section C.
Dane Ratliff, 'Joint Implementation: Tracking Recent Developments' (2007) 2(Special Issue: The
Kyoto Protocol and Carbon Finance) Environmental Liability 56 at 58.
78
Ibid.
79
Jane Ebinger and Jari Vayrynen, 'The Greening of AAUs and the Interface with Joint
Implementation' (2007) 2(Special Issue: The Kyoto Protocol and Carbon Finance) Environmental
Liability 73 at 79.
80
These could also potentially result in more sustainable outcomes. See Ratliff, n77, 63.
81
UNFCCC, JI: Parties Involved in JI Projects http://ji.unfccc.int/JI_Parties/index.html at 11 June
2008. The Ukraine is expected to become eligible to use the flexibility mechanisms at the end of April
2008 while the Russian Federation is expected to become eligible in June 2008 see
http://unfccc.int/files/kyoto_protocol/compliance/enforcement_branch/application/pdf/eligibility_list_
080422.pdf at 11 June 2008.
82
Anna Korppoo, 'Briefing Paper: JI Approval System in Ukraine: Outline and Experiences' (Climate
Strategies, 2007) at 1; Tatiana Boldyreva and Dmitriy Timofeev, 'JI Approval Procedures in Russia
and Ukraine' in David Lunsford (ed), Greenhouse Gas Market 2007 Building Upon A Solid
77
124
ERUs from those projects which fulfil the investment requirements of the
company without ERUs must be sold at a price not less than 50 per cent
of the price in the EU emissions trading scheme; and
the revenue from ERUs must cover at least 10 per cent of the project
investment.86
Initial difficulties with the Ukrainian JI include delays in the approval system and
the ongoing absence of legislation to clarify the legal processes for transferring
ERUs, on how AAUs can be converted into ERUs or on how ERUs should be
deal with in taxation.87 Obviously, such legal mechanisms are critical to create
Foundation: The Emergence of a Global Emissions Trading System (2007) Geneva, International
Emissions Trading Association, 102. Cabinet of Ministers of Ukraine. 2006, Resolution dated
February 22, 2006 #206 On Approval of the Procedure for Consideration, Approval and
Implementation of Projects Aimed at Anthropogenic Emissions Reduction or Greenhouse Gas
Absorption Increase Pursuant to Kyoto Protocol to the United Nation Framework Convention on
Climate Change.
83
Korppoo, n82, 3-4.
84
Ibid, 5.
85
Ibid,3.
86
Ibid, 5.
87
Ibid,8.
125
legal certainty regarding the rights of ownership and the ability to transfer
ownership in these tradeable emission instruments.
Other economies in transition that form part of the EU may have less capacity to
host JI projects as a result of the lower baseline resulting from emission
restrictions under the acquis communautaire and EU emissions trading
directives. 92 Furthermore, an additional compliance stage will apply to the
implementation of a JI project, in an EU nation, as the nation is also responsible
for ensuring that the project complies with all EU law. 93
88
Tatiana Boldyreva and Dmitriy Timofeev, 'JI Approval Procedures in Russia and Ukraine' in David
Lunsford (ed), Greenhouse Gas Market 2007 Building Upon A Solid Foundation: The Emergence of a
Global Emissions Trading System (2007) Geneva, International Emissions Trading Association, 102
at 105. There are difficulties in accessing information on the Russian approval procedures. For
example, no English translation of the national procedures document is included on the UNFCCC
website. No additional information is included on the website for the Russian Ministry for Economic
Development and Trade.
89
Denton Wilde Sapte, Russian Legal Update: Kyoto: Russia ready to start realisation of Joint
Implementation Projects (JI Projects) (March 2008)
http://www.dentonwildesapte.com/assets/2/20306.pdf at 11 June 2008.
90
Ibid.
91
Simon Shuster, 'Russia Says Will be Strict Approving Kyoto Projects', Planet Ark 14 March 2008.
92
Ebinger and Vayrynen, n79, 63.
93
Leonardo Massai, 'Joint Implementation In an Enlarged EU: Recent Developments and Outstanding
Legal Issues' (2007) 2(Special Issue: The Kyoto Protocol and Carbon Finance) Environmental
Liability 65 at 69-70.
126
94
assessment in accordance with the procedures required by the host party.95 Prior
to validation, all of the parties must provide written approval of voluntary
participation in the project and confirmation must be provided from the host
party that the project activity assists the nation in achieving sustainable
development.96 These project participants are also required to comply with all
applicable national laws. In the case of each nation proposing to host JI projects,
the Annex-1 party must establish a Designated Focal Point (DFP) for approving
projects pursuant to Article 6 of the Kyoto Protocol. 97
Consequently, the DNA or DFP for the host country of the CDM or JI project
plays a significant decision making role in the selection of projects for approval,
specification of the level of environmental assessment required and in
determining whether the principles of sustainable development have been met.
This allows the host country to deal with projects within its national territory as it
chooses and according to its own set of priorities. This is particularly significant
in developing countries under the CDM.
provisions were drafted with the perception that these host nations would have
94
127
98
Ernestine Meijer and Jacob Werksman, 'CDM - Concepts, Requirements and Project Cycle' (2007)
2(Special Issue: The Kyoto Protocol and Carbon Finance) Environmental Liability 81 at 84.
99
Institute for Global Environmental Strategies and Japan Ministry of the Environment, CDM and JI
in Charts (4 ed, 2005) Japan, Ministry of the Environment Attachment 1: Contents of the Project
Design Documents (v3) at section F (regarding the processes required to be undertaken according to
host country requirements).
100
This deficiency raises issues of adequacy of host country consultation and local community
involvement in the project development process.
101
Only project activities involving renewable energy and energy efficiency measures which promote
sustainable development are eligible for accreditation under the CDM Gold Standard. The Gold
Standard, 'The Gold Standard: Manual for CDM Project Developers' (2006 (version 3)) at 9, 11;
www.cdmgoldstandard.org at 11 June 2008.
128
significantly affect the choice of location and type of emission reduction projects
which are planned and implemented under the CDM.
The UNFCCC created an expectation that all parties to the Convention would
have enacted appropriate environmental legislation at the domestic level. 102
However, this deference to national sovereignty diminishes the ability of the
parties and the UN to ensure that the climate change regime leads to the
enhancement of environmental sustainability whilst achieving envisaged
emission reductions. Indeed, the UNFCCC states that parties should promote
sustainable development. 103
These
102
129
105
106
130
discretion of the approval bodies to the CDM and JI mechanisms must span
public and private interfaces as well as international and domestic spheres. As
noted by one commentator, there are very few other examples of mechanisms
where private entities come into such intimate contact with the sphere of
international law. 110 In particular, the CDM is presented as an example of the
increase of global administrative law, which is characterised by a vast increase in
the reach and form of transgovernmental regulation. 111
The climate change regime is quite unique in its use of direct State commitments,
combined with the flexibility mechanisms, which enable private entities to elect
to assist in the implementation of emission reduction activities. In addition, by
creating tradeable rights in emissions, the regime provides financial incentives
for greater public and private engagement in achieving the emission reduction
objectives of the climate change regime. The regime is by no means perfect and
there are several key areas in which improvements can be made. Moreover,
given the multi-layers of regulation of these projects, the use of the CDM and JI
are not without their risks.
through a time consuming and potentially costly process prior to the actual
implementation of the project and ultimate issue of credits.112 There is also little
protection offered to private entities against the making of adverse decisions with
serious financial repercussions.
110
131
113
See Thorstern Benner, Wolfgang Reinicke and Jan Martin Witte, 'Multiple Networks in Global
Governance: Towards a Pluralistic System of Accountability' (2004) 39(2) Government and
Opposition 191 at 193 and 197. Those authors promote the emergence of new forms of governance
along the public-private frontier which harness the transfer and use of knowledge and resources.
132
responsible for compliance with its obligations and with the pre-requisites for
eligibility to trade.116
114
The requirements specify that each Party included in Annex I shall maintain, in its national
registry, a commitment period reserve which should not drop below 90 per cent of the Partys
assigned amount calculated pursuant to Article 3, paragraphs 7 and 8, of the Kyoto Protocol, or 100
per cent of five times its most recently reviewed inventory, whichever is lowest.The commitment
period reserve shall consist of holdings of ERUs, CERs, AAUs and/or RMUs for the relevant
commitment period which have not been cancelled in accordance with decision 13/CMP.1. This
restriction does not apply to the transfer of ERUs for JI projects under Article 6 of the Kyoto Protocol.
UNFCCC Decision 11/CMP 1: Modalities, Rules and Guidelines for Emissions Trading under
Article 17 of the Kyoto Protocol, Annex: Modalities, Rules and Guidelines for Emissions Trading
under Article 17 of the Kyoto Protocol, (FCCC/KP/CMP/2005/8/Add 2) at [6]-[11].
115
UNFCCC, Decision 3/CMP.1, n57, [2].
116
UNFCCC, Decision 11/CMP.1, n114, [5].
133
to proceed. 117 The ITL is an automated system which checks for discrepancies
in the transaction including, for example, checking whether the selling party is
eligible to trade on the market. In the event of an identified discrepancy by this
automated system, such as the ineligibility of a State to trade, the transaction will
be cancelled.
118
cancellation, will prima facie lie where they fall and affected entities will have to
rely on contractual provisions and national administrative law principles to
address any resulting inequities. 119
A great deal of faith appears to have been placed in the infallibility of this
software to detect discrepancies and to prevent ineligible transactions from
proceeding. 120 Once the confirmation message has been sent from the ITL to the
national registry, all processes will be considered final. 121 No directions have
been issued as to the financial consequences from server faults or other failures
of this system and these matters will have to be addressed on a case by case basis.
117
UNFCCC, Decision 13/CMP.1: Modalities for the Accounting of Assigned Amounts under
Article 7, paragraph 4, of the Kyoto Protocol: Annex II: Registry Requirements
(FCCC/KP/CMP/2005/8/Add.2), section D [38].
118
Ibid, Section D [43].
119
The lack of definition regarding liability places great emphasis on the drafting of appropriate
warranties and indemnities in the contractual agreements to avoid reliance on local laws to resolve
liability issues.
120
Such servers will be subject to the same risks and weaknesses as other online servers including, for
example, risks of fraud and unauthorised access.
121
Anthony Hobley and Peter Hawkes, 'GHG Emissions Trading Registries' in David Freestone and
Charlotte Streck (eds), Legal Aspects of Implementing the Kyoto Protocol Mechanisms: Making
Kyoto Work (2005) Oxford, Oxford University Press, 127 at 140.
134
The weakness of this regulatory approach lies in the absence of clear and
consistent regulation, across domestic jurisdictions, in imposing individual duties
to reduce emissions and individual rights to trade in compatible emission
instruments. Ironically, it is this flexibility in domestic implementation that will
ultimately undermine the operation of the climate change regime. Consequently,
the effectiveness of the international climate market, and its ultimate evolution
into a multi-national carbon market, will succeed or fail on the basis of those
domestic legal systems.122
122
Legal issues in the operation of the multi-national global carbon market are assessed in Chapter
Seven.
123
Tom Tietenberg et al, 'International Rules for Greenhouse Gas Emissions Trading: Defining the
principles, modalities, rules and guidelines for verification, reporting and accountability'
(UNCTAD/GDS/GFSB/Misc.6, United Nations Conference on Trade and Development, 1999) at 84.
135
and must be performed by them in good faith. 124 International treaties present
unique problems for regulators in ensuring compliance as they must balance the
need to respect sovereignty with the need to promote compliance.125 The now
infamous quote of Professor Henkin describes the compliance behaviours of
nation States as follows almost all nations observe almost all principles of
international law and almost all of their obligations almost all of the time.126
However, this statement has been criticised by one commentator who submits
that estimations of compliance are systematically overstated and that Henkins
comment is surely premature and probably exaggerated. 127
124
Vienna Convention on the Law of Treaties, U.K.T.S. 58 (1980); (1969) 63 A.J.I.L. 875 (opened for
signature 22 May 1969)(entered into force 1980). Accession by Australia 13 Jun 1974. Article 26.
125
Tietenberg et al, n123, 91.
126
Louis Henkin, How Nations Behave: Law and Foreign Policy (2 ed, 1979) New York, Praeger at
47.
127
Peter M. Haas, 'Choosing to Comply: Theorizing from International Relations and Comparative
Politics' in Dinah Shelton (ed), Commitment and Compliance: The Role of Non-Binding Norms in the
International Legal System (2000) New York, Oxford University Press, 43 at 44.
128
Ronald B. Mitchell, 'Compliance Theory: an Overview' in James Cameron, Jacob Werksman and
Peter Roderick (eds), Improving Compliance with International Environmental Law (1996) London,
Earthscan Publications, 3 at 12-13.
129
Peter H Sand, 'Institution-building to Assist Compliance with International Environmental Law:
Perspectives 56(3) Heidelberg Journal of International Law 774 (1996)' in Durwood Zaelke, Donald
Kaniaru and Eva Kruzikova (eds), Making Law Work: Environmental Compliance and Sustainable
Development: Volume 1 (2005) London, Cameron May, 209 at 333.
130
Ibid.
136
131
Parties were able to elect, at the time of deposit of the instrument of ratification, to recognise the
compulsory jurisdiction of the ICJ under Article 14.2 of the UNFCCC, n2.
132
UNFCCC, n2, Article 14.6.
133
Agreed at Montreal, 16 September 1987, 26 International Law Materials 1550 (1987) (entered into
force 1 January 1989). The features of that international regime are discussed in Chapter Two.
134
UNFCCC, Decision 27/CMP. 1: Procedures and Mechanisms Relating to Compliance under the
Kyoto Protocol, Annex: Procedures and Mechanisms Relating to Compliance under the Kyoto
Protocol, (FCCC/KP/CMP/2005/8/Add 3) section 2 at [2].
137
Parties are required to establish national systems for estimating their greenhouse
gas emissions and removals by sinks and must submit regular National
Communications outlining those estimates.135 The submission of these reports is
a pre-requisite to engaging in trade in the international climate market under the
Kyoto Protocol.
implementation of the emission reduction obligations, and other duties, under the
climate change regime. The effectiveness of the reporting obligations, as part of
the monitoring and enforcement of the regime, is dependent on the quality and
timeliness of the submission of national communications by the parties. The
plenary to the Compliance Committee has noted with concern that a significant
number of national communications have not been submitted in a timely manner
with some being more than twenty months overdue. 136 The powers of the
Compliance Committee in relation to such tardiness are unclear.137 The review of
national communications by expert teams is also crucial to the monitoring
process. 138 However, the Compliance Committee has warned the parties that
reduced resourcing and lack of proper expertise and training of experts, will all
undermine the effective functioning of that monitoring process.139
135
136
138
interpretation and application of treaty principles. 141 The MOP recently noted
that there has been a decrease in the total reported aggregate greenhouse gas
emissions of Annex-1 parties to the Kyoto Protocol but noted with concern that
this decrease had mainly resulted from decreases in emissions by parties with
economies in transition while emissions from other Annex-1 parties have
continued to increase above their base year or target. 142 In the event that the
emissions of the parties are not sufficiently reduced by 2012, then these parties
will fall into non-compliance with the regime. 143 The parties have agreed to a
strict liability penalty to be applied by the Enforcement Branch in the event of
any identified non-compliance of the parties with their emission reduction
duties.144 The automatic penalty comprises of the following components:
deduction from the partys assigned amount for the second commitment
period of a number of tonnes equal to 1.3 times the amount in tonnes of
excess emissions;
141
Ibid, section 4. Jacob Werksman, 'Designing a Compliance System for the UN Framework
Convention on Climate Change' in James Cameron, Jacob Werksman and Peter Roderick (eds),
Improving Compliance with International Environmental Law (1996) London, Earthscan Publications,
85 at 93-94.
142
Based on reported emissions for 2003/2004 compared to 1990 levels (or the base year as adjusted
for the economies in transition). UNFCCC, 'Decision 7/CMP. 3: Demonstration of progress in
achieving commitments under the Kyoto Protocol by Parties included in Annex I to the Convention'
(FCCC/KP/CMP/2007/9/Add.1).
143
Parties may also acquire credits from the market to submit in compliance provided that the use of
such mechanisms is supplementary to domestic reductions in emissions. At the end of the first
commitment period, Annex I parties are granted 100 days following the completion of the expert
review of their final annual emissions inventory to make-up any shortfall in compliance through the
purchase of additional emission instruments.
144
For other instances of non-compliance, the consequences of non-compliance applied by the
Enforcement Branch must be aimed at the restoration of compliance to ensure environmental
integrity, and shall provide for an incentive to comply. UNFCCC, Decision 27/CMP. 1, n134,
section 5, [6].
145
UNFCCC, Decision 27/CMP.1, n134, section 15,[5]. Accordingly, the deterrence effect of these
provisions is based on the assumption that the non-compliant nation will choose to continue to be a
party to the Kyoto Protocol for the second commitment period.
139
Accordingly, the
non-compliance
with
an
international
environmental
agreement.
See Edith Brown Weiss, 'Conclusions: Understanding Compliance with Soft Law' in Dinah
Shelton (ed), Commitment and Compliance: The Role of Non-Binding Norms in the International
Legal System (2000) New York, Oxford University Press, 535 at 544 where the author emphasises the
importance of graduated sanctions.
140
amendment from at least three quarters of the parties to the Protocol. 147 Instead,
they were simply adopted by a decision of the parties. 148 Consequently, there are
concerns that these provisions are not legally binding on the parties and could
become a significant issue of contention as the Enforcement Branch seeks to
enforce these provisions. 149 One commentator also asserts that the imposition of
this compliance mechanism will, in fact, have a greater adverse welfare affect on
compliant countries that it will on the non-compliant party due to the impact on
the international price of greenhouse gas emission allowances. 150 Finally, the
regime fails to impose any deterrent on parties discontinuing their membership to
the regime. Accordingly, a non-compliant party may simply elect to withdraw
from the Kyoto Protocol or UNFCCC or both, after providing one years notice,
without incurring any penalty. 151
interference with the climate system is largely indeterminate and the subject of
ongoing political and scientific debate. The obligations of the Kyoto Protocol are
worded in slightly stricter terms, with agreed repercussions for non-compliance,
and appear to have greater normative value. However, the small quantum of
specified emission reductions in the treaty actually acts to undermine any
argument that, under the UNFCCC, States must significantly reduce their
147
141
152
154
Vienna Convention on the Law of Treaties, n124, Article 31.1. Recourse may be had to the
supplementary means of interpretation including the preparatory work of the treaty when the meaning
is ambiguous or obscure or leads to a result that is manifestly absurd or unreasonable, Article 32.
153
Ibid, Article 60(2). A material breach of a treaty includes a repudiation of the treaty not sanctioned
by the present Convention or the violation of a provision essential to the accomplishment of the object
or purpose of the treaty. Article 60(3).
154
Barcelona Traction Case, Barcelona Traction and Light and Power Co, ICJ Reports (1970) 3 at 32.
Jonathan Charney, 'Third State Remedies for Environmental Damage to the World's Common Spaces'
in Francesco Francioni and Tullio Scovazzi (eds), International Responsibility for Environmental
Harm (1991) London, Graham & Trotman, 149 at 152.
142
sufficiently tangible injury to establish standing and assert a claim before the ICJ
and to seek reparation for the harm done. 155
155
Jonathan Charney, 'Third State Remedies for Environmental Damage to the World's Common
Spaces' in Francesco Francioni and Tullio Scovazzi (eds), International Responsibility for
Environmental Harm (1991) London, Graham & Trotman, 149 at 159.
156
UNFCCC, n2, Article 14, Kyoto Protocol, n4, Article 19.
157
UNFCCC Status of Ratification,
http://unfccc.int/files/essential_background/convention/status_of_ratification/application/pdf/unfccc_
conv_rat.pdf at 11 June 2008.
143
non-compliant under the Protocol. 158 As noted, where a party falls into noncompliance with the Kyoto Protocol, the Compliance Branch is responsible for
applying the consequences of non-compliance. State parties are also able to
approach the Enforcement Branch to consider the potential non-compliance of
other State parties. The potentially non-compliant party has a right to be
represented before a hearing of the Enforcement Branch and to have access to
and respond to information provided by others. 159
In 2008, Greece was found to be in non-compliance with its obligations under the
Kyoto Protocol. 163 The non-compliance related to the requirement to have in
place a national system for the estimation and reporting of emissions under
158
Jon Hovi, Olav Schram Stokke and Geir Ulfstein, 'Introduction and Main Findings' in Olav Schram
Stokke, Jon Hovi and Geir Ulfstein (eds), Implementing the Climate Regime: International
Compliance (2005) London, Earthscan, at 3.
159
UNFCCC, Decision 27/CMP. 1' n134, Section 9. UNFCCC, Decision 4/CMP.2: Compliance
Committee, Annex: Rules and Procedures of the Compliance Committee of the Kyoto Protocol
(FCCC/KP/CMP/2006/10/Add.1), section 10.
160
UNFCCC, Decision 27/CMP. 1' n134, section 5, [1]. In electing members of the Enforcement
Branch, the MOP must be satisfied that the members have legal experience. This is not expanded
upon.
161
UNFCCC, Decision 4/CMP.2, n159, Section 3. This obligation of impartiality applies to all
members of the Compliance Committee including the Facilitative and Enforcement Branches.
162
UNFCCC, Decision 27/CMP. 1 ', n134, Section 2, [9].
163
UNFCCC, 'Enforcement Branch of the Compliance Committee: Final Decision' (17 April 2008,
CC-2007-1-8/Greece/EB) at [18].
144
Following the hearing and written submissions by Greece, during which Greece
presented information on its transition to a new national system, the Enforcement
Branch of the Compliance Committee noted that the information submitted and
presented had not been sufficient for the Enforcement Branch to conclude that
the question of implementation had been fully resolved and indicated that
additional information was required. 167 It also noted that a further in-country
review of Greeces new national system, in conjunction with a review of an
annual inventory report generated by this national system, is required for the
enforcement branch to assess present compliance with the guidelines. 168 Despite
this absence of adequate information on which to make a determination,
following deliberations in private, the branch made an interim decision that
Greece was in non-compliance with its obligations.
Further submissions were made by Greece which asserted that: Greece had not
been treated consistently by the in-country expert review teams; other national
systems had identified deficiencies yet no questions of implementation had been
raised by those expert review teams; and the EU system (of which Greece is a
164
145
This initial application of the adjudicative authority of the climate change regime
demonstrates the tensions which will emerge regarding the roles of the regime in
facilitating the use of the market mechanisms to achieve emission reductions and
regulating to ensure the environmental integrity of these instruments and the
processes for monitoring and enforcement of the regime. In its current form, the
emphasis of the parties appears to be placed on the former role of the regime
rather than the latter which will undermine the deterrent effect of the enforcement
provisions.
enforcement body to counter such lethargy and to resolve instances of noncompliance with well-informed and considered directions to the parties. In its
169
146
current context, it is not clear that the Enforcement Branch can meet that
standard. Moreover, the Enforcement Branch is not the ultimate adjudicative
authority under the current climate change regime. Recourse is permitted from a
decision of the Enforcement Branch back to the MOP. If it is shown that due
process has not been followed by the hearing of the Enforcement Branch, the
MOP can act as an appeal body and override the decision of the Enforcement
Branch provided it obtains a three-quarters majority vote.173 Under the rules of
procedure, the MOP must not reach a decision on the merits of the matter but it
may agree to return the matter to the Enforcement Branch for a new
determination.174 Even a cursory review of these provisions reveals that these socalled appeal processes are fraught with legal difficulties, particularly given that
the MOP is not an independent, impartial arbitrator and there appears to be no
requirement to alter the constitution of the Enforcement Branch between the
initial and subsequent adjudicative determinations.
173
. An appeal must be lodged within 45 days of receipt of the decision of the Enforcement Branch
and will be considered at the following MOP (usually held annually). If an appeal is granted by the
MOP, the initial decision will stand pending that appeal. Consequently, a party could potentially be
held in non-compliance, and unable to trade, for a considerable period of time. UNFCCC, Decision
27/CMP. 1 n134, section 11
174
Ibid.
147
The UNFCCC and Kyoto Protocol do not address liability issues from climaterelated damage so, by default, this will be governed by existing international law
principles.
A State may be liable for transboundary damage where it has acted without due
care or diligence, in breach of a treaty or contrary to some prohibition on its
activities.178 This principle of State responsibility for transboundary harm was
first articulated in the now infamous Trail Smelter case which addressed a
175
148
Canadian smelting operation in Canada which caused injury to land and crops in
America. 179 The Tribunal held that:
no State has the right to use or permit the use of its territory in such a manner as to
cause injury by fumes in or to the territory of another or the properties of persons
therein, when the case is of serious consequence and the injury is established by
clear and convincing evidence.180
This principle has been the subject of little judicial exposition. In the Corfu
Channel case, Albania was found responsible for the harm caused from British
warships being struck by mines in Albanian waters. 181 The ICJ identified a due
diligence obligation of nations States and commented that it is every States
obligation not to allow knowingly its territory to be used for acts contrary to the
rights of other States. 182 These principles were affirmed in the Lac Lanoux case
which addressed the use of an international watercourse.
183
The tribunal
commented that a State must give sufficient consideration to the interests of all
affected States when undertaking activities.184
The principle of sic utere tuo ut alienum non laedas is another established
principle of international customary law 185 and is incorporated within treaties and
international declarations including Principle 21 of the 1972 Stockholm
Declaration which states that:
179
Trail Smelter Arbitration, United States v Canada (1931-1941) 3 RIAA 1905; (1939) 33 AJIL 182;
(1941) 35 AHIL 716.
180
Trail Smelter Arbitration, ibid, 1965.
181
Corfu Channel case, Great Britain v Albania, ICJ, Reports (1949) 3.
182
Corfu Channel case, ibid, 22.
183
Lac Lanoux case, Spain v France, UNRIAA, XII, 281; 24 ILR 101 (English version).
184
Lac Lanoux case, ibid, 315-317.
185
Riccardo Pisillo-Mazzeschi, 'Forms of International Responsibility for Environmental Harm' in
Francesco Francioni and Tullio Scovazzi (eds), International Responsbility for Environmental Harm,
International Environmental Law and Policy (1991) London, Graham & Trotman, 15 at 15; Jonathan
Charney, 'Third State Remedies for Environmental Damage to the World's Common Spaces' in
Francesco Francioni and Tullio Scovazzi (eds), International Responsibility for Environmental Harm
(1991) London, Graham & Trotman, 149 at 175; compare Karl Zemanek, 'State Responsibility and
Liability' in W. Lang, H. Neuhold and K. Zemanek (eds), Environmental Protection and International
Law (1991) London, Graham & Trotman, 187 at 187 who disputes the customary law status of this
principle.
149
States have, in accordance with the Charter of the United Nations and the principles
of international law, the sovereign right to exploit their own natural resources
pursuant to their own environmental policies and the responsibility to ensure that
activities within their jurisdiction or control do not cause damage to the
environment of other states or of areas beyond the limits of national jurisdiction.186
from a material injury can extend from the loss of resources of assessable
economic value to resources of intrinsic value such as biological diversity and
ecosystem function.190
186
United Nations Conference on the Human Environment, 'Declaration of the United Nations
Conference on the Human Environment (UN Doc A/CONF.48/14)' (16 June 1972), Principle 21.
187
Advisory Opinion on the Threat or Use of Nuclear Weapons, (1996) International Court of Justice
Reports 226 at 241 [29].
188
Alan Boyle, n178, 7.
189
Roda Verheyen, Climate Change Damage and International Law: Prevention Duties and State
Responsibility, Developments in International Law: Volume 54 (2005) Leiden, Martinus Nijhoff
Publishers at 315.
190
However, the injured State must be able to establish a causative link between the acts of the
responsible nation and the losses suffered. Alan Boyle, 'Reparation for Environmental Damage in
International Law: Some Preliminary Problems' in Michael Bowman and Alan Boyle (eds),
Environmental Damage in International and Comparative Law (2002) Oxford, Oxford University
Press, 17 at 20. See also Michael Bowman, 'Biodiversity, Intrinsic Value and the Definition and
Valuation of Environmental Harm' in Michael Bowman and Alan Boyle (eds), Environmental
Damage in International and Comparative Law: Problems of Definition and Valuation (2002) Oxford,
Oxford University Press, 41 and Louise de La Fayette, 'The Concept of Environmental Damage in
International Liability Regimes' in Michael Bowman and Alan Boyle (eds), Environmental Damage
in International and Comparative Law (2002) Oxford, Oxford University Press, 149 .
150
emissions accumulate in the atmosphere until the sink capacity of the Earths
atmosphere is exceeded and climatic changes occur.195 It will be necessary to
identify the point in time at which the cumulative emitting acts of the
defendant State amounted to a wrongful act. It is of some assistance that the
State is a long-term legal fiction and can be held accountable for wrongful
acts within its entire lifespan; 196
191
151
issues of jurisdiction and the need for all indispensable parties to submit to
the jurisdiction of the ICJ before the matter may be heard;200 and
197
152
The status of international law principles regarding liability for injurious acts that
conform to international law is uncertain. 208 It is possible that the parties to the
climate change regime would be able to rely on their compliance with their
emission reduction obligations under those agreements in defending any claims
against them. Consequently, a key issue will be whether the State was strictly in
compliance with its obligations under the UNFCCC to avoid dangerous
anthropogenic interference with the climate system.
In addition, the Draft Articles make provision for injury caused as a result of
force majeure or necessity. Force Majeure is addressed as follows:
1. The wrongfulness of an act of a State not in conformity with an international
obligation of that State is precluded if the act is due to force majeure, that is the
occurrence of an irresistible force or of an unforeseen event, beyond the control of the
State, making it materially impossible in the circumstances to perform the obligation.
205
153
It is possible that a State could argue that global warming and climate change are
themselves natural phenomenon, an irresistible force or unforseen event, that
acted to prevent them from avoiding dangerous anthropogenic climate change as
required under the UNFCCC. However, the obligation relates primarily to the
reduction of emissions which could be undertaken by the State regardless of this
natural phenomenon. The excuse of necessity would also provide little assistance
to States in excusing their failure to reduce emissions. With respect to acts of
necessity, the Draft Articles state that necessity may not be invoked by a State as
a ground for precluding the wrongfulness of an act not in conformity with an
international obligation unless the act:
is the only way for the State to safeguard an essential interest against a
grave and imminent peril; and
However, this defence may be relevant if the State takes steps to adapt or
mitigate the effects of climate change, to safeguard an essential interest against a
grave and imminent peril, and in doing so, causes injury to another State.
An injured State may demand that there be cessation of the wrongful acts of the
State. 211 This is an absolute obligation with no embedded flexibility for the
209
Draft Articles on the Responsibility of States for Internationally Wrongful Acts, n201, Article 23.
Ibid, Article 25.
211
Ibid, Article 30.
210
154
manner and timing of cessation. 212 This may cause difficulties where the
wrongful act is the continued emission of greenhouse gases as States are unlikely
to possess the technological means to immediately cease all uses of fossil fuels
and all emissions from within its national boundaries.
The injured State may be able to take countermeasures to induce another State to
comply with its international obligations.213 Where a causal link is established,
States are required to provide full reparation for the injury caused (whether
material or moral) by the internationally wrongful act including the provision of
restitution, compensation and satisfaction. 214 In the determination of reparation,
account shall be taken of the contribution to the injury by wilful or negligent
action or omission of the injured State.215 Accordingly, the injured States own
historic greenhouse gas emissions may play a significant role in the
determination.
existed before the wrongful act was committed.216 This principle of reparation
for environmental damage is articulated in the Chorzow Factory case although it
appears practically impossible for full reparation to be obtained in the case of
greenhouse gas emissions and climate change.217 Under the Draft Articles the
State is under an obligation to provide compensation to cover any financially
assessable damage including loss of profits insofar as it is established. 218 A
State may also be required to provide satisfaction in the form of an
acknowledgement of the breach, an expression of regret or formal apology. 219
212
155
220
United Nations General Assembly Resolution, Protection of Global Climate for Present and
Future Generations of Mankind 70th Plenary Meeting, 6 December 1988 (A/RES/43/53/).
156
Universal respect for the rights of humans are specifically acknowledged in the
United Nations Charter as follows:
with a view to the creation of conditions of stability and well-being which are
necessary for peaceful and friendly relations among nations based on respect for the
principle of equal rights and self-determination of peoples, the United Nations shall
promote:
a. higher standards of living, full employment, and conditions of economic and
social progress and development;
b. solutions of international economic, social, health, and related problems; and
international cultural and educational cooperation; and
c. universal respect for, and observance of, human rights and fundamental freedoms
for all without distinction as to race, sex, language, or religion.223
221
UNCED, 'United Nations Conference on Environment and Development: The Rio Declaration'
((1992) 31 ILM 874), Principle 1.
222
The Hague Declaration on the Environment, 11 March 1989, The Hague, 28 I.L.M 1308 (1989).
223
Charter of the United Nations (opened for signature 26 June 1945, San Francisco)(entry into force
24 October 1945), Chapter IX, Article 55.
224
Universal Declaration of Human Rights 1948, adopted and proclaimed by General Assembly
resolution 217 A (III) of 10 December 1948.
157
the right to own property and not be arbitrarily deprived of such property;
226
recognition that every human being has the inherent right to life;232
225
Ibid, Article 3.
Ibid, Article 17.
227
Ibid, Article 25.
228
Ibid, Article 22.
229
Ibid, Article 27.
230
International Covenant on Economic, Social and Cultural Rights 1966, 993 U.N.T.S. 3; U.K.T.S.
6 (1977), Cmnd. 6702; (1967) 6 I.L.M. 360.
231
International Covenant on Civil and Political Rights 1966, 999 U.N.T.S. 171; U.K.T.S. 6 (1977),
Cmnd. 6702; (1967) 61 A.J.I.L. 870.
232
Ibid, Article 6.
226
158
The overriding imperative of protecting the right to life contrasts sharply with the
substantial risk to human life posed by the adverse impacts of climate change.
The predicted impacts of climate change include droughts, storms, flooding, loss
of crops, lack of fresh water and food shortages as well as increased surface
temperatures, sea level rises and the spread of disease. 235 Developing nations are
the most vulnerable to the effects of adverse climate change. Climate change is
likely to have an adverse impact on their local infrastructure and traditional
industry, and may deplete available fresh water, fish, crops and other food
supplies, and impact upon the local social and cultural practices and
livelihoods.236 This could lead to widespread humanitarian disasters, famine and
massive population displacement resulting in an influx of climate refugees to
developed nations. Small island, low-lying coastal, and atoll States are also
particularly vulnerable to climate change and are likely to be adversely affected
by alterations in ecosystems, changes in precipitation, rising sea-levels and
233
International Covenant on Economic, Social and Cultural Rights , n230, Article 12.
International Covenant on Civil and Political Rights ,n231, Article 1; International Covenant on
Economic, Social and Cultural Rights, n230, Article 15.
235
IPCC, 'Policymakers' Summary of the Potential Impacts of Climate Change, Report from Working
Group II to the Intergovernmental Panel on Climate Change' (Australian Government Publishing
Service, 1990) at 2-4; IPCC, 'Climate Change 2001: Synthesis Report to the Third Assessment Report
of the Intergovernmental Panel on Climate Change' (Cambridge University Press, 2001) at 3,9.
236
IPCC, 'Climate Change 2001: Synthesis Report to the Third Assessment Report of the
Intergovernmental Panel on Climate Change' (Cambridge University Press, 2001) at 12.
234
159
The nation of Tuvalu in the South Pacific is one of the first islands to commence
evacuation owing to sea level rises. The collection of islands has an average
height of only 2 metres above sea level. 239 The land floods with each high tide
and its 11,000 residents will be evacuated by 2010.240 For the Tuvalu community,
climate change threatens a number of recognised human rights including the right
to a means of subsistence; the right to an adequate standard of living; and the
right to take part in cultural life. 241 The seriousness of the threat of climate
change to the human rights of small island developing States led to the release of
the Male Declaration on the Human Dimensions of Global Climate Change of
the Small Island Developing States. That declaration expressed the following
concern of the representatives as follows:
climate change has clear and immediate implications for the full enjoyment of
human rights including inter alia the right to life, the right to take part in cultural
life, the right to use and enjoy property, the right to an adequate standard of living,
the right to food, and the right to the highest attainable standard of physical and
mental health.242
237
Ibid, 12. Small Island Developing States, Male Declaration on the Human Dimensions of Global
Climate Change, Adopted at Male 13-14 November 2007.
238
World Conference on the Changing Atmosphere: Implications for Global Security, Toronto,
Canada 27-30 June 1988 (World Meteorological Organization, 1988).
239
Apisai Lelemia Prime Minister of Tuvalu, 'A Threat To Our Human Rights: Tuvalu's Perspective
On Climate Change', UN Chronicle Volume 2 2007.
240
Ibid.
241
Professor Jon Barnett, 'Climate Change and Human Rights', The Jakarta Post.com (Bali), 10
December 2007.
242
Small Island Developing States, Male Declaration on the Human Dimensions of Global Climate
Change, Adopted at Male 13-14 November 2007.
160
Small developing countries affected by the adverse impacts of climate change are
beginning to seek recourse against developed nations of the world. The most
likely defendants are the United States of America (US) and Australia who have
historically refused to acknowledge the threat of climate change and ratify the
Kyoto Protocol. An example of one such claim is that of the Inuit population
filed in the Inter-American Commission on Human Rights in 2005. The petition
sought relief for violations of their rights resulting from global warming caused
by US greenhouse gas emissions. They have asserted that the global warming
impacts on the Arctic have undermined their culture and economy and thus
breached their human rights.
The Inuits claim that global warming has resulted in less snow, thinner ice, less
ice, later freezes and earlier, more sudden thaws in the Arctic. 243 It has also
resulted in:
erosion, storms, floodingdamaged Inuit property, forcing relocation in some cases
and requiring many communities to develop relocation contingency plans. In
addition, these impacts have contributed to decreased water levels in rivers and
lakes, affecting natural sources of drinking water, and habitat for fish, plants, and
game on which Inuit depend.244
The Inuits claim that the culture, economy and identity of the Inuit as an
indigenous people depend upon the ice and snow.245 The Inuits have submitted
that this has breached their fundamental human rights including:
rights to the benefits of culture, to property, to the preservation of health, life,
physical integrity, security, and a means of subsistence, and to residence,
movement, and inviolability of the home.246
243
Sheila Watt-Cloutier with the support of the Inuit Circumpolar Conference on behalf of all Inuit of
the Arctic Regions of the United States and Canada, 'Petition to the Inter American Commission on
Human Rights Seeking Relief From Violations Resulting From Global Warming Caused By Acts and
Omissions of the United States' (2005) at 2.
244
Ibid, 3.
245
Ibid, 1.
246
Ibid, 5.
161
mechanisms to allocating liability for such harm. This is clearly contrary to the
spirit and objectives of international cooperation in responding to the risks posed
to humankind.
162
The climate change regime has been created with a wide discretionary scope for
future evolution and expansion beyond its original regulatory blueprint. The
UNFCCC and Kyoto Protocol provide the COP and MOP with broad powers to
exercise such other functions as are required for the achievement of the
objective of the [Convention/Protocol]. 247 This provides the COP and MOP with
significant scope in setting future policy directions and in evolving the scope of
the regime beyond its original agreement to adapt to changing environmental,
economic and social circumstances. In addition, the UNFCCC permits the COP
to amend its own rules of procedure, through consensus decision-making, which
provides a wide flexibility in responding to climate change under the regime. 248
Since its initial creation, the climate change regime has also continued to evolve
through the further decisions of both the parties to the UNFCCC and the parties
to the Kyoto Protocol (COP/MOP). In the decade since the Kyoto Protocol was
concluded, the parties have continued to make additions to the existing
institutional and regulatory structures as new implementation issues and policy
objectives have been identified. This ad hoc approach to the evolution of the
climate change regime has, at times, aggravated an already complex and
convoluted approach to international regulation. Although not ideal from the
perspective of optimal regulatory models, these decisions of the COP/MOP have
enabled the parties to seek continual improvement in the regime and to attempt to
resolve issues in the approval and implementation of the flexibility
mechanisms.249
247
UNFCCC, n2, Article 7(2)(m) and Kyoto Protocol, n4, Article 13(4)(j).
UNFCCC, n2, Article 7(2)(k).
249
However, the constant expansion of decisions, obligations and rules by the multiple regulators may
lead to a lack of transparency and clarity. It now appears necessary for the regime to consolidate
these unwieldy rules into a single, clear and unambiguous format.
248
163
The parties to the climate change regime have also agreed to commence
dialogues on longer term climate change commitments, post-2012, and these
discussions will affect the future features of the climate change regime. As
required under the Kyoto Protocol, the parties have initiated discussions with
respect to emission reduction commitments under the Kyoto Protocol for future
commitment periods.250 In addition, parties to the UNFCCC agreed to engage in
an open and non-binding dialogue to analyse strategic options for long-term
cooperative action to address climate change. 251
250
164
255
165
In 2007, for the first time, the UN Security Council considered the relationship
between energy, security and climate change as part of its responsibility for the
maintenance of international peace and security. 257
An EU report on the
Further conflict is also likely to arise over energy resources in the Polar regions
which will become exploitable as a consequence of global warming.260
256
UN Secretary General Ban Ki-moon, BBC News Online, UN chief warns on climate change
(2007) http://news.bbc.co.uk/2/hi/in_depth/6410305.stm at 11 June 2008.
257
United Nations Charter, n223, Article 24(1). United Nations Security Council, Security Council
5663rd Meeting: Security Council Holds First-Ever Debate on Impact of Climate Change on Peace,
Security, Hearing Over 50 Speakers, Some Delegations Raise Doubts Regarding Councils Role on
Issue, While Others, Particularly Small Island States, Welcome Councils Consideration (17 April
2007, SC/9000) http://www.un.org/News/Press/docs/2007/sc9000.doc.htm at 11 June 2008.
258
European Council, 'Climate Change and International Security: Paper from the High
Representative and the European Commission to the European Council' (Brussels 3 March 2008,
7249/08) at 3.
259
Ibid, 4.
260
Ibid.
166
In this context, and in the absence of a strong regulatory response under the
climate change regime, it is not far-fetched to envisage that the UN Security
Council may well govern the threat to peace and security posed by the impacts
of climate change and the associated threats to human health, property, food,
water and energy supply. Should the UN Security Council choose to intervene it
has very strong powers at its disposal to control emissions and human responses
to the impacts of climate change including the use of armed forces with powers
of shoot to kill for non-compliance with the directions of the Security Council.261
The architecture of the climate change regime has been heralded as being
innovative, ground-breaking and the most sophisticated example of an
international environmental regime to-date. 262
fragmented delegations from the sovereign parties, the climate change regime has
created a myriad of bodies, committees and other institutions responsible for the
implementation and operation of the regime. However, such innovation brings
with it significant challenges in implementation and raises a number of questions
regarding the effectiveness of such a regulatory model.
261
262
167
The long negotiation period, between the agreement of the text of the Kyoto
Protocol and the beginning of the first commitment period, has resulted in the adhoc addition of new regulators and rules to the regime without due regard for the
impact of those additions on the effectiveness of the overall institutional structure.
The result is a model of international regulation with multiple, fragmented,
limited delegations to the regulatory bodies.
168
These
169
Ultimately, the UNFCCC and Kyoto Protocol are together aimed at avoiding the
adverse effects of climate change through the reduction of greenhouse gas
emissions. However, the attainment of those objectives will be undermined by
the adoption of weak regulatory instruments within the international climate
change regime. The climate change regime will be instrumentally incoherent
where the choice of institutions and rules does not correspond with the
underlying policy goals of the regime. There appears to be ongoing tension in
the international community between growing scientific and community support
for strong action on the serious threat of climate change and political resistance to
the adoption of a strong regulatory approach to reduce global greenhouse gas
emissions. The UNFCCC does not specify the level, and timing, of abatement to
achieve its objectives. Moreover, the specific targets of the Kyoto Protocol are
clearly inadequate to avoid adverse climate change and will achieve no more than
a five per cent reduction in the greenhouse gas emissions of some developed
nations, compared to 1990 levels, by the end of the first commitment period in
2012.
fundamental disconnect between the need for significant and rapid reductions in
emissions and the absence of consensus to a regime with a strong disciplining
force. Until such time as international consensus is achieved to a significant
quantum of emission reductions within a rapid timeframe, the regime will
continue to be ineffective in achieving its true objective of avoiding the adverse
impacts of climate change.
263
170
265
Accordingly:
the effectiveness of international regimes is not a one-way relationship from an
international institution to domestic policy implementation. It is better understood
as an interactive process that includes domestic policy ideas and trajectories
interacting with international negotiations and institutions.266
264
265
171
greater powers to issue directions regarding the domestic policies and emitting
activities of parties to the regime. This may include the imposition of duties on
nation States to promote research and development, energy efficiency and other
policies to modify social behaviour.
Protocol, the emission reduction targets are limited and apply only to a selection
of developed nations. Moreover, the stated enforcement provisions of the Kyoto
Protocol were not properly ratified and are not legally binding on the parties. To
further compound this issue, the parties may withdraw from these agreements, at
any time, without penalty.
172
CONCLUSION
267
See Axel Michaelowa, 'Flexible Instruments of Climate Policy' in Axel Michaelowa and Michael
Dutschke (eds), Climate Policy and Development: Flexible Instruments and Developing Countries
(2000) Cheltenham, UK, Edward Elgar, 1.
268
Benner, Reinicke and Martin Witte, n113; Patrizia Nanz and Jens Steffek, 'Global Governance,
Participation and the Public Sphere' (2004) 39(2) Government and Opposition 314; Benjamin
Richardson, 'Enlisting Institutional Investors in Environmental Regulation: Some Comparative
Theoretical Perspectives' (2002) 28(2) North Carolina Journal of International Law and Commercial
Regulation 247.
173
incorporate a strict and universal emission reduction duty for all nations that is
linked to the scientific consensus regarding the magnitude and timescale of
necessary emission reductions.
The potential benefits of the carbon market have captured international attention
and acted as a catalyst for the development of regional and national emission
trading schemes.
refined to ensure that they promote the environmental integrity of the regime
rather than bringing it into question. Moreover, to operate effectively, these
market mechanisms must be supported by the compatible and harmonious
treatment of tradeable emission instruments within the legal systems of
participating domestic jurisdictions.
174
INTRODUCTION
The purpose of this chapter is to analyse critically the current role of Australian
law in directly regulating greenhouse gas emissions and mitigating the impacts of
climate change.
Department of the Environment and Heritage, 'Tracking to the Kyoto Target 2006: Australia's
Greenhouse Emissions Trends 1990 to 2008-2012 and 2020' (Australian Greenhouse Office, 2006) at
3.
175
On a per capita basis, Australia is the third highest emitter of greenhouse gases. 2
Australia contributes 1.43 per cent of the worlds carbon emissions and
comprises 0.32 per cent of the global population. 3 Australias largest and fastest
growing source of emissions comes from energy use and consumption levels are
rising along with Australias rate of economic growth. 4 Emissions from the
energy sector comprised approximately 69 per cent of national emissions in
2004.5 The majority of Australias electricity is fuelled by non-renewable fuels
such as coal and gas with approximately 10 per cent of electricity sourced from
renewable energy including hydro-electric plants. 6 The agriculture sector is
responsible for 16.5 per cent of Australias net emissions and a further 6.3 per
cent of net emissions comes from the land use, land use change and forestry
sector. 7 This sector includes land clearing which, in the 1990s, was a major
source of Australias greenhouse gas emissions. 8 There are now strict controls on
widespread land clearing across Australia. 9
176
Australia has an energy intensive economy and exports two thirds of its primary
energy production with approximately AU$24 million in exports a year,
primarily from the sale of coal. 10 Moreover, Australias population and economy
are both continuing to grow. Without emissions reductions initiatives, and
excluding land use change, Australias emissions have been predicted to grow by
28 per cent from 1990 to 2010 with an increase of 40 per cent in energy sector
emissions. 11
10
Australian Government Energy Task Force, 'Securing Australia's Energy Future' (Department of the
Prime Minister and Cabinet, 2004) at 2; John Wright, 'Towards An Australian Hydrogen Economy'
(2006) 63(6) International Journal of Environmental Studies 837 at 837; R John Samdeman Oam, 'A
Critique of Present Australian Energy Policy' (2006) 63(6) International Journal of Environmental
Studies 719 at 720.
11
Australian Government, 'The National Greenhouse Strategy: Strategic Framework for Advancing
Australia's Greenhouse Response' (Australian Government, 1998) at vii.
12
United Nations Framework Convention on Climate Change, opened for signature on 4 June 1992,
31 ILM 849 (entered into force on 21 March 1994) (UNFCCC).
13
Ibid, Article 2.
14
Kyoto Protocol to the United Nations Framework Convention on Climate Change, opened for
signature 16 March 1998 (entered into force on 16 February 2005)(Kyoto Protocol)(together the
Kyoto Protocol and UNFCCC are referred to as the climate change regime). Australia signed the
Kyoto Protocol on 29 April 1998. Following the change of government in 2007, the instrument of
ratification was deposited with the UNFCCC Secretariat on 12 December 2007 and entered into force
on 11 March 2008.
15
The other nations granted an increase were Norway and Iceland.
16
This includes afforestation, reforestation and deforestation activities that have been measured as
verifiable changes in carbon stocks. Kyoto Protocol, n14, Article 3.3.
177
Australias ongoing political position remained that it would not ratify the Kyoto
Protocol unless, and until, it was in the national interest to do so. The then Prime
Minister asserted that, due to Australias special position as an emissions
intensive economy, the Kyoto Protocol would cost jobs and damage Australian
industry. 18 The impacts on the Australian economy from the use of emissions
caps were described by the Australian Greenhouse Office as follows:
compliance with our international greenhouse gas emission commitments will
require a degree of structural adjustment within the economy and, as relatively
emissions-intensive economy... would involve real economic costs for Australia.19
.
the imposition of an emissions cap is likely to reduce opportunities for growth and
increased income.20
Despite the governmental decision to not ratify the Kyoto Protocol, the Federal
government continually reaffirmed its commitment to meet the 108 per cent
target under the Kyoto Protocol on a voluntary basis.21 Following the change in
government, on 11 March 2008, Australia became a party to the Kyoto Protocol
and became bound by the emission reduction targets within that agreement.
17
Planet Ark, Worlds Biggest Coal Exporter Australia Dumps Kyoto (6 June 2002, Australia),
http://www.planetark.org/dailynewsstory.cfm/newsid/16298/story.htm at 15 June 2008.
18
Prime Minister John Howard, Representatives, 5 June 2002, Answers to Questions Without Notice,
3163
19
Australian Greenhouse Office, June 1999, National Emissions Trading, Issuing the Permits,
Discussion Paper No.2, chapter 5 at 45.
20
Ibid, chapter 4 at 39.
21
Department of the Environment and Heritage, n1, 3. SoE 2006, n4, 27.
178
Until 2008, the Australian government focused primarily on the use of voluntary
initiatives and policies to address climate change and meet its international
climate change obligations. Accordingly, there is currently no comprehensive
regulation of greenhouse gas emissions in Australia. In recent years, the climate
change debate has shifted to the benefits and risks of establishing an emissions
trading system for Australia.
22
179
The AGO is responsible for the coordination of domestic climate change policy
and the delivery of Commonwealth programs. 28 Those include the imposition of
technical standards for energy generation 29 and voluntary incentive schemes such
as the Greenhouse Gas Abatement Program (GGAP), Renewable Energy
Commercialisation Program (RECP) and Renewable Energy Showcase
Program. 30
25
Ibid.
Australian Government, 'The National Greenhouse Strategy: Strategic Framework for Advancing
Australia's Greenhouse Response' (Australian Government, 1998).
27
Ibid, iii.
28
Ibid, 107.
29
For example, Generator Efficiency Standards (GES) were introduced from 1 July 2000 and were
intended to achieve movement towards best practice in the efficiency of fossil-fuelled electricity
generation, and to deliver reductions in the greenhouse gas intensity of energy supply. See AGO,
Generator Efficiency Standards, http://www.greenhouse.gov.au/ges/index.html at 15 June 2008.
30
Australian Greenhouse Office, 'Renewable Energy Commercialisation in Australia' (AGO, 2003) at
viii.
31
Australian Greenhouse Office, Greenhouse Gas Abatement Program (GGAP),
http://www.greenhouse.gov.au/ggap/index.html at 15 June 2008.
26
180
of power from waste, energy efficiency, coal mine gas technologies and
alternative fuel sources. 32
The Renewable Energy Showcase Program was launched in 1998 and offered
funding to renewable energy projects following a competitive tender process.33
This was followed by the launch of the Renewable Energy Commercialisation
Program (RECP) in 1999, a five-year competitive grants program that provided
financial support for strategically important renewable energy technology
initiatives that have strong commercial potential. 34 The Renewable Energy
Industry Program (REIP) was also integrated into the RECP.35
32
Ibid.
Australian Greenhouse Office, 'Renewable Energy Commercialisation in Australia' (AGO, 2003) at
viii.
34
Ibid.
35
Ibid.
36
Rory Sullivan, 'Greenhouse Challenge Plus: a new departure or more of the same?' (2006) 23(1)
Environmental and Planning Law Journal 60 at 60.
37
Australian Greenhouse Office, 'Greenhouse Challenge Plus: Programme Framework 2005' (AGO,
2005) at 1.
38
Ibid, 3.
33
181
The Greenhouse Friendly initiative was launched in 2001 and now forms part of
the Australian Government's Greenhouse Challenge Plus program. 40 Greenhouse
Friendly was a voluntary initiative that aimed to provide businesses with the
opportunity to market greenhouse neutral products and services and consumers
with greater purchasing choices. 41 The Greenhouse Friendly program certified
and independently verified voluntary abatement projects in Australia. 42 Approved
abatement projects included energy efficiency initiatives, waste diversion and
recycling, land fill gas capture and flaring, renewable energy generation, and tree
planting and avoided deforestation projects.
43
39
Australian Taxation Office, Fuel Tax Credit and the Greenhouse Challenge Plus Programme
(ATO, 2007); http://www.ato.gov.au/businesses/content.asp?doc=/content/76476.htm at 15 June 2008;
Australian Greenhouse Office, Fuel Tax Credits and Greenhouse Challenge Plus Membership
http://www.greenhouse.gov.au/challenge/members/fueltaxcredits.html at 15 June 2008.
40
Australian Greenhouse Office, 'Greenhouse Friendly Guidelines' (AGO, 2006) at 1.
41
Ibid.
42
Ibid.
43
Australian Greenhouse Office, Abatement Projects
http://www.greenhouse.gov.au/greenhousefriendly/abatement/projects.html at 15 June 2008.
44
Australian Greenhouse Office, 'Greenhouse Friendly Guidelines' (AGO, 2006) at 19.
182
The Federal government accepted that some response to climate change was
required and introduced a national greenhouse gas emissions reporting system
that was intended to operate in conjunction with the then proposed national
45
183
emissions trading system. 48 The National Greenhouse and Energy Reporting Act
2007 (Cth) requires corporations that emitted above specified threshold levels to
report on their greenhouse gas emissions and energy use through a national
register. 49 The obligation to report commenced on 1 July 2008 with the first
report due in October 2009. The data is intended to be made publicly available
following each reporting period. 50 This Act is largely administrative in nature
and merely requires the submission of reports on levels of emissions. There was
no substantive duty created by this legislation to require, for example, that steps
are to be taken to reduce these reported emissions.
Following the change in Federal government in late 2007, and the subsequent
ratification of the Kyoto Protocol, a significant shift in governmental climate
change policy and regulation was now expected to occur. The current Federal
Government has committed to a target of reducing Australias greenhouse gas
emissions by 60 per cent by 2050. 51 However, this target has not yet been
embedded in legislation and the portfolio of measures for achieving the
reductions has not yet been determined. 52 It appears that significant emphasis
will be placed on a Federal emissions trading scheme as the primary means for
regulating greenhouse gases in Australia.
48
Prime Ministerial Task Group on Emissions Trading, 'Report of the Task Group on Emissions
Trading' (The Department of the Prime Minister and Cabinet, 2007).
49
The thresholds are set out in the National Greenhouse and Energy Reporting Act 2007 (Cth), s13.
50
AGO, National Greenhouse and Energy Reporting Act 2007: Fact Sheet (October 2007)
http://www.greenhouse.gov.au/reporting/publications/pubs/nger-fs.pdf at 15 June 2008.
51
Australian Government, 'Media Release: Government Announces Detailed Timetable on Emissions
Trading' (Senator the Hon Penny Wong, Minister for Climate Change and Water, PW 35/08, 17
March, 2008).
52
Ibid.
184
The objects of the Climate Change and Greenhouse Emissions Reduction Act
2007 (SA) are:
(a) to assist in the achievement of ecologically sustainable development in the State
by addressing issues associated with climate change and, in particular
(i) by setting a target (the SA target) to reduce by 31 December 2050 greenhouse
gas emissions within the State by at least 60% to an amount that is equal to or less
than 40% of 1990 levels as part of a national and international response to climate
change; and
(ii) by setting related targets (the renewable electricity targets)
(A) to increase the proportion of renewable electricity generated so that it comprises
at least 20% of electricity generated in the State by 31 December 2014;
(B) to increase the proportion of renewable electricity consumed so that it
comprises at least 20% of electricity consumed in the State by 31 December 2014.
53
These targets were adopted as part of the Government of South Australia Strategic Plan 2007,
http://www.stateplan.sa.gov.au/, at 15 June 2008, Target T3.5.
185
With respect to policy developments, the SA Act states that the Minister should
seek to develop government policies that will assist in:
(i) reducing or limiting climate change or greenhouse gas emissions, or mitigating
the effects of climate change or greenhouse gas emissions; and
(ii) promoting or implementing measures to facilitate adaptation to circumstances
that will inevitably be caused by climate change.54
The Minister is able to set interim targets, sector specific targets and community
wide targets to reduce emissions. 55 However, no interim targets have been
adopted and the language of this Act has been criticised for being largely
hortatory. 56 This may be contrasted with the approach in the United Kingdom
which imposes a statutory duty on the government to achieve a reduction of at
least 60 per cent below 1990 levels by 2050. If the target is not met then this
duty may potentially be enforced through civil enforcement orders against the
State.57
Other Australian states and territories are yet to adopt legislative emission
reduction targets. In Western Australia, the Premier has indicated that the state
government will implement legislation in the future to adopt an emissions
reduction target of 60 per cent below 2000 levels by 2050 in accordance with the
target adopted at the Council of Australia Governments (COAG) in April 2007.58
54
Climate Change and Greenhouse Emissions Reduction Act 2007 (SA), section 14(1)(a).
Climate Change and Greenhouse Emissions Reduction Act 2007 (SA), ss 5(3), 5(5). The Minister
may also set baselines and methods for calculating greenhouse gas emissions ss 5(3),5(4).
56
Rob Fowler, 'Emissions Reduction Targets Legislation' in Tim Bonyhady and Peter Christoff (eds),
Climate Law in Australia (2007) Sydney, The Federation Press, 103 at 115.
57
Climate Change Bill [HL] 2007-2008 (UK) section 1(1). Ibid, 118. The Bill was introduced into the
House of Lords on 14 November 2007 and completed its passage through the House of Lords on 31
March 2008. It received its second reading in the House of Commons on 9 June 2008. It is expected
to receive Royal Assent in 2008.
58
Government of Western Australia, 'Making Decisions for the Future: Climate Change' (May 2007)
at 9.
55
186
For many years, the previous Australian Federal Government remained firm on
its objection to emissions trading in Australia. As stated in the White Paper
Securing Australias Energy Future:
Australia will not impose significant new economy-wide costs, such as emissions
trading, in its greenhouse response at this stage. Such action is premature, in the
absence of effective longer-term global action on climate change, and given
Australia is on track to meet its Kyoto 108 per cent target. Pursuing this path in
advance of an effective global response would harm Australia's competitiveness and
growth with no certain climate change benefits.59
59
Australian Government Energy Task Force, 'Securing Australia's Energy Future' (Department of the
Prime Minister and Cabinet, 2004) at 25.
60
Renewable Energy (Electricity) Act 2000 (Cth).
61
Electricity Supply Act 1995 (NSW).
62
Victorian Renewable Energy Act 2006 (Vic).
63
Australian Greenhouse Office, 'Renewable Energy Commercialisation in Australia' (AGO, 2003) at
vii.
187
amount of their electricity from renewable energy sources through the annual
surrender of renewable energy certificates (RECs).
64
Renewable energy
certificates were created by accredited generators for each whole megawatt hour
of electricity generated from eligible renewable sources in excess of the
prescribed baseline. 65 Eligible sources included hydro, biomass, wind, solar and
co-firing of biomass in large coal-fired power stations. 66
Any shortfall in
64
188
user abatement.72 GGAS was criticised for its lack of demonstrated additionality,
or actual reductions in emissions, as numerous NGACs were created for
installations and operational changes implemented prior to the scheme
commencement.73 The NGACs were also intended to be compatible with the
Kyoto Protocol allowances but key differences in the long-term treatment of
carbon sinks would prevent fungibility between these instruments.74
A similar initiative was introduced under the Victorian Renewable Energy Target
Scheme from January 2007. 75 The regime mandated that the consumption of
electricity generated from renewable sources in Victoria must be 10 per cent by
2016. 76 Under the scheme, all electricity retailers and wholesale purchasers of
electricity in Victoria had a legal liability to contribute towards the generation of
additional renewable energy by acquiring Victorian renewable energy certificates
(VRECs). 77 VRECs were able to be created by accredited renewable energy
power stations and small generation unit owners. 78
The Queensland government also introduced, from January 2005, the 13 per cent
Gas Scheme which required electricity retailers to source at least 13 per cent of
their electricity from gas-fired electricity. 79 The Queensland 13 per cent Gas
Scheme (or 18 per cent by 2020) required electricity retailers to surrender gasfired electricity certificates (GECs) to the regulator. 80 GECs were issued by
72
189
Emissions trading has gained greater political approval in recent years and a
national emissions trading system for Australia now appears imminent. In 2004,
the National Emissions Trading Taskforce (NETT) initially proposed a national,
state-based, emissions trading system.82 The proposal was supported by all state
and territory governments and Federal support was sought for the implementation
of the program. However, the Federal government opposed the proposal and the
Australian states and territories announced that they would commence the NETT
model, by the end of 2010, if the Federal government failed to implement its own
system.83
81
Ibid.
http://www.cabinet.nsw.gov.au/greenhouse/emissionstrading at 15 June 2008. A discussion paper
outlining the proposed scheme was released in August 2006.
83
Council for the Australian Federation, Communique: 7 February 2007 Sydney at
http://www.emissionstrading.org.au/__data/assets/pdf_file/0016/6343/CAF_communique_9feb07.pdf
at 15 June 2008.
84
Prime Ministerial Task Group on Emissions Trading, 'Report of the Task Group on Emissions
Trading' (The Department of the Prime Minister and Cabinet, 2007) at 9, 85.
82
190
imposed on large scale users of fossil fuels and fossil fuel distributors and the
system was intended to become operational by the end of 2011.
The key features of the emissions trading scheme were to be announced in mid2008 including the long term emissions reduction target for the market. 85
Whatever form this scheme may have ultimately taken, it suffered from a
potentially fatal flaw by being designed prior to the adoption of an appropriate
emissions reduction target for Australia. Accordingly, the design of the scheme
was focused primarily on the avoidance of negative impacts on Australias global
competitiveness rather than on the adoption of strict emission reduction
obligations to avoid the impacts of climate change.
Ibid, 144.
Draft emissions trading legislation is expected to be released for comment at the end of 2008.
Australian Government, 'Media Release: Government Announces Detailed Timetable on Emissions
Trading' (Senator the Hon Penny Wong, Minister for Climate Change and Water, PW 35/08, 17
March, 2008). Prime Minister Kevin Rudd has committed to the adoption of a long term target for
Australia of reducing emissions by 60 per cent on 2000 levels by 2050 with interim targets to be
established. Prime Minister Kevin Rudd, Ratifying the Kyoto Protocol (3 December 2007, Media
Statement) http://www.alp.org.au/media/1207/mspm030.php at 15 June 2008. It is unclear the extent
to which this scheme will build upon the design work of the previous Prime Ministerial Task Group
on Emissions Trading.
87
There will significant issues in attempting to merge these trading schemes into a national carbon
trading market with their variances in the creation and treatment of tradeable instruments. See, for
example, State of New South Wales, 'Transitional Arrangements for the NSW Greenhouse Gas
Reduction Scheme' (New South Wales Department of Water and Energy, 2008).
88
The future Australian emission trading system is examined in Chapter Seven.
86
191
89
B.S. Fisher et al, 'Issues related to mitigation in the long term context' in B. Metz et al (eds),
Climate Change 2007: Mitigation. Contribution of Working Group III to the Fourth Assessment
Report of the Inter-governmental Panel on Climate Change (2007) Cambridge, Cambridge University
Press at 173.
90
Garnaut Climate Change Review, 'Interim Report to the Commonwealth, State and Territory
Governments of Australia' (2008) at 39.
192
Australia relies heavily on coal for the domestic generation of electricity and this
is a significant source of national greenhouse gas emissions.
Given the
91
The current Prime Minister has committed to ensuring that at least 20 per cent of Australia's
electricity supply is generated from renewable sources by 2020. This is yet to be legislatively
mandated. Prime Minister Kevin Rudd, Ratifying the Kyoto Protocol (3 December 2007, Media
Statement) http://www.alp.org.au/media/1207/mspm030.php at 15 June 2008.
92
See Mark Diesendorf, Greenhouse Solutions with Sustainable Energy (2007) Sydney, University of
New South Wales Press.
93
David Harries et al, 'Hydro, Tidal and Wave Energy in Australia' (2006) 63(6) International
Journal of Environmental Studies 803 at 803.
94
R John Samdeman Oam, 'A Critique of Present Australian Energy Policy' (2006) 63(6)
International Journal of Environmental Studies 719 at 725.
95
Harries et al, n93, 806.
96
Ibid, 806-808.
193
source of wave energy along the southern coastline and this technology is
currently in the research and development phase. 97
It has been commented that wind power is one of the least expensive and most
environmentally sound of the new renewable sources of electricity and has the
potential to provide at least 20 per cent of Australias electricity within a few
decades.98 The barriers to the development of wind power in Australia include its
reputation as an intermittent rather than reliable source of power; conflict with
competing land uses; and the perceived local environmental and aesthetic
impacts of the wind farms themselves.99
Although Australia possesses the highest average solar radiation resource of any
of the worlds continents the market response has been limited with
approximately five per cent market penetration of solar water heaters. 100
Geothermal energy, although not strictly renewable, is also a potential major
energy source for Australia. 101 The Cooper Basin has the worlds largest known
concentration of hot fractured granite suitable for heat extraction and is reported
to have the capacity to supply all of Australias energy needs for the next 70
years. 102 However, these resources are currently largely unexploited due to the
remoteness of the geothermal resources from major electricity load centres. 103
There has been significant debate in Australia regarding the benefits and risks
associated with nuclear energy including the safety of nuclear reactors and the
97
Ibid, 808-809.
Mark Diesendorf, 'Wind Power in Australia' (2006) 63(6) International Journal of Environmental
Studies 765 at 774.
99
Ibid.
100
Keith Lovegrove and Mike Dennis, 'Solar Thermal Energy Systems in Australia' (2006) 63(6)
International Journal of Environmental Studies 791 at 800-801.
101
David Harries et al, 'Geothermal Energy in Australia' (2006) 63(6) International Journal of
Environmental Studies 815 at 817-820.
102
Samdeman Oam, n94, 725.
103
David Harries et al, n101, 820.
98
194
treatment and disposal of nuclear waste. 104 Those in favour of nuclear power have
commented that it shows considerable promise for the production of large
amounts of reliable, low carbon electricity. 105 The Prime Ministers Nuclear
Energy Taskforce considered these issues and issued its report in December
2006.106 The report concluded that reducing Australias greenhouse gas emissions
requires a full spectrum of initiatives and its goals cannot be met by nuclear
power alone.107 The report estimates that the emissions reductions from nuclear
power could be 8 to 17 per cent of national emissions in 2050. 108 The report also
notes that nuclear power is likely to be between 20 and 50 per cent more costly to
produce than power from a new coal-fired plant at current fossil fuel prices.109 The
Taskforce concluded that for nuclear power and renewable energy sources to
become competitive in Australia, the costs of greenhouse gas emissions must be
an explicit cost of production.110 Potential mechanisms identified to achieve this,
and properly price greenhouse gas emissions, included carbon taxes, permit
trading and emissions charges. 111
It appears that the regulation of greenhouse gases in Australia will require a full
portfolio of policies and measures that incentivise and mandate a range of
renewable energy solutions as well as imposing strict legally enforceable
obligations to reduce annual greenhouse gas emissions. The maturity of these
renewable energy technologies will inevitably influence political deliberations
regarding the stringency of mandates to uptake renewable energy in the near term.
The commercial competitiveness of these alternative energy sources will also
104
For example, see Martin Sevior, 'Considerations for Nuclear Power in Australia' (2006) 63(6)
International Journal of Environmental Studies 859 at 869-871; Jim Falk, Jim Green and Gavin Mudd,
'Australia, Uranium and Nuclear Power' (2006) 63(6) International Journal of Environmental Studies ;
Geoffrey N. Taylor, 'Australia: Host for a Nuclear Waste Storage Site?' (2006) 63(6) International
Journal of Environmental Studies 873.
105
Sevior, n104, 871.
106
Commonwealth of Australia 2006, Uranium Mining, Processing and Nuclear Energy
Opportunities for Australia?, Report to the Prime Minister by the Uranium Mining, Processing and
Nuclear Energy Review Taskforce, December 2006.
107
Ibid, 2.
108
Ibid.
109
Ibid.
110
Ibid.
111
Nuclear Energy Taskforce, n106, 61.
195
play a significant role in their rate of mobilisation and uptake. Therefore, the
development and deployment of these technologies will need to be assisted
through additional subsidies and grants from the government. As commented:
it is clear that there is substantial potential for a range of renewable energy
technologies to play a part in Australias future energy mix. But, even wind power,
the most mature, is still over twice as expensive as Australian coal-fired electricity
generators.112
In addition to its obligations under the UNFCCC and the Kyoto Protocol
Australia also formed a number of other multilateral and plurilateral agreements.
The most significant of these is the Asia-Pacific Partnership on Clean
Development and Climate (AP6), initiated in 2005. Unlike the climate change
regime, this international cooperative agreement is focused on the development
and deployment of improved technologies to address energy security and combat
112
196
The partnership, known as the AP6, comprises Australia, the United States,
China, India, Canada, Japan and the Republic of Korea.114 AP6 aims to establish
international public-private collaboration to address increased energy needs and
associated challenges, including those related to air pollution, energy security,
and greenhouse gas intensities, in accordance with national circumstances,
through the development, deployment and transfer of cost-effective cleaner
technologies. 115 It intends to achieve this whilst ensuring ongoing economic
growth and development.116
voluntary,
cooperation. 117
non-legally
binding,
framework
for
international
113
Harro van Asselt, 'From UN-ity to Diversity? The UNFCCC, the Asia-Pacific Partnership and the
Future of International Law on Climate Change' (2007) 1 Carbon and Climate Law Review 17 at 1718.
114
Canada joined AP6 in October 2007. Asia-Pacific Partnership on Clean Development and Climate
http://www.asiapacificpartnership.org/ at 15 June 2008.
115
Asia-Pacific Partnership on Clean Development and Climate, 'Charter' (Adopted, Inaugural
Ministerial Meeting, Sydney, 11-13 January 2006, Amended, Second Ministerial Meeting, New Delhi,
14-15 October 2007), http://www.asiapacificpartnership.org/charter.pdf at 15 June 2008. Principles
1.1 and 2.1.
116
Charter, ibid, Annex I Vision Statement of Australia, China, India, Japan, the Republic of Korea,
and the United States of America for a New Asia-Pacific Partnership on Clean Development and
Climate 28 July 2005 at 5.
117
Ibid, Preambles and Principle 2.1.1.
118
Ibid, Principles 2 and 3.
197
The AP6 Policy and Implementation Committee is responsible for the overall
framework, policies, and procedures of the AP6 and will periodically review the
progress of collaboration, and provide direction to the Administrative Support
Group.120 The Administrative Support Group serves as the principal coordinator
of the AP6s communications and activities.121
Under the AP6s agreed Work Plan, 122 eight public-private task forces were
created which focus on power generation and distribution and on key industry
sectors. These task forces were intended to draw on the expertise of private
sectors, research communities and governments to consider the following areas:
steel;
aluminium;
cement;
119
Ibid, Preambles at 1.
Ibid, Principle 4.2. Any Partner may terminate its membership upon written notice 90 days prior to
the anticipated termination, Charter, Principle 8.1.
121
Ibid, Principle 4.3.
122
Asia-Pacific Partnership on Clean Development and Climate, 'Work Plan' (Inaugural Ministerial
Meeting, Sydney, Australia, 11-12 January 2006) http://www.asiapacificpartnership.org/workplan.pdf
at 24 June 2008.
120
198
Each task force was directed to define the current state of technology in terms of
cost, performance, market share and barriers and to devise action plans for their
sector. 123 The actions plans for each sector were endorsed by the Policy and
Implementation Committee in October 2006. The aim of these task forces was to
improve energy efficiency, promote best practice, and develop new lowemissions solutions.124 In particular, task forces were able to designate flagship
projects and activities, as part of their action plans, that, collectively, exemplified
the vision and objectives of AP6.125 Sector based emission reduction targets were
not set.
127
technologies was also specifically included in the action plan for the Cleaner
Fossil Energy Task Force. 128
123
Ibid, 1.
Asia-Pacific Partnership on Clean Development and Climate, Second Ministerial Meeting
Communiqu, (New Delhi, India 15 October 2007)
http://www.asiapacificpartnership.org/DelhiCommunique.pdf at 15 June 2008.
125
Asia-Pacific Partnership on Clean Development and Climate, Flagship Guidelines,
http://www.asiapacificpartnership.org/Flagshipguidelines.pdf at 15 June 2008.
126
Prime Minister of Australia, Asia-Pacific Partnership Sets New Path To Address Climate Change,
Press Release No 1743 (12 January 2006).
127
Cleaner Fossil Energy Task Force, http://www.asiapacificpartnership.org/FossilEnergyTF.htm at
15 June 2008. The development of post combustion capture technologies was part of the action plan
for the Cleaner Fossil Energy Task Force,
128
Asia-Pacific Partnership on Clean Development and Climate, Executive Summary of Task Force
Action Plans
http://www.asiapacificpartnership.org/APP%20Action%20Plans/ExecutiveSummary%20_31%20Oct
%2006_%20_2_.pdf at 15 June 2008.
124
199
This dependence on the saving graces of CCS to offset emissions from energy
intensive industries, rather than the imposition of strict emission reduction
obligations, is once again symptomatic of the generally dysfunctional approach to
climate change regulation in Australia. This over-emphasis on so-called clean
coal technology to protect Australias competitiveness and growth from stringent
emission reductions fails to appreciate that it is the very phenomenon of climate
change which is the real threat to Australias future economic, environmental and
social well-being.
129
AM Warburton et al, 'Geosequestration Law in Australia' in Tim Bonyhady and Peter Christoff
(eds), Climate Law in Australia (2007) Sydney, The Federation Press, 142 at 142, 159. The legal
issues in implementing these CCS projects in Australia are considered in Chapter Seven.
130
Ibid,160.
131
UNFCCC, n12, Article 4.
132
Kyoto Protocol, n14, Article 2.
133
Cf. Peter Christoff and Robyn Eckersley, 'Kyoto and the Asia-Pacific Partnership on Clean
Development and Climate' in Tim Bonyhady and Peter Christoff (eds), Climate Law in Australia
(2007) Sydney, The Federation Press, 32 at 37,42.
200
is consistent with efforts under the UNFCCC and would complement, but not
replace, the Kyoto Protocol.134
It appears unlikely that the AP6 will have any substantive effect on the
international and national response to greenhouse gas emissions and climate
change. The AP6 is not an international treaty; the terms of the agreement are
not binding on its members; and it is not legally enforceable.136 As noted by one
commentator, the degree of precision of commitments under the AP6 is rather
low, which makes it difficult to see how the agreement could have any legal
effects. 137
dependent upon the effectiveness of the AP6 in obtaining adequate funding from
its members, on a voluntary basis, to enable the implementation of the various
task force work plans.
134
201
138
202
made clear but the report referred to existing government initiatives including the
Greenhouse Gas Abatement Programme, Challenge Plus-Industry Partnerships,
Mandatory Renewable Energy Target and the NSW Greenhouse Gas Abatement
Scheme. 146 The report also referred to examples of government funding of low
emissions technologies and renewable energy. 147 However, even with those
greenhouse measures, the report concluded that emissions would rise to 127 per
cent of 1990 levels by 2020.148
Those
projections were that global greenhouse gas emission levels would almost triple
between 2001 and 2050. 150 Based on this report, and taking into account the
predicted reductions from AP6 initiatives, this would nevertheless result in a
doubling of emissions by 2050 compared to the reductions required under the
Kyoto Protocol. Accordingly, on the basis of these reports, the direct legal
response to climate change in Australia has clearly been ineffective given the
level and rate of emissions reductions now required to not only meet the
conservative targets under the Kyoto Protocol but also to reduce emissions in
order to avoid adverse anthropogenic interference with the climate system.
146
Ibid, 17.
Ibid, 19.
148
Ibid, 1,19.
149
Brian Fisher et al, 'Technological Development and Economic Growth' (ABARE Research Report
06.1, Australian Bureau of Agriculture and Resource Economics, 2006) at 34.
150
Ibid, 14.
147
203
The member states of the European Union (EU) elected to fulfil their
commitments under the Kyoto Protocol as an EU Bubble and have a collective
commitment to achieve an eight per cent reduction in greenhouse gas
emissions. 152 The EU commenced an EU-wide emissions trading scheme, from
January 2005, as one of the key policy measures to achieve greenhouse gas
emission reductions and to assist EU member states to meet their target under the
Kyoto Protocol.153 Each member state was obliged to implement the EU scheme
through the passing of national legislation consistent with the directives of the
151
The current Australian Prime Minister has committed to the adoption of a long term target for
Australia of reducing emissions by 60 per cent on 2000 levels by 2050 with interim targets to be
established in late 2008. Prime Minister Kevin Rudd, Ratifying the Kyoto Protocol (3 December
2007, Media Statement) http://www.alp.org.au/media/1207/mspm030.php at 15 June 2008.
152
This is permitted under Article 4.1 of the Kyoto Protocol, n14.
153
European Union (2005) Greenhouse Gas Emission Allowance Trading Scheme at
http://europa.eu/scadplus/leg/en/lvb/l28012.htm at 15 June 2008. EU Directive 2003/87/EC (entry
into force 25.10.2003) published in OJL of the 25.10.2003.
204
EU Parliament. The trading scheme imposes caps on the national carbon dioxide
emissions of all member states which must then be translated into national plans
with allocations for the various domestic sectors.154
The EU has advocated that to achieve the objectives of the climate change
regime, and avoid adverse climate change, surface temperature increases should
be limited to a 2 degrees Celsius increase compared to pre-industrial levels. 155
The EU asserts that this would require that global greenhouse gas emissions are
reduced to at least 50 per cent below 1990 levels by 2050. 156 In March 2007, the
EU resolved to reduce greenhouse gas emissions by at least 20 per cent below
1990 levels by 2020 and challenged the world to follow suit.157 The EU also
adopted targets of a 20 per cent increase in energy efficiency; 20 per cent
increase in the share of renewable energy in the EUs overall energy use; and a
minimum 10 per cent share for biofuels in petrol and diesel by 2020. 158 A
common EU energy plan to implement these targets is currently in the process of
development and consultation with member states.159
154
205
In addition to the EU targets, the United Kingdom (UK) has adopted a long term
target of at least 60 per cent reductions in carbon dioxide emissions, below 1990
levels, by 2050 and 26 to 32 per cent below 1990 levels by 2020. 160 This will be
achieved through the adoption of 5 year carbon budgets.161 The creation of a UK
trading scheme, with wider sectoral coverage than that of the EU scheme, is also
envisaged.162 Uniquely, the Climate Change Act will impose a statutory duty on
the Secretary of State to ensure that the emission reduction targets are met.163
Canada
In April 2007, the government of Canada adopted a short term target of 20 per
cent reductions in emissions, below 2006 levels, by 2050.164 In March 2008, the
government announced the regulatory framework for meeting this target which
included the imposition of obligations on all covered industrial sectors to reduce
their emissions intensity from 2006 levels by 18 per cent by 2010, with 2 per cent
continuous improvement every year after that. 165 Industries may elect to reduce
emissions or obtain sufficient credits via a number of flexible compliance
mechanisms.166 Proposed greenhouse gas regulations are to be published in late
2008 and will come into force on 1 January 2010. 167 The Alberta government of
160
The Committee on Climate Change, to be established under Part 2 of the Bill, will consider
whether this long term target should be 80 per cent below 1990 levels. Climate Change Bill [HL]
2007-2008 (UK). The Bill was introduced into the House of Lords on 14 November 2007 and
completed its passage through the House of Lords on 31 March 2008. It received its second reading in
the House of Commons on 9 June 2008. It is expected to receive Royal Assent in 2008. DEFRA, UK
Legislation: taking the Climate Change Bill forward-progress (18 February 2008)
http://www.defra.gov.uk/Environment/climatechange/uk/legislation/index.htm at 15 June 2008.
161
Climate Change Bill [HL] 2007-2008 (UK), section 4.
162
Climate Change Bill [HL] 2007-2008 (UK), Part 3.
163
Climate Change Bill [HL] 2007-2008 (UK), section 1(1). DEFRA, UK Legislation: taking the
Climate Change Bill forward-progress (18 February 2008)
http://www.defra.gov.uk/Environment/climatechange/uk/legislation/index.htm at 16 June 2008.
164
Government of Canada, Turning the Corner: Regulatory Framework for Industrial Greenhouse
Gas Emissions (Minister of Environment, March 2008) at iii-iv.
165
Ibid.
166
Ibid. These compliance mechanisms include obtaining credits from: domestic offsets; the CDM of
the Kyoto Protocol; the early action program; and payments into a technology fund.
167
Environment Canada, Government Delivers Details of Greenhouse Gas Regulatory Framework
(Ottawa, 10 March 2008), http://www.ec.gc.ca/default.asp?lang=En&n=714D9AAE1&news=B2B42466-B768-424C-9A5B-6D59C2AE1C36 at 15 June 2008.
206
Canada has independently adopted a target of equal to or less than 50 per cent of
1990 levels, relative to Gross Domestic Product, by 31 December 2020.168
Despite the decision of the Federal US government to not ratify the Kyoto
Protocol, a number of states and regions in the US have also adopted measures to
reduce their greenhouse gas emissions. 169 For example, the US state of New
Jersey has adopted a short term target of 1990 levels by 2020 and a long term
target of 80 per cent below 2006 levels by 2050. 170 Connecticut has adopted a
short term target of 1990 levels by 2010, a mid term target of 10 per cent below
1990 by 2020 and a long term target of 75 to 85 per cent below 2001 levels.171
California has also adopted ambitious targets of reducing greenhouse gas
emissions to 2000 levels by 2010; to 1990 levels by 2020; and to 80 per cent
below 1990 levels by 2050.172 To assist in meeting these targets, the California
State Air Resources Board is required to adopt regulations, on or before 1
January 2010, that achieve the maximum technologically feasible and costeffective greenhouse gas emission reductions from sources or categories of
sources.173
168
Alberta Government, Climate Change and Emissions Management Act 2003, section 3(1). Net
emissions intensity limits are imposed on large facilities under Part 2 of the Climate Change and
Emissions Management Act: Specified Gas Emitters Regulation (Alberta Regulation 139/2007).
169
For a summary see Pew Center on Global Climate Change A Look at Emissions Targets
http://www.pewclimate.org/what_s_being_done/targets/ at 16 June 2008.
170
Executive Order No. 54, State of New Jersey Office of the Governor, Press Release: Governor
Corzine Calls for Sweeping Reduction of Greenhouse Gas Emissions in New Jersey (New Jersey, 13
February 2007) http://newjersey.gov/governor/news/news/approved/20070213a.html at 16 June 2008.
171
Connecticut Climate Change Action Plan 2005; Connecticut Climate Change Act 2004
(Connecticut Public Act No. 04-252).
172
Governors Executive Order S-3-05 (1 June 2005); the target of 1990 levels by 2020 is given
statutory status by the California Global Warming Solutions Act 2006 (AB 32).
173
California Global Warming Solutions Act 2006 (AB 32), Part 4.
207
New Zealand
Finally it should be noted that New Zealand (NZ) is also a ratified party to the
Kyoto Protocol and has actively implemented programs aimed at meeting its
target and reducing its greenhouse gas emissions to 1990 levels over the period
2008-2012.174 Meeting this target poses particular challenges for NZ given that,
in 1990, almost 80 per cent of total electricity generation in NZ came from
renewable energy sources including hydro, geothermal and wind. 175 Furthermore,
a significant amount of NZ national emissions come from the agriculture industry
including methane from ruminant animals (30 per cent of national emissions) and
nitrous oxide emissions (18 per cent of national emissions). 176 The technical
solutions for methane, in particular, are quite problematic. 177
Accordingly,
although the adopted target is not as ambitious as that of the EU or the UK, for
example, the efforts of the NZ government appear quite respectable when
compared to the disappointing Australian response to its less onerous target.178
CONCLUDING COMMENTS
174
These include engagement in the market mechanisms of the Kyoto Protocol, implementation of the
Climate Change Response Act 2002 (NZ), designing an emissions trading scheme, establishment of
energy efficiency and sustainability strategies and the creation of the Sustainable Land Management
and Climate Change Plan of Action. New Zealand Ministry for the Environment, Major Climate
Change Policies and Strategies http://www.mfe.govt.nz/issues/climate/policies-initiatives/policiesstrategies.html at 15 June 2008.
175
New Zealand Government, 'New Zealand's Climate Change Solutions: an overview' (2007) at 5.
176
Ibid, 8.
177
Ibid.
178
That is, reductions in national emissions to 108 per cent of reported 1990 levels.
208
The purpose of this chapter was to analyse critically the direct regulatory
approaches to greenhouse gas emissions and climate change in Australia. The
brevity of this chapter is due entirely to the complete absence of direct domestic
regulation aimed at minimising emissions or responding to climate change. This
is despite Australias clear international duties to do so. The approach of the
Federal government has been based, primarily, on ad hoc voluntary schemes
which have provided little incentive for the Australian community to alter its
emitting behaviour or for industry to make significant investments in less energy
intensive technologies or alternative energy sources.
209
210
INTRODUCTION
The regulation of humankinds impacts on the environment is based upon a
sophisticated collection of guiding environmental principles and strict legal rules
that are formulated across international, national, regional and local levels. The
overarching purpose of environmental regulation is to resolve tensions between a
kaleidoscope of conflicting short term economic priorities, social interests and
the long term requirements for a sustainable environment. The phenomenon of
climate change is an environmental problem for which strong regulation is
required to address conflicting short term economic imperat ives and long term
social impacts and environmental degradation. This tension is exacerbated by the
prevailing misunderstanding and doubt regarding the science of climate change
and the causal impacts of greenhouse gas emissions. At an international level,
climate change is regulated through a relatively weak international regulatory
regime with limited emission reduction obligations and weak enforcement
mechanisms. Nations are provided with a vast discretion as to the manner of
domestic regulation of greenhouse gas emissions. In the case of Australia, that
discretion has been exercised to facilitate business as usual and discourage the
restriction of emissions from Australias major industries.
The analysis of the Xstrata case contained in this chapter was published in Nicola Durrant, 'The
Xstrata Coal Mine Challenge: Objections, Judicial Determinations and Natural Justice' (2007) Issue
60 Queensland Environmental Practice Reporter 125. The analysis of adaptation to climate change
and leasing/sale of land contracts contained in this chapter was included in a conference paper entitled
'Addressing Climate Liabilities in Common Transactional Documents' presented at the National
Environmental Law Association The Law of Climate Change Conference, Freemantle Western
Australia, 27-28 March 2008.
211
Society has long acknowledged the inherent tension between continued economic
growth, development and the degradation of the Earths natural resources. The
report of the World Conference on Environment and Development Our Common
212
Actions to address sustainability are clearly interconnected with the global goal
of avoiding adverse climate change. The overriding objective of the United
Nations Framework Convention on Climate Change (UNFCCC) is to achieve the
stabilization of greenhouse gas concentrations in the atmosphere at a level that
would prevent dangerous anthropogenic interference with the climate system.5
G. Bruntland, (ed) 'Report of the World Commission on Environment and Development: Our
Common Future (The Bruntland Report)' (Oxford University Press, 1987).
3
Ibid, 43.
4
Jennifer A. Elliott, An Introduction to Sustainable Development (3 ed, 2006) London, New York,
Routledge at 11.
5
United Nations Framework Convention on Climate Change, opened for signature on 4 June 1992,
31 ILM 849 (entered into force on 21 March 1994)(UNFCCC), Article 2.
6
UNFCCC, n5, Definitions.
7
Jennifer Elliott, n4, 72-73, 77.
213
The UNFCCC states that the Parties have a right to, and should, promote
sustainable development.8 The Kyoto Protocol to the UNFCCC also requires
parties to promote sustainable development in the achievement of their emissions
reduction obligations (or targets).9
214
The
The nature of the rights of future generations is a controversial issue. It has been
described by one commentator as:
the right to those natural resources which are necessary to guarantee basic economic,
social and cultural rights over an indefinite period of timeand the conservation of
the conditions, including conservation of biological diversity, which are necessary
to ensure their attainment.17
14
Alexandre Kiss, 'The Rights and Interests of Future Generations and the Precautionary Principle' in
David Freestone and Ellen Hey (eds), The Precautionary Principle and International Law (1996) The
Netherlands, Kluwer Law International, 19 at 23.
15
United Nations Conference on the Human Environment, 'Declaration of the United Nations
Conference on the Human Environment' (1972), Principle 1.
16
Ibid, Principle 2.
17
Alexandre Kiss, n14, 24.
18
C.J Barrow, Environmental Management for Sustainable Development (2 ed, 2006) New York,
Routledge at 33.
215
reason
environmental
19
degradation.
The precautionary principle was also adopted in the UNFCCC and is described in
the following terms:
the Parties should take precautionary measures to anticipate, prevent or minimize
the causes of climate change and mitigate its adverse effects. Where there are
threats of serious or irreversible damage, lack of full scientific certainty should not
be used as a reason for postponing such measures, taking into account that policies
and measures to deal with climate change should be cost-effective so as to ensure
global benefits at the lowest possible cost.20
The effect of the precautionary principle is, inter alia, to lower the threshold at
which decision-makers must acknowledge that a reasonable risk to the
environment exists.21 It also requires an element of mitigation of the risk of harm
and has been described as the most developed form of the general [r]ule
imposing an obligation to prevent harm to the environment. 22
UNCED, 'United Nations Conference on Environment and Development: The Rio Declaration'
((1992) 31 ILM 874), Principle 15.
20
UNFCCC, n5, Principle 3.
21
Nicolas De Sadeleer, Environmental Principles: From Political Slogans to Legal Rules (2002) New
York, Oxford University Press at 160.
22
Alexandre Kiss, n14, 27.
216
There are a number of instruments that have been adopted and endorsed by the
Commonwealth, states and territories, which provide guiding principles for the
protection of the environment and promotion of environmental sustainability in
Australia.
23
Other than section 100 Commonwealth of Australian Constitution Act which states that the
Commonwealth shall not, by any law or regulation of trade or commerce, abridge the right of a State
or of the residents therein to the reasonable use of the waters of rivers for conservation or irrigation.
24
Commonwealth of Australian Constitution Act ss 51(xx), 51(i), 51 (xxix). Stewart Smith, 'New
Commonwealth and State Government Environment Relationships: Briefing Paper No 18/99' (1999)
at 3-4.
25
Ecologically Sustainable Development Steering Committee, 'National Strategy for Ecologically
Sustainable Development' (Australian Government, 1992), Part 1.
26
Ibid.
217
Further, NSESD states that cost-effective and flexible policy instruments should
be adopted, such as improved valuation, pricing and incentive mechanisms.29
The IGAE also commits to ensuring that environmental issues associated with a
proposed project are taken into consideration and that there is a proper
examination of matters which significantly affect the environment.31 Accordingly,
these guiding instruments are unequivocal in their support for the implementation
and incorporation of the principles of ESD, including the principle of inter-
27
218
DOMESTIC
REGULATION
UNDER
THE
CLIMATE
CHANGE
The UNFCCC and Kyoto Protocol are both international agreements, reached
through international consensus, that are aimed at reducing anthropogenic
greenhouse gas emissions to avoid or reduce the adverse effects of climate
change. 32
Parties are able to choose which greenhouse gases, from a collection of six gases,
will be the focus of their mitigation activities. Parties may also manage domestic
land use management practices and carbon sinks to control net national
32
33
219
emissions.34 This provides parties with ample discretion regarding the nature and
extent of domestic behavioural modification whilst acknowledging the inherent
sovereignty of nation States. This flexibility ethos is replicated in the Kyoto
Protocol which also creates flexible implementation mechanisms that may be
utilised, at will, by the parties to the Protocol.35 Consequently, the UNFCCC and
Kyoto Protocol outline, in broad terms, the types of policies that should be
considered at a national level to implement the duty to reduce domestic
greenhouse gas emissions. However, for the most part, the international regime
leaves the method of implementation to the discretion of the parties.
34
All Annex-1 parties are able to account for national human induced land use change and forestry
activities, since 1990, in calculating their national emissions under the Kyoto Protocol. This is
limited to afforestation, reforestation and deforestation activities that have been measured as
verifiable changes in carbon stocks. Kyoto Protocol, n9, Article 3.3.
35
These flexible mechanisms include the Clean Development Mechanism, Joint Implementation and
international emissions trading.
36
Jonas Ebbesson, Compatibility of International and National Environmental Law (1996) London,
Kluwer Law International at xix.
37
Ibid, 113.
220
There are a number of provisions in the UNFCCC and Kyoto Protocol which
generally require the implementation of policies and programmes to address
climate change at a national level. First and foremost, each party must develop a
national inventory of its anthropogenic greenhouse gas emissions and removals
by sinks and must submit these to the UNFCCC Secretariat.38 Parties are also
required to formulate and regularly update national and, where appropriate,
regional programmes containing measures to mitigate climate change concerning,
inter alia, the energy, transport, industry, agriculture, forestry and waste sectors.39
In particular, developed Annex-1 countries 40 , including Australia, must adopt
national policies and take corresponding measures on the mitigation of climate
change, by limiting their anthropogenic emissions of greenhouse gases and
protecting and enhancing their greenhouse gas sinks and reservoirs.41 They must
also identify and periodically review policies and practices which encourage
activities that lead to greater levels of anthropogenic emissions of greenhouse
gases.42
All parties to the UNFCCC must also promote sustainable management, and
promote and cooperate in the conservation and enhancement, as appropriate, of
sinks and reservoirs of all greenhouse gases. 43 Critically, as a party to the
UNFCCC, Australia has agreed to take climate change considerations into
account in relevant social, economic and environmental policies and actions, and
to employ appropriate methods, including impact assessments, formulated and
determined nationally, with a view to minimising the adverse effects of measures
undertaken to mitigate or adapt to climate change. 44
38
221
In the context of the legal response to the consequences of climate change, the
fundamental role of science has been described as to provide credible
evidence that particular proposed or ongoing human activities cross some
threshold of harm, triggering precautionary action. 45 However, once a risk of
likely environmental harm has been identified, complete scientific certainty is not
required prior to a decision to restrict such actions. 46
A detailed summary of the existing scientific evidence regarding the causes and
impacts of climate change is presented in Chapter Two. For completeness, the
key findings in respect of greenhouse gases, climate change and environmental
harm are summarised below:
45
Mary O'Brien, 'Science in the Service of Good: The Precautionary Principle and Positive Goals' in
Joel A. Tickner (ed), Precaution, Environmental Science, and Preventive Public Policy (2003)
Washington, Island Press, 279 at 279.
46
David Freestone and Ellen Hey, 'Origins and Development of the Precautionary Principle' in David
Freestone and Ellen Hey (eds), The Precautionary Principle and International Law (1996) The
Netherlands, Kluwer Law International, 3 at 13.
47
IPCC, 'Climate Change 2007: The Physical Science Basis: Summary for Policy Makers,
Contribution of Working Group I to the Fourth Assessment report of the Intergovernmental Panel on
Climate Change' (IPCC Secretariat Geneva, 2007) at 2.
222
48
Ibid, 8. Very likely, in this context, refers to above 99 per cent scientific certainty.
Ibid, 4.
50
There are Federal government proposals to implement a national emissions trading system in
conjunction with a greenhouse gas emissions reporting system with trade commencing in 2010. The
trading scheme will impose liabilities on certain sectors to reduce their greenhouse gas emissions.
This trading mechanism is intended to operate in conjunction with the mosaic of existing and
emerging environmental regimes at both Federal and State levels. Australian Government, 'Media
Release: Government Announces Detailed Timetable on Emissions Trading' (Senator the Hon Penny
Wong, Minister for Climate Change and Water, PW 35/08, 17 March, 2008).
49
223
51
224
The SA EPA states that proper weight should be given to both long and short
term economic, environmental, social and equity considerations in deciding all
matters relating to environmental protection and that a precautionary approach
should be taken to the assessment of the risk of environmental harm. 56 Finally,
the objects refer to the incorporation of both the precautionary and polluter pays
principles into the exercise of decision-making functions.57
55
225
serious
environmental
harm,
material
environmental
harm and
The objectives of the Queensland Environmental Protection Act 1994 (QLD EPA)
are to protect Queenslands environment while allowing for ESD.65 There is a
general duty to avoid environmental harm and it is an offence to cause unlawful
environmental harm, that is causing serious or material environmental harm or
environmental nuisance. 66
62
226
The QLD EPA specifies that environmental harm may be caused whether the
harm is a direct or indirect result of the activity; or whether the harm results
from the activity alone or from the combined effects of the activity and other
activities or factors. 70 The language and scope of these principles is clearly
sufficiently wide to encompass the emission of greenhouse gases to the
atmosphere and the resulting impacts on both the environment and
environmental values.
Finally, it should be noted that there is also a prohibition against the release of a
prescribed contaminant into the environment.71 Although not yet a prescribed
contaminant, as gases, greenhouse gases would be treated as contaminants and
could be prescribed in the future.
Similarly, in New South Wales (NSW), harm to the environment includes the
direct or indirect alteration of the environment and includes any act or emission
that results in pollution. 72 Any air impurity, which includes gases, fulfils the
definitions of air pollution and harm. 73 There is a general duty to notify of
pollution incidents that threaten material environmental harm. 74 In addition,
possible pollution is required to be taken into account by the regulator in the
68
227
75
228
The previous
Federal governments resistance to the ratification of the Kyoto Protocol, and the
adoption of strict targets for the reduction of emissions, also appear to have
played a key role in this disinclination.
83
Resource Management Act 1991 (NZ), section 7. New Zealand is a party to the UNFCCC and the
Kyoto Protocol.
84
Climate Change Bill [HL] 2007-2008 (UK), section 1(1). The Bill was introduced into the House of
Lords on 14 November 2007 and completed its passage through the House of Lords on 31 March
2008. It received its second reading in the House of Commons on 9 June 2008. It is expected to
receive Royal Assent in 2008. DEFRA, UK Legislation: taking the Climate Change Bill forwardprogress (18 February 2008)
http://www.defra.gov.uk/Environment/climatechange/uk/legislation/index.htm at 15 June 2008.
229
In the United States of America (US), a collection of states and cities brought a
suit against the EPA for its failure to regulate carbon dioxide emissions under the
US Clean Air Act. The Clean Air Act requires the EPA to set emission standards
for:
any air pollutant from any class of motor vehicles.. which..cause, or contribute to,
air pollution which may reasonably be anticipated to endanger public health or
welfare.85
After referring to the above provisions, the US Supreme Court found that
greenhouse gas emissions did fall within this definition and commented:
the Clean Air Acts sweeping definition of air pollutant includes any air pollution
agent. On its face, the definition embraces all airborne compounds of whatever
stripe, and underscores that intent through the repeated use of the word any.
Carbon dioxide, methane, nitrous oxide, and hydrofluorocarbons are without a
doubt physical [and] chemical . . . substance[s] which [are] emitted into . . . the
ambient air. The statute is unambiguous.(emphasis added)87
It may only be a matter of time before similar judicial actions are attempted
against environmental regulators in Australia and, in the right judicial setting, a
similar legal interpretation might be applied. However, there will be greater
difficulties in demonstrating that such specific statutory duties to address
85
Clean Air Act (CAA) 42 USC s/s 7401 et seq. (1970), section 202(a)(1) (42 U.S.C. 7521).
CAA, ibid, section 7602(g).
87
Massachusetts v Environmental Protection Agency 549 US (2007) (Supreme Court of the United
States, decided 2 April 2007) at 26.
86
230
emissions exist, and are required to be exercised, owing to the less prescriptive
wording generally found within existing Australian environmental legislation.
The role of
88
Gerry Bates, Environmental Law in Australia (6 ed, 2006) Chatswood, Lexis Nexis Butterworths at
313.
89
Ibid.
90
Ibid, 316.
231
A proper EIS will address the cumulative environmental impacts resulting from
the proposed project. 92 A proper EIS will consider the potential impacts from the
likely greenhouse gas emissions of the proposed activity. The EIA must do more
than simply play lip service to the fact that some emissions will result or that
there is some remote possibility of climate change occurring.
In order to
properly fulfil its function, the EIA must assess the long-term, cumulative
impacts on the environment from the greenhouse gas emissions of the proposed
activity.93
The fact that there may be a lack of scientific certainty regarding the future
impacts of climate change cannot be used as an excuse for not properly
considering such impacts as part of the assessment process:96
91
Bentley v BGP Properties Pty Ltd (2006) 145 LGERA 234, Justice Preston at [68].
BT Goldsmith Planning Services Pty Ltd v Blacktown City Council [2005] NSWLEC 210 at [90].
93
Gray v Minister for Planning and Others (2006) 152 LGERA 258 at 297.
94
Minister for Environment and Heritage v Queensland Conservation Council [2004] FCAFC 190.
95
Gray v Minister for Planning and Others (2006) 152 LGERA 258 at 296. For a discussion of the
depth of that consideration see David Farrier, 'The Limits of Judicial Review: Anvil Hill in the Land
and Environment Court' in Tim Bonyhady and Peter Christoff (eds), Climate Law in Australia (2007)
Sydney, The Federation Press, 189 at 196.
96
Gray v Minister for Planning and Others (2006) 152 LGERA 258 at 297.
92
232
scientific uncertainty is not the same as low probabilityeven when timing and
magnitude of an event or effect is uncertain, there may be a strong scientific basis
for concern about the impact.97
Consequently, an EIA should assess the likely impacts from the emission of
greenhouse including the likelihood of localised environment harm from changes
in the global climate as a result of the increase in cumulative global emissions.
The fact that significant emissions will result from the project will not necessarily
lead to rejection of the proposal. The likely significant environmental impacts
from those emissions must be balanced against all other economic, social and
environmental factors.
Statement (EIS) should assist the decision maker in their consideration of: the
likely environmental impacts of the project; whether to approve the project; and
whether conditions should be attached to that approval. 98 Consequently, the EIA
process has the potential to play a critical role in enabling authorities to evaluate
and balance the risks of climate change impacts from emissions and the
implications of possible conditions to mitigate or offset those emissions.
233
In SA, where a statutory emissions reduction target has been adopted, the
Development Act 1993 requires development to be assessed against the
provisions of the appropriate development plan and building rules.
100
99
234
undertaken for these projects. 104 Specific SA development plans also make
reference to greenhouse gases. For example, the City of Adelaide Development
Plan contains principles of development control that require all new residential
and office developments and extensions/refurbishments to be designed to
minimise energy consumption and limit greenhouse gas emissions.
105
Development must also comply with the regulations which may be made in
relation to building sustainability, energy efficiency requirements and reductions
of greenhouse gases.106
The objective of the Western Australia (WA) Planning and Development Act
2005 is to promote the sustainable use and development of land in the state.107 In
the preparation of a State Planning Policy the Commission must have regard to,
inter alia, conservation of natural or cultural resources for social, economic,
environmental, ecological and scientific purposes and amenity, design and
environment.108 The EPA may request an environmental review of a proposed
scheme and has the power to issue instructions to the Commissioner regarding
the required process of that review. 109 Significant proposals for development may
also be referred to the EPA for assessment. 110 A significant proposal is defined as
a proposal likely, if implemented, to have a significant effect on the
environment.111 It is a matter for the EPA to determine the form, content, timing
and procedure of any such environmental review. 112
104
105
235
In NSW, where consent is required for development, the consent authority must
have regard to the likely impacts of that development, including environmental
impacts on both the natural and built environments, and social and economic
impacts in the locality.113 Development is defined to include, inter alia, the use
of land and the carrying out of work. 114 In considering whether there will be
significant effects on threatened species, populations or ecological communities
the consent authority must turn its mind to a range of factors including impacts to
critical habitat and disruption of life cycle of species.115 Where development is to
be carried out by a public authority, the determining authority has a duty to
examine and take into account to the fullest extent possible all matters affecting
or likely to affect the environment by reason of that activity. 116 Accordingly,
these provisions clearly require the authority to consider the potential impacts
from the use of the land and the carrying out of works, including the emission of
greenhouse gases, and the resulting effects on the environment. A formal EIA
must be carried out if the development is designated or the activity is likely to
significantly affect the environment.117 If it is likely to significantly affect an
endangered species or ecological community, a Species Impact Statement (SIS)
is also required. 118
113
114
236
122
237
(iv) seek to provide for equity between present and future generations.128
128
238
67 NSWLR 256; 146 LGERA 10 at [123]; Carstens v Pittwater Council (1999) 111 LGERA 1 at 25;
Gray v Minister for Planning (2006) 152 LGERA 258 at [42]-[44].
239
The Courts have distinguished between causal links and mere speculation of
adverse impacts. As commented in the Nathan Dams case:
a causal relationship between an action and a presumptive impact was capable of
almost infinite extension Fitzgerald v Penn (1954) 91 CLR 268 at 277....infinite
extension of the requisite causal link should be avoided by excluding possible
impacts that were merely speculative.131
As early as 1994, the Courts seemed ready to accept a demonstrated causal link
between greenhouse gas emissions and potential environmental harm:
the evidence establishes that the project will emit CO2, which is a greenhouse gas,
and will contribute to the enhanced greenhouse effect, a matter of national and
international concern.132
131
Minister for the Environment and Heritage v Queensland Conservation Council Inc (2004) 134
LGERA 272; [2004] FCAFC (Nathan Dams Case) at [45].
132
Greenpeace Australia Ltd v Redbank Power Company Pty Ltd and Singleton Council (1994) 86
LGERA 143 at 153.
240
For example, in 2004, the Victorian Civil and Administrative Tribunal (VCAT)
considered a planning scheme amendment that facilitated mining coal fields to
supply coal to the adjacent electricity generation facility (the Hazelwood case).
The terms of reference for the established panel of inquiry included a direction
that the panel was not to refer to greenhouse gas emissions from the electricity
generation facility as these issues were to be addressed through a separate
process. 133 The EES under the Environmental Effects Act 1978 (Vic) and the
Planning and Environment Act 1987 (Vic) did not address the production of
greenhouse gases from the burning of the coal. 134 Public submissions were made
in relation to the emission of greenhouse gases and the panel was legally required
to consider all submissions but had been specifically prohibited from doing so.135
The failure to consider the emissions of the plant was appealed. VCAT held that
these were relevant submissions and were required to be considered by the panel
even if they related to an indirect effect of the amendment.136 VCAT considered
the potential impacts from the energy generated as a result of the planning
scheme amendment and described the test as follows:
whether the effect may flow from the approval of the amendment; and if so,
whether, having regard to the probability of the effect and the consequences of the
effect (if it occurs), the effect is significant in the context of the amendment.137
133
Charles Berger, 'Hazelwood: A new lease on life for a greenhouse dinosaur' in Tim Bonyhady and
Peter Christoff (eds), Climate Law in Australia (2007) Sydney, The Federation Press, 161 at 165. The
panel was established under the Environmental Effects Act 1978 (Vic), section 9.
134
Australian Conservation Foundation v Latrobe City Council (2004) 140 LGERA 100 at 101.
135
Charles Berger, 'Hazelwood: A new lease on life for a greenhouse dinosaur' in Tim Bonyhady and
Peter Christoff (eds), Climate Law in Australia (2007) Sydney, The Federation Press, 161 at 165.
136
Australian Conservation Foundation v Latrobe City Council (2004) 140 LGERA 100 Justice
Morris (The Hazelwood Case) at 109, 110.
137
Ibid, 109.
241
This case has been described as a landmark decision owing to the fact that:
for the first time, an Australian adjudicative body had accepted a clear chain of
causation from a proposed activity (coal mining) through to foreseeable
downstream consequences (greenhouse gas emissions from combustion of the coal)
to the contribution to climate change caused by those emissions.140
138
Australian Conservation Foundation v Latrobe City Council (2004) 140 LGERA 100 at 109.
Ibid, 110.
140
Although in the end..the legal victory did not significantly alter the governments approach,
Charles Berger, 'Hazelwood: A new lease on life for a greenhouse dinosaur' in Tim Bonyhady and
Peter Christoff (eds), Climate Law in Australia (2007) Sydney, The Federation Press, 161 at 170.
141
Ibid, 168.
142
Jacqueline Peel, 'The Role of Climate Change Litigation in Australia's Response to Global
Warming' (2007) 24 Environmental and Planning Law Journal 90 at 102.
139
242
143
243
While it may be true that regulating motor-vehicle emissions will not be itself
reverse global warming, it by no means follows that we lack jurisdiction to decide
whether EPA has a duty to take steps to slow or reduce itA reduction in domestic
emissions would slow the pace of global emissions increases, no matter what
happens elsewhere.146
In the decision of Gray v The Minister for Planning, the Court declared invalid
decisions under the NSW Environmental Planning and Assessment Act by
Director-General in relation to a proposal to build a large coal mine known as the
Anvil Hill Project.147 The project was predicted to mine up to 10.5 million tonnes
of coal per annum. 148 The Director Generals requirements for the content of the
environmental assessment of the project included that the proponent address
[a]ir quality including a detailed greenhouse gas assessment.
149
The
assessment addressed only the direct emissions from the project (scope 1
emissions) and indirect emissions from the use of electricity (scope 2
emissions).150 Emissions from third party burning of the coal were not assessed
(scope 3 emissions).151 The environmental assessment was deemed adequate by
the Director-General and placed on public exhibition. A judicial challenge was
then commenced.
The Court held that the Director-General was legally bound to consider the
impacts of greenhouse gas emissions of the downstream burning of coal by third
parties in the environmental assessment of new coal mines (scope 3 emissions).
The Court based that finding on the need to take into account the fundamental
146
Ibid, 22-23.
Gray v Minister for Planning and Others [2006] NSWLEC 720; (2006) 152 LGERA 258, Justice
Pain.
148
Ibid, 266.
149
Ibid, 270.
150
Ibid, 271-272.
151
Ibid.
147
244
........
I consider there is a sufficiently proximate link between the mining of a very
substantial reserve of thermal coal in NSW, the only purpose of which is for use as
fuel in power stations, and the emission of GHG which contribute to climate
change/global warming, which is impacting now and likely to continue to do so on
the Australian and consequently NSW environment, to require assessment of that
GHG contribution of the coal when burnt in an environmental assessment under Pt
3A.154
In addition, the Court found that the potential for future regulation of emissions
was no reason to exclude those emissions from the scope of an environmental
assessment:
it is not appropriate to limit the scope of the environmental assessment on the basis
that GHG emissions may or may not be subject to regulation in the future whether
152
Ibid, 293-297. Such requirements were based on the need to take into account the public interest
under section 79C of the Environmental Planning and Assessment Act 1979 (NSW).
153
Ibid, 287.
154
Ibid, 288.
245
in NSW or overseas. The fact that it may be difficult to quantify an impact with
precision does not mean that it should not be done.155
the potential local economic and social benefits from the approval
of the projects; and
the potential local economic and social impacts from the refusal of
the project or from the imposition of conditions requiring the
reduction or offset of some or all of the emissions of the project.
155
Ibid, 297.
246
The fact that a project will result in an amount of greenhouse gas emissions is but
one planning and environment factor to be balanced in the decision-making
process.157 As commented in the Redbank Power Case:
the application of the precautionary principle dictates that a cautious approach
should be adopted in evaluating the various relevant factors in determining whether
or not to grant consent; it does not require that the greenhouse issue should
outweigh all other issues.158
In the Redbank Power Case, the Court had accepted that there was a causal link
between the project, emissions and climatic impacts yet commented that:
whether [power stations] should be prohibited is, of course, a matter for government
policy and it is not for the Court to impose such a prohibition. It is for State and
national governments to take into account the competing economic and
environmental issues raised by the greenhouse effect and to set policy in light of
those issues.159
156
247
including, one assumes, banning new coal mines in Australia. This case is far
removed from the factual situation in Minister for Environment and Heritage v
Queensland Conservation Council Inc (2004) 139 FCR 24.160
In 2005, Xstrata Coal Queensland Pty Ltd (Xstrata) applied for the extension of
its mining lease and an associated amendment to the environmental authorisation
for the mine under the Mineral Resources Act 1989 (Qld) (MRA) and the
Environmental Protection Act 1994 (Qld) (EPA) for the mining project at Suttor
Creek in Queensland. Those applications were objected to by the Queensland
Conservation Council (QCC).
160
248
emissions from the mining, transport and use of the coal be avoided, offset or
reduced. 161 QCC later sought to amend that condition to 100 per cent of
emissions from the mining project and 10 per cent of emissions from the
transport and use of the coal. 162
QCC submitted to the Tribunal that the mine would still be economically
viable if it paid for offsets for 10 per cent of its greenhouse gas emissions.
This was described by QCC as follows:
this makes the cost of offsetting the whole of the mine's direct emissions and
10 per cent of its indirect emissions $55-$144 million..well within the margin
of economic viability of the mine and still allowing Xstrata a profit of about $1
billion for a mine costing about $2.2 billion to operate.165
However, this amendment was refused by the Tribunal on the basis that it
would substantially change the case that Xstrata had to meet and QCC was
not permitted to make submissions outside of its particularised objections. 166
161
Queensland Conservation Council Inc v Xstrata Coal Queensland P/L & Ors [2007] QCA 338,
Justice McMurdo (President) at [5].
162
Ibid, [6].
163
Nicholas Stern The Economics of Climate Change: The Stern Review (Cabinet Office, HM
Treasury 2006).
164
Re Xstrata Coal Queensland Pty Ltd & Ors [2007] QLRT 33 at [11].
165
Toby Hutcheon, 'Racing to the Aid of King Coal', The Courier Mail (Brisbane), 16 October 2007,
Perspectives http://www.news.com.au/couriermail/story/0,23739,22596694-27197,00.html at 15 June
2008.
166
Queensland Conservation Council Inc v Xstrata Coal Queensland P/L & Ors [2007] QCA 338 at
[7].
249
167
Land and Resources Tribunal Act 1999 (Qld), ss 49(1); 49(2)(b); Mineral Resources Act 1989
(Qld) section 268(2).
168
Submissions filed by QCC 9 February 2007.
250
169
QCC, by letter dated 14 February 2007. Queensland Conservation Council Inc v Xstrata Coal
Queensland P/L & Ors [2007] QCA 338 at [10], [12].
170
Re Xstrata Coal Queensland Pty Ltd & Ors [2007] QLRT 33 at [22].
171
Ibid, [21].
251
In reaching his decision, the President critiqued the findings of the IPCC
regarding global warming and the global risks of climate change and made the
following surprising comment:
with all respect, a temperature increase of only 0.45C over 55 years seems a
surprisingly low figure upon which to base the IPCCs concerns about its inducing
many serious changes in the global climate system during the 21st Century.172
The Tribunal thereby made orders recommending to the Minister for Mines
and Energy that the application for additional surface area, and the related
environmental authority, be granted without any of the conditions sought by
QCC. QCC appealed against those orders.
172
Ibid, [18].
Ibid, [23].
174
Queensland Conservation Council Inc v Xstrata Coal Queensland P/L & Ors [2007] QCA 338 at
[37]-[38].
173
252
the competing expert evidence presented by Xstrata on the one hand and
QCC on the other at the hearing did not put in issue that global warming
and climate change were real and were caused by emissions of greenhouse
gases linked to human activity, especially the burning of fossil fuels.175
The Court of Appeal noted that the Tribunals decision that it was not
satisfied of any demonstrated causal link between Xstrata's greenhouse gas
emissions and any discernible harm appeared to have been significantly
influenced by the Carter-Byatt critique of the Stern Review, a critique which
was raised in neither Xstrata's nor the EPA's case and was contrary to their
positions taken at the hearing. 177 The Court of Appeal held that, in the
circumstances, this amounted to a denial of natural justice to QCC:178
merely informing the parties that the Tribunal had become aware of
documents which may be relevant to its decision did not satisfy the
Tribunal's obligation to afford the parties procedural fairness by giving
them a real opportunity to present information or argument on a matter not
already obvious but in fact regarded as important by the decision-maker.179
175
Ibid, [36].
Ibid, [41].
177
Ibid, [44].
178
Ibid, [47].
179
Ibid, [46].
176
253
The obligation to protect the right to natural justice was espoused by the
Court of Appeal as follows:
the statutory scheme under which the Tribunal operated in this case
demonstrated a clear legislative intention to have applications heard and
determined expeditiously but according to principles of natural justice. It is
regrettable that this has not resulted in the present case which must now be
re-heard. QCC is, however, entitled to have its objections heard and
determined according to law. 180
The Court of Appeal further held that QCC should be allowed to amend the
condition sought requiring that 100 per cent of emissions be avoided,
reduced or offset to a requirement of only 10 per cent as:
the proposed amendment to the particulars involved a question of degree
and amount; if anything it narrowed rather than widened, but certainly did
not alter, the issue for determination between the parties.181
The orders of the Land and Resources Tribunal were set aside and the matter
remitted to the Land Court for determination according to law.182
180
Ibid, [56].
Ibid, [51].
182
Following the transfer of jurisdiction from the Land and Resources Tribunal to the Queensland
Land Court, section 91 Land Court Act 2000 (Qld) and section 87 Land and Resources Tribunal Act
1999(Qld) as amended by the Land Court and Other Legislation Amendment Act 2007 (Qld).
181
254
The second reading speech of the validating bill indicates the governments
concerns that the decisions of the Governor in Council and the Minister for
Environment, to issue the mining lease and the environmental authority,
could be declared invalid:
this means that the future of the new mining operations...and the future of
everyone employed there is literally hanging by a thread. This thread could
be cut at any moment if someone successfully took this matter to court.183
The purpose of the Mining and Other Legislation Amendment Bill 2007 (Qld)
(MOLA) was to validate the grant of the mining lease under the MRA and
the environmental authority under the EPA in order to remove any
uncertainty about the validity of those grants and to secure the future of the
mining operations. 184 This was implemented through the insertion of the
following new provisions:
Section 418AA (2) Mineral Resources Act 1989:
The application made under section 275 to include additional surface area No. 2
in the mining lease is taken to have been validly granted on 29 March 2007.
Section 579A (2) Environmental Protection Act 1994:
The Ministers decision made on 8 March 2007 to grant the application is taken
to have been validly made under chapter 5.185
The MRA and the EPA require a number of factors to be taken into account,
in the making of decisions whether to grant the mining lease and an
environmental authority, including any adverse environmental impacts,
principles of ESD and the public interest. Yet, in enacting this validating
legislation, the Parliament was not bound to consider any such factors. The
183
Minister for Mines and Energy, Second Reading Speech: Mining and Other Legislation
Amendment Bill (16 October 2007) at 3591.
184
Explanatory Notes, Mining and Other Legislation Amendment Bill 2007 (Qld).
185
Mining and Other Legislation Amendment Act 2007 (Qld).
255
It also noted that a national emissions trading scheme was the appropriate
way to manage emissions rather than an ad hoc approach which singles out
particular companies.
187
186
Premier Anna Bligh and Minister for Mines and Energy Joint Statement: Government to Legislate
to Ensure Coal Mines Future (12 October 2007)
http://statements.cabinet.qld.gov.au/MMS/StatementDisplaySingle.aspx?id=54462 at 15 June 2008.
187
Ibid.
188
Explanatory Notes, Mining and Other Legislation Amendment Bill 2007 (Qld), Consistency with
Fundamental Legislative Principles.
256
It is mere speculation to consider whether the Land Court would have made
the same recommendation as the Land and Resources Tribunal. The
development may or may not have been approved. Either way, the Land
Court would have been aware of the Court of Appeals direction to ensure
natural justice which is one of the essential elements of the rule of law.
Judicial
appeals are a costly, cumbersome and uncertain tool for regulating emissions in
Australia particularly given the lack of consistency across state environmental
and planning regimes. Moreover, in the controversial area of climate change, the
outcome is highly dependent upon the opinion of the presiding judge regarding
the existence of climate change and the economic implications of regulating
emissions. Accordingly:
litigation for an environmental cause is a strategy with inherent drawbacks and
difficulties include its expense, the need to identify appropriate test cases, and
persuading judges of the validity of climate friendly interpretations of
environmental legislation that will often be deeply unpopular with government and
industry.189
189
257
the Court supports the status quo and fails to require the proper application of the
law in light of the evidence of the likely harmful impacts of emissions.
258
259
(a)
(b)
(c)
(ca)
....
(e)
The EPBC Act goes beyond a mere referral to the principles of ESD and instead
specifies the components of the principle in the following terms:
(a)
(b)
(c)
(d)
190
Environment Protection and Biodiversity Conservation Act 1999 (Cth) (hereafter the EPBC Act),
section 3(1).
191
EPBC Act, section 3(2).
192
EPBC Act, section 3A.
260
Accordingly, the text of the EPBC Act is clear in stating that it is intended to
conserve and protect the Australian environment and that lack of full scientific
certainty should not be used as a reason for not taking steps to prevent
environmental degradation in Australia. Actions which have or are likely to have
a significant impact on matters of national environmental significance are
controlled actions including actions that may have significant impact on:
Declared world heritage properties include Kakadu National Park in the Northern
Territory and the Great Barrier Reef in Queensland both of which are on the
World Heritage List. Declared Ramsar wetlands are sites recognised under the
international Ramsar Convention as being of international significance. 194
The Australian Courts have determined that, in considering the impacts of these
activities, there is an obligation to consider not only the direct impacts from the
construction of the project but also the indirect impacts flowing from the project
where they are sufficiently close to the action to allow it to be said, without
straining the language, that they are, or would be, the consequences of the action
on the protected matter.195 The test of significance to be applied to these impacts
is whether the impact is important, notable or of consequence having regard to
its context or intensity.196
193
Also actions in Commonwealth marine areas and on Commonwealth land that may have a
significant impact on the environment. EPBC Act, section 24.
194
Convention on Wetlands of International Importance especially as Waterfowl Habitat (the Ramsar
Convention) (adopted 2 February 1971, Ramsar, Iran)(entry into force 1975). Australia has 63 such
declared Ramsar wetlands, Australian Government, Protecting Australias Ramsar Wetlands (2002,
Canberra) http://www.environment.gov.au/epbc/publications/ramsar.html viewed 15 June 2008.
195
Minister for the Environment and Heritage v Queensland Conservation Council Inc (2004) 134
LGERA 272; [2004] FCAFC 190 (Nathan Dams Case) at [53].
196
Booth v Bosworth (2001) 114 FCR 39 at 64, Justice Branson.
261
The legislation sets out an array of criteria to be met in order for indirect
secondary actions to meet the definition of impact including the reasonable
contemplation of the parties and the foreseeability of the outcome.198
197
262
204
263
Climate Change is accepted as a major threat to coral reefs worldwide including the
[Great Barrier Reef]. It is expected to affect coral reefs mainly through changes of
three variables: increases in sea surface temperature causing coral bleaching;
decreases in calcification rates, slowing coral growth due to changing seawater
chemistry; and increases in sea level. 211
According to the IPCC, there is a very high risk that a significant loss of
biodiversity will occur by 2020 in ecologically rich sites, including the Great
Barrier Reef, Queensland Wet Tropics and Kakadu National Park, as a result of
climate change. 212 The IPCC has identified a clear link between temperature
increases and greenhouse gas emissions.
213
In light of the above, it would seem both likely and reasonable that major projects
with significant emissions would, as a minimum, be referred to the Minister and
assessed as controlled actions under Part 8 of the EPBC Act. However, this has
not occurred and the Australian government has resisted the view that these
emissions are likely to harm environmental values in Australia. For example, the
Bowen Basin case highlighted the Commonwealth Governments reluctance to
assess the climate change impacts of large new coal mines and the need for
reform of the EPBC Act.215 The case related to two referrals under the EPBC Act
for the development of new coal mines (the Isaac Plains Project and the Sonoma
Project). Both referrals submitted that the mines did not impact on matters on
national environmental significance and were not controlled actions under the
211
Chris McGrath, 'Setting Climate Change Targets to Protect the Great Barrier Reef' (2007) 24
Environmental and Planning Law Journal 182 at 185.
212
IPCC, 'Climate Change 2007: Impacts, Adaptation and Vulnerability: Summary for Policy Makers,
Contribution of Working Group II to the Fourth Assessment Report of the Intergovernmental Panel
on Climate Change' (IPCC Secretariat, 2007) at 13.
213
IPCC Working Group I, n47, 8.
214
IPCC, Working Group II, n212, 9.
215
Kirsty Ruddock, 'The Bowen Basin Coal Mines Case: Climate Law in the Federal Court' in Tim
Bonyhady and Peter Christoff (eds), Climate Law in Australia (2007) Sydney, The Federation Press,
173 at 173.
264
EPBC Act.216 The Isaac Plains Project was expected to involve the mining of an
estimated 10 million tonnes of coal over the nine year life of the project.217 The
Sonoma Project was expected to produce 30 million tonnes of product coal over
the fifteen year life of the mine.218
The Ministers delegates decided that these mines would not have significant
impacts on matters of national environmental significance. An officer in the
department considered the Isaac Plains proposal and commented that the nature
of induced climate change from the referred coal mining operation, and impacts
on the world heritage values, are speculative.219 In reaching a decision that the
proposed Isaac Plains Project was not a controlled action, the delegate added:
I regard the likelihood of significant impacts on [national environmental
significance] arising from the marginal addition of greenhouse gases to be
extremely small, in addition to speculative.220
The delegate determined that the proposed Sonoma Project was not a controlled
action and noted that any indirect impacts on World Heritage Areas were
speculative.222
216
Ibid, 174.
Wildlife Preservation Society of Queensland (WPSQ) Proserpine/Whitsunday Branch Inc v
Minister for the Environment and Heritage (2006) 232 ALR 510 at [10].
218
Kirsty Ruddock, n213, 174.
219
Wildlife Preservation Society of Queensland (WPSQ) Proserpine/Whitsunday Branch Inc v
Minister for the Environment and Heritage (2006) 232 ALR 510 at [17].
220
Ibid, [18].
221
Ibid, [29].
222
Ibid, [30].
217
265
The Court rejected the submissions of the applicants that the delegate had failed
to consider properly the greenhouse gases generated in the extraction,
transportation and burning of coal and that the cumulative nature of greenhouse
gas emissions should be taken into account.223 In relation to the causal evidence
before it, the Court remarked:
I am far from satisfied that the burning of coal at some unidentified place in the
world, the production of greenhouse gases from such combustion, its contribution
towards global warming and the impact of global warming upon a protected matter,
can be so described. there has been no suggestion that the mining, transportation
or burning of coal from either proposed mine would directly affect any such
protected matter, nor was there any attempt to identify the extent (if any) to which
emissions from such mining, transportation and burning might aggravate the
greenhouse gas problem.224
The Court also rejected the applicants submission that the principles of ESD
should be incorporated as part of the evaluation process and observed:
it is not clear that this principle can be applied to the decision-making process
prescribed by s75. In any event it has not been established that either project will
cause serious or irreversible environmental damage. 225
This regulatory trend continued when, in February 2007, the Minister determined
that the proposed Anvil Hill coal mine was not a controlled action under the
EPBC Act. The project involved an open cut coal mine and ancillary facilities
estimated to mine up to 10.5 million tonnes of coal per annum for domestic and
export markets. 226 The delegates reasons for decision were stated as follows:
I found that, while it is clear that, at a global level, there is a relationship between
the amount of carbon dioxide in the atmosphere and warming of the atmosphere, the
climate system is complex and the processes linking specific additional greenhouse
223
Ibid, [55],[56].
Ibid, [72].
225
Ibid, [54].
226
Anvil Hill Project Watch Association Inc v Minister for Environment and Water Resources [2007]
FCA 1480 (20 September 2007, Justice Stone) at [17].
224
266
gas emissions to potential impacts on matters protected under Part 3 of the EPBC
Act are uncertain and conjectural...in light of the relatively small contribution of the
proposed action to the amount and concentration of greenhouse gases in the
atmosphere, I found that a possible link between... gases..from the proposed action
and a measurable or identifiable increase in global atmospheric temperature...is not
likely to be identifiable.227
The decision was challenged in the Federal Court of Australia. Submissions for
the applicant placed heavy reliance on the overriding objectives of the EPBC Act.
Judge Stone cited with approval the decision of the Court in the Bowen Basin
Case in the following terms:
his Honour noted that the decision-maker in that matter had accepted the possibility
that the coal might be burn, thereby producing additional greenhouse gases which
might cause climate change and said that The point at which he disagreed with the
applicant was as to the likelihood of any adverse impact upon a protected matter
and the extent thereof. In my view that is precisely the position here.
.....the relatively small contribution of the proposed emissions to total global
emissions could not be seen as having a significant impact. That is a conclusion that
was open to her on the findings she had made.228
Consequently, despite the strong language of the EPBC Act, in its practical
application the EPBC Act suffers from the same flaws as its state counterparts
and, once again, illustrates the dichotomy between the law in theory and its
practical application to the risks of unfettered greenhouse gas emissions. Despite
the judicial contemplations outlined above, it seems clear that Australian projects
with significant levels of greenhouse gas emissions would be likely to have a
significant impact on matters of national environmental significance under Part
3 of the EPBC Act. Under the current definition of impact, the greenhouse gas
emissions must be considered to be a substantial cause of the climate change
227
267
event. 229 This poses some difficulty for both determining authorities and the
judiciary as some level of scientific uncertainty remains regarding that causal link
between emissions and resulting harm. 230
It is those key
Since the inception of the EPBC Act there have been numerous proposals to
include a specific trigger for climate change impacts within the regime. 231 Most
recently, the current Prime Minister has indicated an intention to reform the
EPBC Act to require an assessment of the climate change impacts of all new
major projects in Australia as part of the environmental assessment process.232
However, the effectiveness of any climate trigger will be wholly dependent on
the quality of determinations of the Minister in considering the environmental
impacts and imposing stringent conditions requiring the reduction or offset of the
emissions of these projects.
parallel with, not in place of, the regulation of emissions under any national
emissions trading scheme. In the absence of these restrictions, the trigger is
likely to be nothing more than legislative decoration. 233 Effectively addressing
greenhouse gas emissions in Australia requires not merely formative reforms but
also critical changes to the substantive effects of the law in practice.
229
230
268
269
Thus far, this Chapter has considered the role of environmental regulation in
minimising greenhouse gases to avoid the harmful environmental and social
impacts of climate change. However, some adverse impacts of climate change
are now inevitable. The historic levels of greenhouse gas emissions, coupled
with the inertia of the climate system, means that any emission reductions that
are achieved may now be too late to prevent the occurrence of all adverse
climatic changes.234
As noted by the IPCC:
past emissions are estimated to involve some unavoidable warming (about a further
0.6C by the end of the century relative to 1980-1999) even if atmospheric
greenhouse gas concentrations remain at 2000 levels..There are some impacts for
which adaptation is the only available and appropriate response.235
What this means, in real, practical terms, is that some level of adaptive behaviour
is necessary for modern society even if we are successful in meeting the most
challenging of the IPCC stabilisation scenarios.236 The legal community is only
just beginning to consider the full suite of appropriate measures that will be
required to adapt to those predicted impacts. The role of law in facilitating this
adaptation is multi-faceted and includes both anticipatory and reactive functions
such as urban planning and development consent functions, access to insurance,
disaster relief and compensation programs to respond, and promote resilience, to
the impacts of climate change. As a minimum, this will include accommodations
within planning regimes and conditions of consent to deter maladaptive
234
IPCC, WMO and UNEP, 'Climate Change: The IPCC Scientific Assessment, Report Prepared for
Intergovernmental Panel on Climate Change by Working Group I' (Cambridge University Press, 1990)
at xi. Mohan Munasinghe and Rob Swart, Primer on Climate Change and Sustainable Development:
Facts, Policy Analysis, and Applications (2005) Cambridge, Cambridge University Press at 172.
235
IPCC, 'Climate Change 2007: The Synthesis Report: Summary for Policy Makers, Fourth
Assessment Report of the Intergovernmental Panel on Climate Change' (IPCC Secretariat, 2007) at 18.
236
Ibid, 20.
270
Once again, the climate change regime is silent on the particular principles that
should operate to facilitate such adaptation. Adaptation has been described as
the adjustment in human and natural systems in response to climate change
stresses and their effects, which moderates damage, and helps to exploit
opportunities for benefit. 238
The IPCC has provided some initial guidance to nation parties on the types of
adaptive strategies that need to be implemented across the globe. 239 However,
there is vast uncertainty as to how much, and what adaptation is needed to
237
UNFCCC, n5, Article 4(1)(e). The Kyoto Protocol, n9, contains similar obligations and establishes
an adaptation fund for vulnerable developing countries using the share of proceeds from the Clean
Development Mechanism (CDM).
238
Mohan Munasinghe and Rob Swart, Primer on Climate Change and Sustainable Development:
Facts, Policy Analysis, and Applications (2005) Cambridge, Cambridge University Press at 185.
239
IPCC, Working Group II, n212.
271
minimise the adverse impacts of climate change. Mitigation and adaptation are
interconnected. The nature and scale of adaptation will need to be continually reevaluated and adjusted in light of the success of global initiatives to mitigate
greenhouse gas emissions, or otherwise, and changes in the scientific predictions.
Moreover effective adaptation measures are highly dependent on specific,
geographical and climate risk factors as well as regional institutional, political
and financial constraints: 240
the array of potential adaptive responses available to human societies is very large,
ranging from purely technological (e.g.,sea defences), through behavioural (e.g.,
altered food and recreational choices), to managerial (e.g., altered farm practices)
and to policy (e.g., planning regulations).241
The IPCC predicts that the specific climatic impacts experienced within Australia
will include:
increased risks from sea level rise and increases in the severity and
frequency of storms and coastal flooding due to ongoing coastal
development and population growth; and
240
Ibid, 19.
Ibid.
242
IPCC, 'Climate Change 2007' , n212, 13. IPCC, 'Climate Change 2007: Impacts, Adaptation and
Vulnerability, Contribution of Working Group II to the Fourth Assessment Report of the
Intergovernmental Panel on Climate Change' (IPCC Secretariat, 2007) at 509.
241
272
adaptation
options........Indigenous
communities
have
low
adaptive
It can be said with some certainty that adapting to the impacts of climate change
goes hand in hand with improved levels of environmental sustainability. The
IPCC has concluded that the promotion of sustainable development could reduce
vulnerability to climate change by enhancing adaptive capacity and increasing
resilience.244 Accordingly, there is an emerging parallel role for the Australian
legal system in promoting sustainability and guiding adaptation to the likely
future effects of climate change. This requires an interventionist approach, on
the part of global, regional and local authorities, to promote adaptation and
address the regulatory issues associated with the increased incidences of floods,
storms, loss of food production, unreliability of energy supplies, rising sea levels
and failing infrastructure.
243
IPCC, 'Climate Change 2007: Impacts, Adaptation and Vulnerability, Contribution of Working
Group II to the Fourth Assessment Report of the Intergovernmental Panel on Climate Change' (IPCC
Secretariat, 2007) at 509.
244
Ibid, 20.
273
The adaptation strategy for Byron Bay in the State of NSW is illustrative of the
tension that can result where private landowners are prohibited from taking
actions to adapt to rising sea-levels and protect their properties.
In making
245
COAG, National Climate Change Adaptation Framework (COAG, 13 April 2007) at 26,
www.coag.gov.au/meetings/130407/docs/national_climate_change_adaption_framework.pdf at 15
June 2008
246
CSIRO, 'Climate Change and Australia's Coastal Communities' (CSIRO, 2002).
247
IPCC, Working Group II, n212, 9.
248
Jan McDonald, 'The Adaptation Imperative: Managing the Legal Risks of Climate Change
Impacts' in Tim Bonyhady and Peter Christoff (eds), Climate Law in Australia (2007) Sydney, The
Federation Press, 124 at 128. See, for example, SA Coastal Erosion, Flooding and Sea Level Rise
Standards and Protection Policy www.environment.sa.gov.au at 15 June 2008 and the South-east
Queensland Regional Coastal Management Plan 2006 (Qld).
249
North Coast Regional Environmental Plan 1988 (NSW), cl. 32B(2).
250
NSW Government, NSW Coastal Policy 1997: a sustainable future for the New South Wales
Coast (NSW, 1997), NSW Coastal Policy 1997 Goals 2.1, 2.2.
274
Coastal zone management plans may be prepared by local authorities for their
respective coastal zones. 253
Under the Byron Local Environmental Plan 1988, the objectives of land zoned
coastal land include the prevention of development which would adversely
affect, or be adversely affected by, coastal processes. 257 The objectives of the
251
State Environmental Planning Policy No 71 Coastal Protection, cl 7, cl 8(j). The LEP must also
give effect to the provisions of the NSW Coastal Policy 1997; Direction of the Minister for Planning
under the Environmental Planning & Assessment Act 1979 (NSW), section 117.
252
North Coast Regional Environmental Plan 1988 (NSW), cl 32.
253
Coastal Protection Act 1979 (NSW) section 55B. Local authorities in coastal zones may be
directed by the Minister for Planning to make a coastal zone management plan.
254
Coastal Protection Act 1979 (NSW) section 55C.
255
Coastal Protection Act 1979 (NSW) section 55K.
256
According to Byron Shire Council, a plan will be developed in 2008,
http://www.byron.nsw.gov.au/Environment/Coastal/ManagementPlan.aspx at 15 June 2008.
257
Byron Local Environmental Plan 1988 (NSW) at 30, Zone No. 7(f1)(Coastal Land Zone).
275
Byron Development Control Plan 2002 include the aim of ensuring that the
impact of coastal processes on potential development is minimised by limiting
development and ensuring any development is only temporary. 258 Where new
development is located between the beach escarpment and the immediate impact
line (as identified in the Coastline Management Study), no building may be
located within 20 metres of the escarpment and any works must be of modular
construction and able to be removed within 12 hours.259 For any development
within the immediate impact line and the 50 year erosion line, consent is granted
subject to the proviso that the development consent must cease, and the
development must be relocatable by road vehicle, if the erosion escarpment
comes within 50 metres of the development.260
A similar restriction is placed on development located within the 50 year and 100
year erosion lines. In that case, the owner has the option of demolition, rather
than relocation, of the property. 262 However, Byron Shire Council has also
repeatedly refused applications for consent to carry out erosion protection works
in the area.263 As a result this informal policy of planned retreat unquestionably
258
276
shifts the adaptation burden onto the landowner, but confers no right to undertake
private adaptation measures. 264
Van Haandel v Byron Shire Council [2006] NSWLEC 394 (unreported) (Commissioner Brown, Land
and Environment Court, 20-21 June 2006).
264
McDonald, n248, 133.
265
See, for example, Heath Gilmore, 'Waterfront Owners Threat to Sue Over Rising Sea Levels', The
Sun-Herald (Sydney), 20 May 2007, 7.
266
Jan McDonald, 'A Risky Climate for Decision-Making: The liability of development authorities for
climate change impacts' (2007) 24(6) Environmental and Planning Law Journal 405 at 413.
267
J Bengtsson, R Hargreaves and I.C. Page, 'Assessment of the Need to Adapt Buildings in New
Zealand to the Impacts of Climate Change' (Study Report No 179 (2007), BRANZ, 2007) at 87;
Beston, Anne, Seaside Houses Falsely Tagged as Flood Risks The New Zealand Herald, 14 October
2006.
268
Ibid.
277
269
Walker v Minister for Planning [2007] NSWLEC 741; (2007) LGERA 124 at [161], [166]. An
appeal has been lodged by the Minister against this decision. The appeal hearing will take place later
this year.
270
Charles & Howard Pty Ltd v Redland Shire Council [2007] QCA 200 at [3].
271
Scurr v Brisbane City Council (No 6) (1975) QPLR 162 at 165-166; Comkey Pty Ltd v Caboolture
Shire Council (2006) QPELR 399 at [47], Bennett & Anor v Livingstone Shire Council & Ors (1985)
QPLR 214 at 216, The Aborigines and Islanders Alcohol Relief Service Limited v Mareeba Shire
Council & Ors (1985) QPLR 292 at 295-296, Queensland Adult Deaf and Dumb Society
(Incorporated) v Brisbane City Council (1972) 26 LGRA 380 at 386, Castro v Douglas Shire Council
278
by the Council was a valid condition taking into account local planning policies
regarding sea level rises which had the objective of protecting residential housing
from floodwaters by excluding such development from lands inundated by the
Average Recurrence Interval of one in 100 year flood. 272
These examples highlight the legal uncertainty surrounding the authority of local
councils to demand adjustments to the manner of use of private property in order
to protect the community from those risks. Decisions by local councils to act or
not act, where the local authority has exercised sufficient control over the threat,
may result in legal challenges and potential findings of liability for the losses
suffered by private landowners. 273 Consequently, the role of local authorities may
need to be strengthened through specific statutory powers enabling those
authorities to demand amendments to the design, location, use of building
materials and level of sustainability of proposed development in order to promote
adaptation and minimise the risks posed by the impacts of climate change.
Greater community education and awareness must also be achieved to assist
landowners in understanding the reasons behind such regulation and the full
implications of the future risks of climate change to their properties.
traditional regulatory approach to the assessment of new projects and will require
the balancing of conflicting short term social and environmental impacts with the
(1992) QPLR 146 at 158, Luke v Maroochy Shire Council & Watpac Developments Pty Ltd (2003)
QPELR 447 at [50], Charles & Howard Pty Ltd v Redland Shire Council [2007] QCA 200 at [21].
272
Charles & Howard Pty Ltd v Redland Shire Council [2007] QCA 200 at [10], [25]-[29].
273
McDonald, n 266, 413. Although greater exemptions are emerging for local authorities through
the various tortious law reforms (discussed in Chapter Six).
279
One example of the adoption of a balanced assessment can be found in the 2007
Taralga Case involving a proposed windfarm in New South Wales.
The
proposal was objected to by local landowners and the local community on the
basis of visual and noise impacts. The Court acknowledged that the windfarm
would interrupt the natural cohesion of the local landscape. 275 However, the Court
considered this is light of the public interest in the promotion of renewable
energy. The Court accepted the conclusions of the IPCC reports regarding the
link between fossil fuel use and climate change, noted the likely impacts on the
Australian Great Barrier Reef, water resources and agriculture and observed that
the difficulty facing governments globally is how to deal with the implications
of climate change whilst continuing to meet the demands of a growing
population.276
The Court referred to the central role of the principles of ESD and the concept of
intergenerational equity regarding the development of new energy resources and
remarked:
addressing the implications of climate change involves a complex intersection of
political, economic and social considerations. It is widely recognised that the state
of the global environment is in rapid decline, requiring an urgent response if the
274
For a discussion of other approaches to the approval of wind farms, in particular, see James Prest,
'The Bald Hills Wind Farm Debacle' in Tim Bonyhady and Peter Christoff (eds), Climate Law in
Australia (2007) Sydney, The Federation Press, 230 and the discussion of cases preceding Taralga in
Judith Jones, 'Global or Local Interests? The Significance of the Taralga Wind Farm Case' in Tim
Bonyhady and Peter Christoff (eds), Climate Law in Australia (2007) Sydney, The Federation Press,
262.
275
Taralga Landscape Guardians Inc v Minister for Planning and Res Southern Cross Pty Ltd [2007]
NSWLEC 59 at [116].
276
Ibid, [68]-[72].
280
This judgment has been described as emphasising the need for environmental
laws to be interpreted at a local level in order to respond to the global challenge
of climate change.278 The Court noted that the attainment of inter-generational
equity in the production of energy requires two things. The first is that the
mining and use of energy is sustainable. The second is to increasingly substitute
energy sources that result in less greenhouse gas emissions thereby reducing the
cumulative and long term effects caused by climate change.279
The Court concluded that renewable energy sources are an important method of
reducing emissions and noted that wind energy involves almost zero emissions
once constructed. 280 In this context, the Court came to the conclusion that the
overall public benefits outweighed the private objections:
there is a significant public interest..in adoption of alternative,
more
277
281
The most common of legal transactions involve property as the central asset.
The implications of climate change on existing and future buildings are
significant. The lifespan of new buildings today can be 40 to 60 years which
means that the buildings that we are currently designing and constructing will
be significantly affected by the impacts of climate change.284 According to a
study commissioned by the Australian Greenhouse Office (AGO), the main
impacts of climate change with implications for Australian buildings are:
282
282
286
Building Code of Australia 2006, Volume One Energy Efficiency Provisions, Section J. The
Building Code 2003 applied energy efficiency standards to housing. In BCA 2006, these now apply to
building classes 2-9. See also D E Fisher, 'Formulation of Building Standards for Energy
Conservation in Buildings' (2006) 18 Environmental Law and Management 282 at 290-291.
287
Australian Building Codes Board, Energy Efficiency Provisions for Housing (27 August 2007)
http://www.abcb.gov.au/go/whatweredoing/workprogram/projectsae/energy/eeprovisionshousing at
17 June 2008; Australian Building Codes Board ,Energy Energy Provisions for Multi-Residential
and Commercial Buildings (27 August 2007),
http://www.abcb.gov.au/go/whatweredoing/workprogram/projectsae/energy/eecommercial at 17 June
2008.
288
Energy efficiency requirements are imposed in many of the States and Territories but there is not
yet a unified national approach; see Building Code of Australia 2006, Volume One Energy Efficiency
Provisions, Section J. The Building Code 2003 applied energy efficiency standards to housing. BCA
2006 applies energy efficiency standards to building classes 2-9. For a brief overview of the different
jurisdictional approaches see http://www.houseenergyrating.com/ at 15 June 2008. The National
Framework for Energy Efficiency is intended to achieve a nationally consistent legislated regime,
http://www.nfee.gov.au/buildings.jsp?xcid=121 at 15 June 2008.
289
2002 South Australian Housing Code, Appendix H; see Planning SA SA Housing Code
Amendment 14 (May 2007) - Appendix H,
http://www.planning.sa.gov.au/download.cfm?DownloadFile=E5B9F999-F203-0D46AD26A708FBF4E684 at 15 June 2008.
290
These principles apply to all new residential and office developments and
extensions/refurbishments. Government of South Australia, 'Adelaide (City) Development Plan under
the Development Act 1993' (Consolidated August 2007), Principle 113.
283
Other states, such as NSW, have implemented their own separate regimes for
energy efficiency in building design.292
There are also some embryonic examples of the need to adapt to climate
change being taken into consideration in judicial deliberations. For example,
the case of Jackson Teece v Waverley Council involved a residential flat
building proposal which had a number of deficiencies including inadequate
parking and poor solar access. 293 While the proposal as a whole was refused,
Roseth SC made the following interesting observation in respect of the
inadequate parking:
given the current concern with climate change and the increasing emphasis on the
use of public transports, I would be reluctant to refuse an application because it is
deficient in parking, so long as the deficiency does not cause other people
inconvenience.294
291
Ibid.
For example, the SEPP (Building Sustainability Index: BASIX) 2004 (NSW) requires all new
homes in New South Wales to use up to 40 per cent less potable water and produce up to 40 per cent
fewer greenhouse gas emissions than the average home. There are also some State-based initiatives
designed to promote energy efficiency in the corporate sector including the Clean Energy Act 2008
(Qld) (passed 14 May 2008) which requires businesses which use 10 terajoules or more of energy
each year to undertake an energy audit and devise an energy savings plan (Parts 5- 6 Clean Energy
Act 2008 (Qld)).
293
Jackson Teece v Waverley Council [2007] NSWLEC 69, Senior Commissioner Roseth, at [28],[29].
294
Ibid, [28].
292
284
It is likely that the legal framework for the design, construction and operation
of buildings will continue to strengthen as the effects of climate change
become more apparent. Ultimately, it is likely that each planning scheme
will provide, and enforce, detailed requirements regarding site choice,
building design, material selection and operational efficiency of all buildings
in response to the risks posed by climate change.
295
285
Those categories of
management;
energy efficiency;
water efficiency;
transport;
material selection;
emissions; and
innovation.297
A recent review of Green Star certified buildings found that these buildings
generally achieve:
a. a reduction in energy use of up to 85 per cent against equivalent
conventional buildings;
b. a reduction in potable water consumption of over 60 per cent against
conventional buildings;
c. average carbon dioxide reduction equivalent to removing 130 cars off the
road permanently; and
d. an average of 69 per cent of construction waste being diverted from
landfill. 298
296
Richard Bowman and John Mills, 'Valuing Green: How Green Buildings Affect Property
Valuations and Getting the Valuation Method Right' (Green Building Council of Australia, 2008) at 9.
297
Green Building Council of Australia The Inside Guide to Green Star
http://www.gbcaus.org/docs/GBCA_The%20Inside%20Guide%20to%20Green%20Star.pdf at 15
June 2008.
298
Richard Bowman and John Mills, n296, 10.
286
301
The
299
Ibid, 5.
Ibid 6.
301
Ibid.
302
Tim Power, 'Lease Arrangements for Green Commercial Buildings' (2007) Freehills: Update
http://www.freehills.com.au/publications/publications_2243.asp at 15 June 2008.
303
Sharon Christensen and William Duncan, 'Green Leases - A New Era in Landlord and Tenant Cooperation?' (2007) 15 Australian Property Law Journal 54 at 58.
304
Formerly known as the Australian Building Greenhouse Rating Scheme (ABGR). National
Australian Built Environment Rating Scheme, Nabers Energy Commitment Agreement [new
buildings and refurbishments], 1. National Australian Built Environment Rating Scheme, Nabers
Energy Commitment Agreement [new or refurbished tenancies and fitouts], 1
http://www.nabers.com.au/office.aspx at 15 June 2008.
300
287
Building owners and tenants are required to enter into contractual agreements
with the Nabers Office prior to the use of the energy rating. The contracting
party must be the proprietor or head lessee of the premises.
The so-called
commitment agreement allows the proponent to nominate the star level that the
project will perform at, once the building is fully operational.
Three stars
represent current best market practice and commitment agreements are intended
to nominate star levels of 4, 4.5 or 5. Once the commitment agreement has been
signed, building owners and tenants are able to promote the greenhouse
performance of the building or tenancy. The prior approval of the Nabers Office
is required where the party wishes to sell, transfer or otherwise dispose of
ownership of the premises and relevant rights and obligations under the
agreement must be assigned to the third party. 306
According to the AGO, buildings that include sustainable measures, including
strong passive solar design principles and efficient water usage systems, are
likely to be more resilient to the impacts of climate change.
307
The
305
Ibid.
If the third party purchaser does not wish to be bound by a commitment agreement then the owner
or tenant, as the case may be, is entitled to immediately terminate the agreement. National Australian
Built Environment Rating Scheme, Nabers Energy Commitment Agreement [new buildings and
refurbishments], 5. National Australian Built Environment Rating Scheme, Nabers Energy
Commitment Agreement [new or refurbished tenancies and fitouts], 5.
307
Australian Greenhouse Office, n284, 4.
308
Australian Greenhouse Office, 'Energy Efficiency in Government Operations Policy'
(Commonwealth of Australia, 2006).
309
Ibid 1. This does not apply to tenancy areas of less 2,000m2 and leases of under 2 years where only
requirements for energy efficient lighting and separate metering apply. Exceptions can be granted for
an ABGR rating of less than 4.5 in special circumstances eg heritage listed buildings. Department of
306
288
The AGO has developed a Green Lease Schedule to be used in all leases for
Commonwealth buildings and lettings, that makes provision for a range of
ongoing energy efficiency performance obligations. 310 The schedule requirements
vary according to the size and nature of the particular lease. 311 However, the
standard provisions in the green lease schedule generally relate to:
the achievement and maintenance of the 4.5 ABGR energy rating (this
can be adjusted down in limited circumstances);
the Environment and Water Resources and Australian Greenhouse Office, 'Energy Efficiency in
Government Operations Policy: Green Lease Schedule (GLS)' (Commonwealth of Australia, 2007).
310
Australian Greenhouse Office, Green Lease Schedule
http://www.environment.gov.au/settlements/government/eego/index.html at 15 June 2008.
311
Department of the Environment and Water Resources and Australian Greenhouse Office, 'Energy
Efficiency in Government Operations Policy: Green Lease Schedules Guidance Notes'
(Commonwealth of Australia, 2007) at 12.
312
Ibid, 9-10.
289
III Adaptation to Climate Change and Contracts for the Sale of Land
When advising in relation to the sale of land, Australian legal practitioners
should be increasingly aware of the potential physical, economic and
environmental implications of adverse climate change and the effect that may
have on the value of their clients assets. The potential future risks from
climate change include sea level rises, flooding and the risk of future
inundation of properties with resulting deterioration in property values and
loss of assets. There is also the risk of failure of buildings from increased
temperatures, droughts and incidences of severe weather events. Purchasers
should also be made aware of the financial implications of future regulatory
regimes which may require the mandatory installation of energy efficient and
water saving devices and may restrict the ability of landowners to fully
exploit the opportunities associated with their assets.
Property assessments should take into account the risk of climate change
impacting on the asset and, in particular, the risks of flooding and inundation
on the present and future value of the property. Whether the building is
environmentally sustainable will also impact on the existing and future
market value of the property.
accelerated value depreciation of the asset and may require major capital
works to meet future regulatory changes including the imposition of more
stringent economic and environmental performance standards.
313
Such
These could
313
290
All
In this era of drought and water restrictions, the presence of water tanks has
also become a significant factor in the marketing of properties.
The
Repeated non-
compliance will result in fines, outdoor watering bans and the installation of
flow restrictors on the propertys water supply. 320 These restrictors are
installed to the water meter at the property and will reduce significantly the
314
Civil Law (Sale of Residential Property) Act 2003 (ACT), section 22(1).
Civil Law (Sale of Residential Property) Act 2003 (ACT), section 22(2).
316
Civil Law (Sale of Residential Property) Act 2003 (ACT), ss 22(3)-22(5).
317
Civil Law (Sale of Residential Property) Act 2003 (ACT), ss 23(1)-22(2).
318
Civil Law (Sale of Residential Property) Act 2003 (ACT), section 23(3).
319
For non-residential users, this is implemented through Part 5, Division 3 of the Water Act 2000
(Qld) (ss 360ZCA-360ZCK).
320
Queensland Water Commission, Residential Excessive Water User Compliance Program: Level
6, http://www.qwc.qld.gov.au/myfiles/uploads/level%206/fact%20sheets/L6FS_ExcessiveUse.pdf
at 15 June 2008.
315
291
water flow rate.321 The water commissioner has advised that restrictors will
be initially installed for a 30 day period but will be reinstalled for serial
offenders. 322 Accordingly, the past performance of the property, and its
ability to meet water targets through normal day-to-day operations, is
becoming an important aspect for consideration in the purchase of a
property. 323
Where carbon credits have been sold from carbon stored in the vegetation on
the property then the purchaser must also consider the rights and
responsibilities associated with that stored carbon including the contractual
assignment of legal obligations to preserve the carbon stocks on the land for a
lengthy period of time.
CONCLUSION
321
Ibid. Broad powers to restrict (and prohibit) water supply where the commission considers it
necessary are provided under Part 6 of the Water Act 2000 (Qld). These restrictions can extend to
water taken from a rainwater tank that is connected to a service providers reticulated supply (section
360ZD(3)).
322
Queensland Water Commission, n320.
323
The generation and sale of carbon credits from vegetation on land is discussed further in Chapter
Seven .
324
Nicolas De Sadeleer, n21, 3.
325
Benjamin Richardson, 'Climate Law and Economic Policy Instruments: A New Field of
Environmental Law' (2004) [2004](1) Environmental Liability 19 at 19.
292
readily equipped to step into this void and regulate greenhouse gas emissions and
their environmental repercussions. In theory, the objectives and scope of these
existing environmental legal systems comfortably extend to the regulation of
climate change and the restriction of emissions. Indeed, the Federal EPBC Act is
particularly well suited to addressing major projects with significant levels of
emissions and the potential to impact on matters of national significance.
However, in practice, the interpretation and application of these laws merely
pays lip service to the objectives of environmental protection. As noted by one
commentator:
the law as set down in legislation does not always reflect what happens in practice.
The availability of legal rights and powers often does not reflect the reality of
natural resources management.natural resources management is more likely to be
constrained by political influences, which include social, cultural and economic
considerations, than by absence of legal power.326
326
Gerry Bates, 'Legal Perspectives' in Stephen Dovers and Su Wild River (eds), Managing
Australia's Environment (2003) Sydney, The Federation Press, 255 at 255.
293
The existing legal system is also clearly not primed to facilitate adaptation to the
impacts of climate change. The current legal approach is ad hoc, inconsistent
across the state and territory jurisdictions, and lacking in any clear parameters for
implementation. Adaptation requires that sustainability becomes the norm in all
aspects of building design, location and operation; and in resource choices and
resource use. Accordingly, an effective regulatory approach requires traditional
property laws, planning regimes, land contracts and leasing provisions, across
Australia, to be reformed to accommodate this new overarching priority of
promotion of the principles of ESD.
294
INTRODUCTION
Humans play a pivotal role in contributing to climate change through the burning
of fossil fuels, the use of products that emit greenhouse gases and land-use
changes such as urbanisation, deforestation and agricultural practices. Changes
to our climate system are predicted to result in rising sea levels, rising
temperature and higher incidences of severe storms. 2 Climate-related harm could
include loss of homes, livestock and other property, damage to public
infrastructure and to coastal settlements, impaired agricultural yields, loss of
livelihoods and population displacement. 3 The human health impacts could
involve thermal stress and heat-related deaths and illnesses, proliferation and
geographical shifts of infectious diseases, impaired nutrition and other adverse
mental and physical health risks. 4
Sections of this chapter were published in Nicola Durrant, 'Tortious Liability for Greenhouse Gas
Emissions? Climate Change, Causation and Public Policy Considerations' (2007) Volume 7, Issue 2
QUT Law and Justice Journal 403 and Nicola Durrant, 'Professional Liability for Climate-Affected
Advice' (2007) Issue 60 Queensland Environmental Practice Reporter 114.
2
IPCC, 'Climate Change 2007: The Physical Science Basis: Summary for Policy Makers,
Contribution of Working Group I to the Fourth Assessment report of the Intergovernmental Panel on
Climate Change' (IPCC Secretariat Geneva, 2007); IPCC, 'Climate Change 2001: Synthesis Report to
the Third Assessment Report of the Intergovernmental Panel on Climate Change' (Cambridge
University Press, 2001)).
3
Ibid.
4
IPCC, 'Climate Change 2001', n2, 9.
5
Some States are beginning to implement State-based reduction targets but these do not yet amount to
a prohibition on greenhouse gas emissions. For example, the Climate Change and Greenhouse Gas
Emissions Reduction Act 2007 (SA).
295
leads to the question. On whom should the risk fall for climate harm? Is it
industry, government or the private individual? 6
The purpose of this chapter is to assess the potential legal issues in establishing
liability for large-scale emitters of greenhouse gases, in Australia, for resulting
harms caused from changes to the climate system. This paper focuses on the
likely role of the common law of torts in addressing resulting harms from climate
change. It does so primarily through an analysis of the potential scope of liability
in hypothetical negligence and nuisance suits against coal mining projects and
coal-fired power plants. This chapter identifies a range of significant obstacles in
successfully bringing claims in negligence for climate change harm.
These
Or in the words of Myles Allen; what might happen if it all goes horribly wrong? Myles Allen,
'The Spectre of Liability: Part 1-Attribution' in Kenny Tang (ed), The Finance of Climate Change: A
Guide for Governments, Corporations and Investors (2005) London, Risk Books, 367 at 367.
296
Australia is also a party to the Kyoto Protocol. The current Federal Australian
government deposited the instrument of ratification of the Kyoto Protocol with
the UNFCCC Secretariat in late 2007. Australia became bound to comply with
its obligations under the Kyoto Protocol in March 2008. 9 This includes an
obligation to reduce greenhouse gas emissions to 108 per cent of 1990 levels in
during 2008 and 2012.10
Both the UNFCCC and the Kyoto Protocol are silent on the allocation of
responsibility for damage caused as a result of anthropogenic greenhouse gas
emissions. This means that, at an international level, reparation of harm must be
addressed through existing international law principles including the principle of
State responsibility for transboundary harm. 11 At a national level, and in the
absence of specific legislation regulating emissions and climate harm, the
allocation of liability for losses must fall to be addressed by the common law.
United Nations Framework Convention on Climate Change, opened for signature on 4 June 1992,
31 ILM 849 (entered into force on 21 March 1994)(UNFCCC); Kyoto Protocol to the United Nations
Framework Convention on Climate Change, opened for signature 16 March 1998 (entered into force
on 16 February 2005) (Kyoto Protocol)(together the climate change regime).
8
UNFCCC, n7, Article 2.
9
That is 90 days from the receipt of the Instrument of Ratification by the United Nations.
10
Kyoto Protocol, n7, Article 3 and Annex A.
11
See Roda Verheyen, Climate Change Damage and International Law: Prevention Duties and State
Responsibility, Developments in International Law: Volume 54 (2005) Leiden, Martinus Nijhoff
Publishers.
297
The common law is a dynamic area of law that is able to adapt to the changing
needs of society.12 The principal goal of tort law has been described in many
formats. One theoretical approach refers to tort law as corrective justice, another
as maximising social welfare and a third as the distribution or allocation of the
costs of risk-bearing. 13 From these three, the appropriate basis for liability for
environment related torts appears to be based on considerations of sharing the
risk of the broad social costs of climate change. 14 Accordingly, in the emerging
area of climate losses, the Court must develop and adapt legal principles to
identify wrongdoers, recognise the wrong done, allocate blame and distribute
losses. However, it is debatable whether the common law of torts is able to adapt
sufficiently to apply to the modern, global, environmental, problem of climate
change which cuts across the public and private arenas. 15
Tortious actions in negligence are most likely to be brought against large users of
fossil fuels, suppliers of fossil fuels and the creators of products that utilise fossil
fuels. 16 Actions may also be brought against governments in their capacity as
public authorities and where they own or control public works and infrastructure
such as electricity utilities.
12
Karen Morrow, 'Nuisance and Environmental Protection' in John Lowry and Rod Edmunds (eds),
Environmental Protection and the Common Law (2000) Oxford, Oregon, Hart Publishing, 139 at 139.
Perre v Apand Pty Ltd (1999) 198 CLR 180 at [92] per McHugh J.
13
Glanville Williams and B.A. Hepple, Foundations of the Law of Tort (2 ed, 1984) London,
Butterworths at 197-198, 201.
14
Karen Morrow, n12, 157.
15
Ibid.
16
Joseph Smith and David Shearman, Climate Change Litigation: Analysing the Law, Scientific
Evidence and Impacts on the Environment, Health and Property (2006) Adelaide, Presidian Legal
Publications at 17.
298
includes physical property damage from heat, wind, floods and sea level rises.
Where greenhouse gas emissions have caused property damage, personal injury
and consequential loss then it is necessary to determine whether the relationship
between the parties falls within one of the recognised relationships giving rise to
a duty of care. 17
The foundation for the establishment of a duty of care is found in the so-called
neighbour principle as espoused in Donoghue v Stevenson: 18
you must take reasonable care to avoid acts or omissions which you can reasonably
foresee would be likely to injure your neighbour. Who then, in law is my
neighbour? The answer seems to be persons who are so closely and directly
affected by my act that I ought reasonably to have them in contemplation as being
so affected when I am directing my mind to the acts or omissions which are called
into question.
17
18
299
The application of this principle to an industrial plant and local residents affected
by emissions appears quite valid. However, the impacts of climate change go
beyond the local community and extend to the regional, national and the global.
As the nexus between the emitter and the plaintiff expands, the likelihood of the
Court finding a duty of care becomes more and more uncertain.
19
300
Where the harm caused by the emitting industry results in pure economic loss
then recovery will be permitted only in limited circumstances. 20 As noted:
in my opinion it is still right to say that as a general rule damages are not
recoverable for economic loss which is not consequential upon injury to the
plaintiff's person or property. The fact that the loss was foreseeable is not enough to
make it recoverable. However, there are exceptional cases in which the defendant
has knowledge or means of knowledge that the plaintiff individually, and not
merely as a member of an unascertained class, will be likely to suffer economic loss
as a consequence of his negligence, and owes the plaintiff a duty to take care not to
cause him such damage by his negligent act.21
In such circumstances, this will require the establishment of a novel duty of care
by the Court.
establishment of a novel duty of care, that is, the law should develop novel
categories of negligence incrementally and by analogy with the established
categories. 22 This multi-factorial approach looks to a range of legal and policy
principles including the defendants control of the circumstances giving rise to
the harm and the vulnerability of the plaintiff in terms of their inability to protect
themselves from that harm. 23
20
301
entirely or at least in a way which would cast the consequences of loss on the
defendant.24
With respect to greenhouse gas emissions, the emitter has control of the nature
and amount of greenhouse gases produced and emitted by its industrial activities.
The avoidance of harm from climate change is outside the control of the plaintiff
and, as individuals, they are unable to prevent the occurrence of climate change.25
Moreover, as severe weather events, coastal erosion, landslides and floods
increase in vulnerable areas the insurance sector is increasingly denying coverage
for these climate change related risks. 26
However, in considering whether to establish a novel duty, the Court will also
take into account public policy principles.
significant obstacle for any tortious action based on harm from climate change.
Climate change is a global phenomenon and occurs as a result of natural
processes as well as historic and continuing anthropogenic emissions. The
establishment of a duty of care for harm caused by climate change as a result of
the contribution of the particular emissions of the defendant could be regarded as
the imposition of an unreasonable social burden. The Court may determine that
holding these individual emitters responsible for the cumulative global and
historic emissions of our industrialised society is an unreasonable shift of
responsibility and has the potential to result in the imposition of indeterminate
liability on emitters.27 As part of its considerations, the Court will balance the
interests of the community with concerns that the identification of a duty of care
could result in a flood of claims before the Courts alleging breach. As the harms
24
Woolcock Street Investments Pty Ltd v CDG Pty Ltd (2004) 216 CLR 515 at [23] per Chief Justice
Gleeson, Justices Gummow, Hayne and Heydon.
25
Ibid.
26
Andrew Dlugolecki and Mojdeh Keykhah, 'Climate Change and the Insurance Sector: Its Role in
Adaptation and Mitigation' in Kathryn Begg, Frans Van Der Woerd and David L. Levy (eds), The
Business of Climate Change: Corporate Responses to Kyoto (2005) Sheffield, Greenleaf Publishing,
147; RF&C Investments, 'In the Front Line: The Insurance Industry's Response to Climate Change'
(Reo Research, 2007) at 8; Evan Mills, 'From Risk to Opportunity: 2007 Insurer Responses to
Climate Change' (CERES, 2007).
27
Cole v South Tweed Heads Rugby League Football Club Ltd (2004) 207 ALR 52.
302
from climate change become more and more apparent in Australia, concerns
about the flood of claims will become all the more legitimate in the eyes of the
law.
28
Jan McDonald, 'A Risky Climate for Decision-Making: The liability of development authorities for
climate change impacts' (2007) 24(6) Environmental and Planning Law Journal 405 at 412. Claims in
negligence might also be bought against public authorities in circumstances where they own or
control the facilities responsible for large scale greenhouse gas emissions.
29
See, for example, Ryan v Great Lakes Council; New South Wales v Ryan (2002) 77 ALJR 183 at
186. Ibid.
30
McDonald, n28, 412.
303
Moreover, statutory tort law reforms in Australia have limited the scope of
potential liabilities of public authorities and provided additional defences to
tortious claims. For example, the following principles will apply in determining
whether a duty of care exists in relation to a public authority:
(a) the functions required to be exercised by the authority are limited by the
financial and other resources that are reasonably available to the authority for the
purpose of exercising the functions;
(b) the general allocation of financial or other resources by the authority is not open
to challenge;
(c) the functions required to be exercised by the authority are to be decided by
reference to the broad range of its activities (and not merely by reference to the
matter to which the proceeding relates);
(d) the authority may rely on evidence of its compliance with its general procedures
and any applicable standards for the exercise of its functions as evidence of the
proper exercise of its functions in the matter to which the proceeding relates.31
31
Section 35 of the Civil Liability Act 2003 (Qld). Similar provisions have been enacted in s 42 of the
Civil Liability Act 2002 (NSW), s38 of the Civil Liability Act 2002 (Tas), s110 of the Civil Law
(Wrongs) Act 2002 (ACT) and s5W of the Civil Liability Act 2002 (WA). Section 83 of the Wrongs
Act 1958 (Vic) is similar but excludes (b). Richard Douglas, Gerard Mullins and Simon Grant, The
Annotated Civil Liability Act 2003 (QLD) (2004) Chatswood, LexisNexis Butterworths at 35.5.
32
See also Elizabeth Carroll, Wednesbury Unreasonableness as a Limit on the Civil Liability of
Public Authorities (2007) 15 Tort Law Review 77.
304
Accordingly, in setting the appropriate standard of care the Court will determine
the magnitude of the risk of climate change, the probability of that risk actually
occurring and the relative expense of requiring the defendant to take steps to
alleviate that risk.
33
34
305
(1) A person does not breach a duty to take precautions against a risk of harm
unless
(a) the risk was foreseeable (that is, it is a risk of which the person knew or ought
reasonably to have known); and
(b) the risk was not insignificant; and
(c) in the circumstances, a reasonable person in the position of the person would
have taken the precautions.35
Under the tort law reforms, this common law test of foreseeability has been
altered to apply to risks that are not insignificant. 37 This was discussed in
Drinkwater v Howarth38 as:
a risk which is much more than far-fetched or fanciful may not differ materially
from a risk which is not insignificantif the plaintiff was clearly at risk, then it
cannot be said that the risk was insignificant. It was a clear risk.39
So the question to be asked is whether the risk of climate change was not
insignificant at the time of the emission of the greenhouse gases? The UNFCCC,
35
Section 9 of the Civil Liability Act 2003 (Qld). Similar provisions to s 9 have been enacted in s43
Civil Law (Wrongs) Act 2002 (ACT), s5B Civil Liability Act 2002 (NSW), s32 Civil Liability Act
2002 (SA), s11 Civil Liability Act 2002 (Tas), s48 Wrongs Act 1958 (Vic), s5B Civil Liability Act
2002 (WA). Richard Douglas, Gerard Mullins and Simon Grant, The Annotated Civil Liability Act
2003 (QLD) (2004) Chatswood, LexisNexis Butterworths at 9.7.
36
Wyong Shire Council v Shirt (1980) 146 CLR 40 at 48 per Justice Mason.
37
Compare with section 48(3)(a) of the Wrongs Act 1958 (Vic) which states that this term includes,
but is not limited to, acts that are far-fetched or fanciful.
38
Drinkwater v Howarth [2006] NSWCA 222.
39
Ibid, at [16] and [19].
306
40
UNFCCC, n7. This was signed by Australia on 4 June 1992 and ratified on 30 December 1992.
UNFCCC,n7, Preamble.
42
Prime Minister John Howard, Address to the Melbourne Press Club (23 July 2007, Melbourne)
http://www.egovmonitor.com/node/13024 at 14 June 2008.
43
IPCC, 'Climate Change 2007', n2.
41
307
The IPCC Report identifies a clear link between temperature increases and
greenhouse gas emissions and concludes that most of the observed increase in
globally average temperatures since the mid-20 th century is very likely due to the
observed increase in anthropogenic greenhouse gas concentrations.45
The assessment concludes that continued emissions at or above current rates will,
very likely, cause further warming and induce larger changes in the climate
system than those observed during the 20th century. 46 Accordingly, at the time of
release of this report with its increased scientific certainty, knowledge of the
probability of harm from unabated greenhouse gas emissions could be concluded
to have entered the public arena.
44
Ibid, 4.
Ibid, 8. Very likely, in this quote, refers to a scientific certainty of above 90 per cent.
46
Ibid, 10.
47
H v Royal Alexandra Hospital for Children (1990) Aust Torts Reports 81-000.
45
308
services in this country ought to have been well aware by at latest April 1983 that
there was a real risk.48
A similar argument could be run in relation to the release of the IPCC report in
February 2007.
The IPCC Report concludes that past and future emissions will
continue to contribute to warming and sea level rises for more than a millennium
to come due to the large timescales required to remove the gases from the
atmosphere.50 Carbon dioxide, for example, will stay in the atmosphere for up to
one hundred years. 51
In determining whether there has been a breach of duty, the Court will undertake
an assessment of, amongst other matters, the reasonableness of the precautions
undertaken by the defendant. The matters to be considered are articulated in the
statutory tort law reforms as follows:
48
Ibid, at 67,529.
For example, CSIRO and Australia Bureau of Meteorology, 'Climate Change in Australia:Technical
Report 2007' (Commonwealth Scientific and Industrial Research Organisation, 2007); RSJ (Bob)
Beeton et al, 'Australia State of the Environment 2006: Independent Report to the Australian
Government Minister for the Environment and Heritage, Department of the Environment and
Heritage, Canberra' (Australia State of the Environment Committee, 2006),
http://www.environment.gov.au/soe/2006/index.html at 14 June 2008.
50
IPCC Climate Change 2007, n2, 13.
51
The other greenhouse gases have both longer and shorter life spans.
49
309
in deciding whether a reasonable person would have taken precautions against a risk
of harm, the court is to consider the following (among other relevant things)
(a) the probability that the harm would occur if care were not taken;
(b) the likely seriousness of the harm;
(c) the burden of taking precautions to avoid the risk of harm;
(d) the social utility of the activity that creates the risk of harm.52
The level of probability of the harm occurring will vary according to the nature
of the plaintiff and the point in time of the assessment. The probability and likely
seriousness of the risk of harm will be assessed at the time of injury to the
plaintiff. 53 In terms of the seriousness of the harm, the Court will take into
account the gravity of the harm in terms of the global impacts from greenhouse
gas emissions and predicted changes to the climate system.
In terms of the burden of taking practical precautions with respect to the nature of
the risk, this is described as:
(a) the burden of taking precautions to avoid a risk of harm includes the burden of
taking precautions to avoid similar risks of harm for which the person may be
responsible; and
(b) the fact that a risk of harm could have been avoided by doing something in a
different way does not of itself give rise to or affect liability for the way in which
the thing was done.54
52
For example, section 9(2) of the Civil Liability Act 2003 (Qld).
Roe v Minister of Health [1954] 2 QB 66.
54
Section 10 of the Civil Liability Act 2003 (Qld). Similar provisions have been enacted in s44 Civil
Law (Wrongs) Act 2002 (ACT), s5C Civil Liability Act 2002 (NSW), ss 11 and 12 Civil Liability Act
2002 (Tas), s49 Wrongs Act 1958 (Vic), s5B(2) Civil Liability Act 2002 (WA). Richard Douglas,
Gerard Mullins and Simon Grant, The Annotated Civil Liability Act 2003 (QLD) (2004) Chatswood,
LexisNexis Butterworths at 10.3.
53
310
The Court will assess the reasonableness of the acts taken by the defendant. In
Graham Barclay Oysters Pty Ltd v Ryan, 55 the distributor of oysters was sued in
negligence after the plaintiff contracted hepatitis from oysters which had been
grown in contaminated water. Justice McHugh considered the reasonableness of
the acts of the defendant and commented:
no doubt the magnitude of the risk, if it eventuated, was high. But so are the
magnitudes of many risks that reasonable people run because the alternative is too
costly or too inconvenient. The magnitude of the risk of being involved in a motor
car accident is very high, and the risk could be minimised, if not eliminated, by no
car ever travelling at more than 10 km per hour. But few would contend that
travelling at 10 km per hour was the only reasonable response to the risk of a motor
car accident.56
The Court will look to the expense, difficulty and convenience of the taking of
those practical precautions in the context of the gravity of the harm. 58 The fact
that the defendant does not possess the resources to implement the reasonable
precautions is not itself a sufficient defence.59 The Court could take into account
the ability of the defendant to pass the costs of these initiatives on to consumers
55
Graham Barclay Oysters Pty Ltd v Ryan (2002) 211 CLR 540 at [111].
Ibid.
57
Discussed in Nicola Durrant, Emissions Trading, Offsets and Other Mitigation Options for the
Australian Coal Industry(2007) 24(5) Environmental Planning and Law Journal 361.
58
Caledonian Collieries Ltd v Speirs (1957) 97 CLR 202; Romeo v Conservation Commission (NT)
(1998) 192 CLR 431; Wyong Shire Council v Shirt (1980) 146 CLR 40.
59
PQ v Australian Red Cross Society [1992] 1 VR 19; Apex Holiday Centre (Inc) v Lynn [2005]
WASCA 58.
56
311
consider the social utility of the activity giving rise to the harm. 60 In a modern
context, it would be possible to raise the argument that there is an essential
community need for continued energy supply in order for our society to function.
In considering whether there has been a breach of duty, the Court will take into
account any relevant statutory or customary standards. Whether there is statutory
authorisation for the harmful act will also be a relevant factor. For example, if
legislation prescribed the amount of greenhouse gas emissions that could
lawfully be emitted into the atmosphere then this would be factored into the
consideration of the reasonableness of the conduct. It is possible that the future
Federal emissions trading system would encompass such an authorisation.
Current
environmental
protection
legislation
in
Australia
regulates
60
This has traditionally been applied in cases involving the police, ambulance and other social
services in terms of the community good. For example, Daborn v Bath Tramways Motor Co Ltd
[1946] 2 All ER 333; Watt v Hertfordshire County Council [1954] 2 All ER 368.
61
As discussed in Chapter Five.
312
62
313
The Courts have traditionally applied the common sense and experience test
encompassing the but for test. 68 That is, whether the plaintiffs damage
would have occurred but for the defendants act or omissions in
combination with value judgments of the Court and the infusion of policy
considerations. 69
67
314
75
315
Therefore, it will be
80
Laferriere v Lawson (1991) 78 DLR (4th) 609; [1991] 1 SCR 541 at [159]; Halverson v Dobler
[2006] NSWSC 1307 at [176] per McClellan CJ.
81
Myles Allen, 'The Spectre of Liability: Part 2-Implications' in Kenny Tang (ed), The Finance of
Climate Change: A Guide for Governments, Corporations and Investors (2005) London, Risk Books,
381 at 381.
82
See Eduardo Penalver, 'Acts of God or Toxic Torts? Applying Tort Principles to the Problem of
Climate Change' (1998) 38(Fall) Natural Resources Journal 563 at 579-582.
83
IPCC, 'Climate Change 2001', n2, 1.2.2.
316
84
Provided that a causative link is otherwise established, defendants may still be held individually
liable in negligence or nuisance notwithstanding that the contribution alone would be insufficient to
amount to unreasonable interference Bonnici v Ku-Ring-Gai Municipal Council [2001] NSWSC 1124;
(2001) 121 LGERA 1 per Sperling J at [196]; Blair v Deakin (1887) 52 JP 327.
317
One of the primary decisions in this area is McGhee v National Coal Board.86
In that case, an employee was exposed to abrasive brick dust, no washing
facilities were provided, and he developed dermatitis. The Court held that
the employer was liable in negligence where his breach of duty had caused,
or materially contributed to, the injury suffered notwithstanding that there
were other factors which had contributed to the injury:
first, it is a sound principle that where a person has, by breach of a duty of
care, created a risk, and injury occurs within the area of that risk, the loss
should be borne by him unless he shows that it had some other cause.
Secondly,one may ask, why should a man who is able to show that his
employer should have taken certain precautions and who in fact sustains
exactly that injuryhave to assume the burden of proving more: namely,
that it was the addition to the risk, caused by the breach of duty, which
caused or materially contributed to the injury? In many casesthis is
impossible to prove, just because honest medical opinion cannot segregate
the causes of an illness between compound causes. And if one asks which
of the partiesshould suffer from this inherent evidential difficulty, the
answer as a matter of policy or justice should be that it is the creator of the
risk whomust be taken to have foreseen the possibility of damage, who
should bear its consequences.87
85
McGhee v National Coal Board [1972] 3 All ER 1008; [1973] 1 WLR 1; Bonnington Castings Ltd
v Wardlaw [1956] AC 613, Fairchild v Glenhaven Funeral Services Ltd [2003] 1 AC 32.
86
McGhee v National Coal Board [1972] 3 All ER 1008; [1973] 1 WLR 1.
87
McGhee v National Coal Board [1972] 3 All ER 1008 at 1012; [1973] 1 WLR 1 at 6 per Lord
Wilberforce cf. Wilsher v Essex Health Authority [1988] AC 1074.
318
Under the state of medical knowledge at the time, onset of the disease could
not be attributed exclusively to one of several successive employers, all
equally careless. The Court in Fairchild v Glenhaven Funeral Services Ltd
held that, in certain special circumstances, the Court could depart from the
usual 'but for' test of causal connection and treat a lesser degree of causal
connection as sufficient, namely that the defendant's breach of duty had
materially contributed to causing the claimant's disease by materially
increasing the risk of the disease being contracted.90 It might be possible for
plaintiffs to bring sufficient evidence to demonstrate that the large-scale
fossil fuel user materially increased the risk of climatic impacts, with
resulting harm, by their greenhouse gas contributions. However, the
Australian Courts are yet to embrace the United Kingdom approach to
exceptional cases.
88
319
Assuming that the traditional standard of proof would apply to climate torts
in Australia, the establishment of a causative link between the harm suffered
and the identifiable increased risk by the defendant will be highly
problematic. It is possible that some of these difficulties in establishing
causation may be lessened where the plaintiff is the government:
when states bring tort claims, the plaintiffs have almost infinite lifespans
and cover large amounts of territory, allowing for an aggregation of effects
over both space and timeThe aggregation of harms makes it easier to
rule out confounding factorsaggregation allows plaintiffs to better
establish that some present harms from climate change exist in the broader
geographic and temporal range.94
91
Orica Limited and Anor v CGU Insurance Limited [2003] NSWCA 331 at [90] per Spigelman CJ;
Bendix Mintex Pty Ltd v Barnes (1997) 42 NSWLR 307 at 312320 per Mason P; Wallaby Grip (BAE)
Pty Ltd (in liq) v Macleay Area Health Service (1998) 17 NSWCCR 355 (CA).
92
Seltsam Pty Ltd v McGuiness (2000) 49 NSWLR 262.
93
Ibid at 280 per Chief Justice Spigelman.
94
David A. Grossman, 'Warming Up to a Not-So-Radical Idea: Tort-Based Climate Change
Litigation' (2003) 28 Colombia Journal of Environmental Law 1 at 24-25.
320
Plaintiffs may also benefit from the use of class actions where there are a
number of actions with common issues of law or fact.95 Although the joining
of such actions would not lessen the burden of establishing causation, they
could assist through the pooling of resources towards obtaining necessary
scientific and factual evidence regarding the defendants contribution to the
harm suffered. Nevertheless, the probability of success of tortious actions for
climate harm would be enhanced if Australian Courts were persuaded that
climate change is an exceptional circumstance meriting the relaxation of the
strict but for test and the adoption of the United Kingdom approach. For
this to occur, the Court must be persuaded that there are good public policy
reasons for the extension of liability under a less stringent causative
approach.96 In the absence of such judicial developments, the difficulties in
establishing causation appear, at this point in time, insurmountable.
95
See Damien Grave and Ken Adams, Class Actions in Australia (2005) Sydney, Lawbook Co and
John Taberner, Class Actions and Climate Change (6 September 2007) Freehills,
www.freehills.com.au/publications/publications_6950.asp at 14 June 2008.
96
Section 11(2) Civil Liability Act 2003 (Qld). Similar provisions have been enacted in s45 Civil Law
(Wrongs) Act 2002 (ACT), s5D Civil Liability Act 2002 (NSW), s13 Civil Liability Act (Tas), s51
Wrongs Act 1958 (Vic), s5C Civil Liability Act 2002 (WA), s34(2) Wrongs Act 1936 (SA).
97
Ecologically Sustainable Development Steering Committee, 'National Strategy for Ecologically
Sustainable Development' (Australian Government, 1992), Part 1; Australian Government,
'Intergovernmental Agreement on the Environment' (1992).
321
The interaction of the precautionary principle with the common law standard
of proof could operate to lower the threshold at which a risk of harm from
greenhouse gas emissions becomes probable. 102 However, until such time as
the Court considers this issue, the interaction of these principles is largely
conjecture. Moreover, even as the threshold for establishing a causative link
decreases, the risk of the Court imposing indeterminate liability increases.103
This policy issue may operate to persuade the Court that it is not appropriate
to impose indeterminate private liability for these forms of global public
harm.
98
Ibid.
Ibid.
100
David Freestone and Ellen Hey, 'Origins and Development of the Precautionary Principle' in David
Freestone and Ellen Hey (eds), The Precautionary Principle and International Law (1996) The
Netherlands, Kluwer Law International, 3 at 13.
101
Nicolas De Sadeleer, Environmental Principles: From Political Slogans to Legal Rules (2002)
New York, Oxford University Press at 160.
102
Jacqueline Peel, n76, 155.
103
Perre v Apand Pty Ltd (1999) 198 CLR 180 at 221 (McHugh J ).
99
322
The Court must consider whether other causes have intervened to break the
chain of causation.
phenomenon of nature not against unusual ones.105 Defendants may raise the
argument that climate change, and the resulting impacts, are out of the
ordinary and that all ordinary precautions have been taken against
foreseeable harm.
worldwide it might be argued that those other greenhouse gas emissions were
intervening events, breaking the chain of causation and that those emitters
were in fact the last wrongdoers. 107 The success of such arguments would
depend upon the prevailing judicial attitudes to the establishment of
causation.
104
105
323
floodgates concerns;110
public/private issues: who can better avoid the loss and who should
bear the risk for the public harm of climate change?
the availability (or lack of) alternative remedies under common law
and statute; and
108
109
324
As noted, evidence regarding the potential physical, economic and social impacts
of climate change is growing. Recent reports from the IPCC emphasise the
potential threats from climate change to our modern society. 112
Moreover,
regional reports are now emerging which predict the specific impacts on
Australian societies from adverse climatic changes. 113
Such climate-related
investment advice;
There is a general legal obligation to exercise reasonable skill and the care in the
provision of professional advice. 117 This may arise as a term of a contract; it may
arise as a statutory duty; it may arise as a liability in tort. Consequently, advisors
should be taking into account the risks of increased temperatures, droughts and
112
325
incidences of severe weather events and the risk of failure of buildings from
defective building design and construction. They should also be considering the
financial implications of future regulatory regimes which restrict the use of
carbon emitting technologies. A failure to take these risks into consideration may
give rise to legal liabilities for the provision of negligent information or advice. 118
118
326
At common law, evidence of general practice within the professional field will be
a relevant consideration by the Court in its determinations of the standard of care
owed by the profession. 123
Where harms relating to climate change involve only a risk of physical damage,
or property devaluation, then no physical harm will be involved and this will be
pure economic loss. This could occur in circumstances of negligent
misrepresentation of the risks of property flooding, negligent performance of
services in omitting to address climate risks, defective goods, and property
damage. As discussed above, where the harm caused by the emitting industry
results in pure economic loss then recovery will be permitted only in limited
circumstances. 124 The multi-factorial approach of the Court will assess a range of
legal and policy principles including the defendants control of the circumstances
giving rise to the harm and the vulnerability of the plaintiff in terms of their
inability to protect themselves from that harm. 125
123
Edward Wong Finance Co Ltd v Johnson Strokes and Master [1984] AC 296; Heydon v NRMA
Ltd (2000) 51 NSWLR 1. Christian Witting, Liability for Negligent Misstatements (2004) New York,
Oxford University Press at 13.10.
124
Perre v Apand Pty Ltd (1999) 198 CLR 180.
125
Sullivan v Moody (2001) 207 CLR 562; 183 ALR 404 at [48]-[49]; Rogers v Whitaker (1992) 175
CLR 479; Bryan v Maloney (1995) 182 CLR 609; Hill v Van Erp (1997) 188 CLR 159; 142 ALR 687,
Woolcock Street Investments Pty Ltd v CDG Pty Ltd (2004) 216 CLR 515; Esanda Finance
Corporation v Peat Marwick Hungerfords (1997) 188 CLR 241. See also Jane Stapleton, The
Golden Thread at the Heart of Tort Law: Protection of the Vulnerable, (2003) 24 Australian Bar
Review 41.
126
Voli v Inglewood Shire Council (1963) 110 CLR 74 at 84.
327
with clients that the product, such as the designed building, is fit for its intended
purpose.127
increased risk of damage from more intense tropical cyclones, storms and
stronger winds and from increased cracking of drier soils and ground
movement impacting on foundations and pipe work;
Accordingly, the risks posed by climate change require architects, engineers and
developers to give greater consideration to the location, design and construction
of buildings and to take into account these likely impacts and the risks that they
pose to the constructed asset. The location of the building should take into
127
Doug Rea Enterprises Pty Ltd v Hymix Australia Pty Ltd (1988) 4 BCL 67; s71 Trade Practices
Act 1974 (Cth), Pt 4 Domestic Building Contracts Act 2000 (Qld), Pt 2C Home Building Act 1989
(NSW), Pt VA Building Act 1972 (ACT), s8 Domestic Building Contracts Act 1995 (Vic), s32
Building Work Contractors Act 1995 (SA).
128
Australian Greenhouse Office, 'An Assessment of the Need to Adapt Buildings to the Unavoidable
Consequences of Climate Change' (Report to the Australian Greenhouse Office, Department of the
Environment and Water Resources, BRANZ, 2007) at 3.
129
Ibid.
328
account the risk of inundation and vulnerability to severe storms.130 The selection
of building materials should take into account the possibility of heat stress and
thermal movement. Buildings should also be designed with additional wind
loading as a possibility from severe weather events. 131 Foundations should be
deeper to counteract increases in local erosion and soil instability from thermal
movement. Stormwater and drainage system designs should take into account
the possibility of rising sea levels and water tables. Finally, these buildings
should be designed for the future carbon constrained environment using energy
efficient design and components. 132
130
J Bengtsson, R Hargreaves and I.C. Page, 'Assessment of the Need to Adapt Buildings in New
Zealand to the Impacts of Climate Change' (Study Report No 179 (2007), BRANZ, 2007).
131
Australian Greenhouse Office, n128, 4.
132
Energy efficiency requirements are imposed in many of the States and Territories but there is not
yet a unified national approach; see Building Code of Australia 2006, Volume One Energy Efficiency
Provisions, Section J. The Building Code 2003 applied energy efficiency standards to housing. BCA
2006 applies energy efficiency standards to building classes 2-9. For a brief overview of the different
jurisdictional approaches see http://www.houseenergyrating.com/ at 15 June 2008. The National
Framework for Energy Efficiency is intended to achieve a nationally consistent legislated regime,
http://www.nfee.gov.au/buildings.jsp?xcid=121 at 15 June 2008.
329
In the case of MGICA (1992) Ltd v Kenny & Good Pty Ltd137 a mortgage insurer
sued in negligence and for misleading conduct for the overvaluation of a
property. The Court held that the valuation was so far removed from the true
value as to be misleading, since:
the supply of [the] valuation report ..conveyed representations, not only that the
opinions expressed in them were held, but also (a) that the opinions were based on
133
330
reasonable grounds; (b) that they were the product of the exercise of due care and
skill; and (c) that they were, after making due allowance for their nature as opinions
as to the market value of real estate as at a particular time, safe to be relied upon
and not outside the range of latitude properly to be allowed to them.138
Accordingly, both surveyors and valuers are, prima facie, obliged to take into
account the likely impacts of climate change in the provision of their professional
information or advice.
it was reasonable for the plaintiff to act in reliance of that advice. 139
Where, for example, the property is a low-lying coastal property which will be at
risk of inundation from rising sea-levels, then Councils should exercise caution in
advising whether the property is at risk of flooding.
138
331
The scope of potential local Council liability has been narrowed significantly by
statutory exemptions and limitations as part of the statutory tort law reforms. In
the establishment of a duty of care and in its considerations of whether that duty
has been breached, the Court will take into account the limited resources of the
Council, in the context of the wider range of responsibilities of the Council.140
Moreover, the statutory tort law reforms provide that an act or omission of the
authority does not constitute a wrongful act or omission unless it was so
unreasonable that no public authority could properly consider it to be a
reasonable exercise of its functions:
(1)
(2)
For the purposes of the proceeding, an act or omission of the authority does not
constitute a wrongful exercise or failure unless the act or omission was in the
circumstances so unreasonable that no public or other authority having the functions
of the authority in question could properly consider the act or omission to be a
reasonable exercise of its functions.141
Consequently, the Courts will apply the objective test of the reasonable council
and will consider whether such a reasonable council in the same position would
take the same course of action. Accordingly, the circumstances in which a local
council may be held liable in negligence have been significantly curtailed by the
enactment of these tort law reforms. Nevertheless, there may be circumstances in
which a local council is held liable for the provision of negligent advice where
the information regarding the flooding risks is reasonably available to the
140
Section 35 Civil Liability Act 2003 (Qld), s42 of the Civil Liability Act 2002 (NSW), s38 of the
Civil Liability Act 2002 (Tas), s110 of the Civil Law (Wrongs) Act 2002 (ACT) and s5W of the Civil
Liability Act 2002 (WA). Section 83 of the Wrongs Act 1958 (Vic) is similar but excludes (b). Richard
Douglas, Gerard Mullins and Simon Grant, The Annotated Civil Liability Act 2003 (QLD) (2004)
Chatswood, LexisNexis Butterworths at 35.5.
141
Section 35 Civil Liability Act 2003 (Qld). Similar provisions have been adopted in ss 43 and 44 of
the Civil Liability Act 2002 (NSW) and s111 of the Civil Law (Wrongs) Act 2002 (ACT). Section 84
of the Wrongs Act 1958 (Vic) is similar but with additional exemptions. Richard Douglas, Gerard
Mullins and Simon Grant, The Annotated Civil Liability Act 2003 (QLD) (2004) Chatswood,
LexisNexis Butterworths at 36.6.
332
Council and the advice is not provided in good faith following reasonable
inquiries.142
Therefore, in terms of the future risks of climate change, legal professionals have
a duty to warn their clients about the inherent risks of a transaction. 146 This
includes advising clients in relation to the likely physical impacts on acquired
assets and on the regulatory developments that may restrict the ability of the
client to fully exploit the opportunities associated with the property.
142
Mid Density Developments Pty Ltd v Rockdale Municipal Council (1993) 44 FCR 290. See also
the statutory exemption from liability for advice furnished in good faith e.g. s733, Local Government
Act 1993 (NSW).
143
Stephen Walmsley, Alister Abadee and Ben Zipser, Professional Liability in Australia (2002)
Pyrmont, Lawbook Co at 82-83. Maguire v Makaronis (1997) 188 CLR 449.
144
Henderson v Merrett Syndicates Ltd [1995] 2 A.C. 145 at 205F per Lord Browne-Wilkinson.
145
Montague Mining Pty Ltd v Gore [1998] FCA 1334.
146
Capebay Holdings Pty Ltd v Sands [2002] WASC 287 (4 December 2002) at [92] per Justice
Pullin; C W Dixey & Sons Ltd v Parsons (1964) 192 EG 197; Stephen Walmsley, Alister Abadee and
Ben Zipser, Professional Liability in Australia (2002) Pyrmont, Lawbook Co at 317.
333
Company directors have a duty to manage the business of the company in the
best interests of the company. 149 There is a duty imposed on directors of
companies to take reasonable care and exercise diligence in the performance of
their office.150 In the making of business decisions, directors must also reasonably
inform themselves about the relevant subject-matter.151 Accordingly, there is an
obligation that directors keep themselves informed as to the likely impacts of
climate change on the company and the steps that can be taken to minimise risks
to the company.152 The duties of a director include an obligation to take steps to
avoid significant liabilities from future regulatory greenhouse regimes such as
cap and trade initiatives and other carbon constraints.
It also extends to
147
This emphasises the importance of proper scoping of professional work with clients in order to
expressly specify the extent to which potential climate change impacts predicted by the IPCC will be
taken into account in such professional advice.
148
Rosemary Lyster, 'Chasing Down the Climate Change Footprint: Forces Converge' (2007) 24(4)
Environmental and Planning Law Journal 281 at 309.
149
Section 181 Corporations Act 2001 (Cth) requires Directors to exercise their powers and discharge
their duties in good faith and in the best interests if the company.
150
Section 180 Corporations Act 2001 (Cth) requires Directors to exercise due care and diligence in
the discharge of their duties.
151
Section 180(2) Corporations Act 2001 (Cth). See also Daniels (formerly practising as Deloitte
Haskins and Sells) v Anderson (1995) 37 NSWLR 438.
152
In the United Kingdom, directors must also have regard to the impact of the companys operations
on the community and the environment, section 173(d) Company Law Reform Act 2006 (UK).
334
disclose its annual greenhouse gas emissions and to take action to reduce its
carbon footprint. 153 Failure of a company to respond properly, or to action such
resolutions, could also lead to additional actions and liabilities of the company
and its directors.154
Accordingly, in climate suits, it could be argued that the loss or harm of the
plaintiff was caused partly by the fault of the plaintiff.
As noted by one
commentator, we are all potentially responsible under tort law for our continued
153
Christina Ross, Evan Mills and Sean Hecht, 'Limiting Liability in the Greenhouse: Insurance RiskManagement Strategies in the Context of Global Climate Change' (2007) 26A Stanford
Environmental Law Journal 251 at 264. For a discussion of disclosure obligations in the US, see
Jeffrey A. Smith and Matthew Morreale, 'The Fiduciary Duties of Officers and Directors' in Michael
B. Gerrard (ed), Global Climate Change and U.S. Law (2007) Chicago, American Bar Association,
497.
154
Rosemary Lyster, ,n148, 315.
155
Joslyn v Berryman (2002) 214 CLR 552.
156
Azzopardi v State Transport Authority (Rail Division) (1982) 30 SASR 434.
157
Joslyn v Berryman (2002) 214 CLR 552; Davies v Swan Motor Company (Swansea) Limited [1949]
2 KB 291 at 326 per Lord Denning; Stapley v Gypsum Mines Ltd [1953] AC 663 at 682.
158
Section 24 Civil Liability Act 2003 (Qld), Similar provisions have been enacted in s47 Civil Law
(Wrongs) Act 2002 (ACT), s5S Civil Liability Act 2002 (NSW), s4(1) Civil Liability Act 2002 (Tas),
s63 Wrongs Act 1958 (Vic).
335
emissions of greenhouse gases.159 This could be based on the plaintiffs own acts
of emitting, or causing to be emitted, greenhouse gases through their
consumption of goods and services thereby adding to the cumulative risk of
adverse climate change. However, this submission is less persuasive where the
plaintiff can show that they have taken steps to minimise or offset their own
emissions.160
An alternative defence could be raised of volenti non fit injuria where the
plaintiff can be shown to have freely accepted the risk of injury from climate
change, through their consumption of goods and services, with the full
knowledge of the risk that the emission of greenhouse gases would result in
climate change and harm. 161 The evidence must support an inference that the
plaintiff consented to the risk of injury, by the defendant, and to the lack of
reasonable care which would create that risk of harm. 162 This argument could be
weakened where it can be demonstrated that there was no free choice in using
those goods and services as there were no reasonably available, low-emission,
alternatives at the time.163
336
gases and resulting forcing effect in the climate system, it will be a challenge to
identify the point in time at which the action accrued.
The most likely causes of action in nuisance relate to flooding and the actions of
the local authority regarding the construction and maintenance of sea walls and
other coastal protection devices and actions taken to address rising sea levels and
the risks of storm surges. Nuisance actions against private actors could also be
envisaged as property owners take steps to protect themselves from flooding,
storm damage and bushfires and, in doing so, inadvertently interfere with
neighbouring properties.
Nuisance actions against large-scale emitters could also be considered. The main
challenge in developing such actions relates to the delayed effect between the
release of the emissions and the sufferance of the interference. Greenhouse gas
165
Sedleigh-Denfield v OCallaghan [1940] AC 880; Lord Mayor, Aldermen and Citizens of the City
of Manchester v Farnworth [1930] AC 171; Pwllbach Colliery Co Ltd v Woodman [1915] AC 634;
Hargrave v Goldman (1963) 110 CLR 40; Sturges v Bridgman (1879) 11 Ch D 852.
337
emissions accrue in the atmosphere for significant timescales before the effects of
climate change become apparent.
plaintiff seeks to bring a nuisance action for interference suffered today that is
allegedly caused by the historic greenhouse gas emissions of the defendant(s).
A Elements of Nuisance
Acts or omissions may amount to both public and private nuisances. Nuisance
was described in Hargrave v Goldman as the unreasonable interference with a
persons use or enjoyment of land, or some right over, or in connection with it.169
Accordingly, a successful cause of action in nuisance must establish that:
166
338
In order to bring an action in private nuisance, the plaintiff must have a legally
recognised interest in the land or rights to occupy or exclusively possess the
land.174 Occupation, by itself, is not sufficient to give rise to a right to sue and the
plaintiff must have exclusive possession.175 Accordingly, claims in nuisance may
be brought by land owners, mortgagors, tenants and licensees.
A successful nuisance action must relate the impacts of climate change to some
physical or substantial and unreasonable interference with the use and enjoyment
of the specific property. 176 Given this, most cases of climate related nuisance
claims will be based on actual damage to property. 177 The interference must be so
substantial as to cause harm or material damage to the land or substantial
interference with the comfort and convenience of the occupier of the land. 178
Where the otherwise insubstantial acts of one or more defendants together
171
339
As noted, the disturbance of rights must be connected with the land and
recognised by law. In the case of Phipps v Pears, it was held that there was no
recognised easement in law to protect a property from the adverse effects of the
weather. As commented by the Court:
every man is entitled to pull down his house if he likes. If it exposes your house to
the weather, that is your misfortune. It is no wrong on his part. Likewise every man
is entitled to cut down his trees if he likes, even if it leaves you without shelter from
the wind or shade from the sun.180
The Courts have recognised interference based on noise, 181 smell,182 and vibration183
impacts on the property but it seems unlikely that temperature would be
considered an actionable interference. A claim relating to the detrimental effects
of increased air temperature was considered in the case of Robinson v Kilvert.184
In that case there was a claim in nuisance by the occupier of premises where
paper was manufactured. The defendant had installed heating equipment that led
to increased air temperatures which had detrimental effects on the paper. The
Court found that this was not sufficiently noxious to amount to a nuisance and
that the harm was caused due to the particular sensitivity of the plaintiffs choice
of manufacturing process. 185
179
Bonnici v Ku-Ring-Gai Municipal Council [2001] NSWSC 1124; (2001) 121 LGERA 1 at [196];
Blair v Deakin (1887) 121 LGERA 1.
180
Phipps v Pears [1965] 1 QB 76; [1964] 2 All ER 35 at 38 per Lord Denning MR.
181
Vincent v Peacock [1973] 1 NSWLR 466.
182
Bamford v Turnley (1862) 3 B&S 62.
183
Sturges v Bridgman (1879) 11 Ch D 852.
184
Robinson v Kilvert (1889) 41 Ch D 88.
185
Ibid.
340
186
In some Australian jurisdictions public nuisance may also attract criminal sanctions, see for
example, section 300 Criminal Code 1995 (Qld) and the various State environmental protection
legislation.
187
Wallace v Powell [2000] NSWSC 406; (2000) 10 BPR 18,481 per Chief Justice Hodgson at [32];
A-G v PYA Quarries Ltd [1957] 2 QB 169 at 184 per Lord Justice Romer.
188
Criminal Code 1995 (Qld) s300. Maximum penalty, three years imprisonment.
189
For example, Attorney-General; Ex rel Pratt v Brisbane City Council [1988] 1 Qd R 346; (1987)
63 LGRA 294.
190
Ball v Consolidated Rutile Ltd [1991] 1 Qd R 524; Deepcliffe Pty Ltd v The Council of the City of
the Gold Coast [2001] QCA 342 (31 August 2001).
341
footpaths and waterways as well as pollution of public waters.191 Public rights are
not necessarily related to land and public nuisances:
may be established in the case of exposing in public a person with an infectious
disease, selling food unfit for human consumption, obstructing a highway, or
allowing a house near a highway to be ruinous. 192
191
Walsh v Ervin (1952) VLR 361; Tate & Lyle Industries Pty Ltd v Greater London Council [1983]
2 AC 509; Railtrack plc v Mayor & Burgesses of London Borough of Wandsworth [2001] EWCA Civ
1236; The Wagon Mound (No 2) [1967] 1 AC 617.
192
Kent v Minister for Works (1973) 2 ACTR 1; 21 FLR 177 at 204 per Justice Smithers.
193
Walsh v Ervin (1952) VLR 361 at 371 per Justice Scholl.
194
Ibid.
195
Ball v Consolidated Rutile [1991] 1 Qd R 524. In that case, the pecuniary loss was held to not be
sufficient for standing.
196
Elston v Dore (1982) 149 CLR 480.
342
..
for the purpose of ascertaining whether as here the plaintiff can establish a private
nuisance I think that nuisance is sufficiently defined as a wrongful interference with
another's enjoyment of his land or premises by the use of land or premises either
occupied or in some cases owned by oneself. The occupier or owner is not an
insurer; there must be something more than the mere harm done to the neighbour's
property to make the party responsible. Deliberate act or negligence is not an
essential ingredient but some degree of personal responsibility is required, which is
connoted in my definition by the word use.198
Whether an interference with the use and enjoyment of land is substantial will be
determined by the Court in accordance with reasonable standards for the use and
enjoyment of the land in question. 199 This will be assessed in light of the
character, duration and time of the interference and the effect of the interference
of the plaintiff:
what are reasonable standards must be determined by common sense, taking into
account relevant factors, including what the Court considers to be the ideas of
reasonable people, the general nature of the neighbourhood and the nature of the
location at which the alleged nuisance has taken place, and the character, duration
and time of occurrence of any noise emitted, and the effect of the noise.200
197
343
defendant, but instead by natural events. However, there is judicial precedent for
defendants to be held liable in nuisance where a hazard occurs on their land, be it
caused by a natural event or man-made, where the defendant had knowledge of
the hazard and took no steps to prevent interference to the plaintiff.
201
Private owners and public authorities may be liable for interference caused by the
construction of protective works that cause damage or flooding to adjoining land.
Nuisance claims relating to flooding and drainage are reasonably common
although the legal outcome is not always clear.
In Sedleigh-Denfield v
O'Callaghan, the defendant was held liable in nuisance for the negligent
construction of an artificial work which resulted in flood waters flowing on to the
plaintiff's land.203 In contrast, in the case of Elston v Dore the defendant filled an
artificial drain which operated to remove floodwater from the plaintiffs land.204
This was held to not constitute a nuisance as it did not cause the land to be
damaged, invaded or interfered with. The damage suffered was held to be due to
the natural deficiency of the appellants land. 205
201
Leakey v National Trust [1980] QB 485; Delaware Mansions Ltd v Westminster City Council
[2001] 4 All ER 737. Cf Goldman v Hargrave [1967] 1 AC 645 where the defendant failed to
extinguish a fire in a tree on the property caused by lightning.
202
The Wagon Mound (No 2) [1967] 1 AC 617; Delaware Mansions Ltd v Westminster City Council
[2001] 4 All ER 737
203
Sedleigh-Denfield v OCallaghan [1940] AC 880.
204
Elston v Dore (1982) 149 CLR 480.
205
Ibid.
344
In proving that unlawful interference has occurred in the climate suit, the
principle of give and take, live and let live will be applied by the Courts.206 Not
all interference will constitute a nuisance and the utility of the defendants
activities will be balanced against the general public interest. The onus of proof
resides with the defendant to show the reasonableness of their acts in light of the
interference. The defendant is under an obligation to do what is reasonable in all
of the circumstances taking into account the nature of the activities, the
characteristics of the actual defendant and, where relevant, the availability of
financial resources for the defendant to address the risk. 207
If there are reasonably practical alternatives, which would not involve excessive
expenditure, and would prevent the interference then the use may be considered
unreasonable.208 For example, the ability to utilise alternative fuel sources, CCS
technology or to take steps to offset the greenhouse gas emissions of an industrial
plant may be considered by the Court. It may be argued that these technologies
are not yet fully mobilised for commercial use and involve significant start-up
costs.209 Nevertheless, pilot programs to trial these technologies are possible and
the associated costs will be considered in the context of the general economic
position of the defendant. In the case of large-scale emitters, with significant
annual profits, the Court may well consider the development and use of
alternative technologies to be reasonable given all of the circumstances.
206
345
for example the relevant Local Government Act, specifically authorises the
specific activities that gave rise to the nuisance. 211 The burden of proof will fall
on the public authority to show that it was the intention of the statute to permit
the harm suffered; namely, interference with private rights to the use and
enjoyment of land.212 Where the harm may have been avoidable but the cost of
avoiding harm arising from the only practicable means of exercising that
authority was prohibitive then the authority will not be held liable for the harm. 213
211
Metropolitan Asylum District v Hill (1881) 6 App Cas 193; Allen v Gulf Oil Refining Ltd [1981]
AC 1001.
212
Cohen v City of Perth (2000) 112 LGERA 234; Kempsey Shire Council v Lawrence (1996) Aust
Torts Reports 81-375.
213
Bonnici v Ku-Ring-Gai Municipal Council [2001] NSWSC 1124; (2001) 121 LGERA 1 per
Sperling J at [191].
214
Madell v Metropolitan Water Sewerage and Drainage Board (1936) 36 SR 68 at 72-73 per Justice
Davidson as quoted with approval in Symons Nominees Pty Ltd v Road & Traffic Authority New
South Wales (1991) Aust Torts Reports 81-081 by Justice Brownie.
346
The Court held that these were non-justiciable political questions to be addressed
by the political branches and commented that:
the scope and magnitude of the relief Plaintiffs seek reveals the transcendently
legislative nature of this litigation. Plaintiffs ask this Court to cap carbon dioxide
emissions and mandate annual reductions of an as-yet-unspecified percentage
Because resolution of the issues presented here requires identification and
balancing of economic, environmental, foreign policy and national security interests
215
For a review of these cases see Lee A. DeHihns III, 'Climate and the Court' (2008) 25(1) The
Environmental Forum 22.
216
State of Connecticut et al v American Electric Power Company et al 406 F. Supp. 2d 265; 2005
U.S. Dist. LEXIS 19964; 35 ELR 20186 (United States District Court For the Southern District of
New York,15 September 2005). For a detailed discussion of this case see Dawn T. Mistretta and
Stanley B. Green, 'Global Warming Litigation: Cooling Down or Heating Up in the Private Sector?'
(2006) Winter 2006 Toxic Torts and Environmental Law 1.
217
The action was brought by the States of Connecticut, New York, California, Iowa, New Jersey,
Rhode Island, Vermont, Wisconsin and the City of New York.
218
State of Connecticut et al v American Electric Power Company et al 406 F. Supp. 2d 265 at 268
and 270.
219
Ibid, 268.
347
220
221
348
the actual or imminent and therefore are insufficient for the purposes of
standing.226 This finding was upheld on appeal where the Court commented
moreover, Korsinsky has failed to sufficiently allege that his injury is likely
to be redressed by any relief the district court could grant.227
226
Ibid, [8].
Korsinksky v United States EPA, 192 Fed. Appx. 71 (United States Court of Appeals for the
Second Circuit, 10 August 2006) at 72.
228
In terms of damages for negligence advice, the Court will consider how much detriment the
plaintiff has suffered as a result of the failure to provide the correct advice; Commonwealth v Amann
Aviation Pty Ltd (1991) 174 CLR 64 and Gates v City Mutual Life Assurance Society Ltd (1986) 160
CLR 1.
229
Moss v Christchurch Rural District Council [1925] 2 KB 750; the award of an injunction is
discretionary and will depend upon the nature of the nuisance, the public interest and other factors.
The award of an injunction will be more likely where the nuisance is of a continuing nature. Miller v
Jackson [1977] QB 966.
230
Hunter v Canary Wharf Ltd & London Docklands Development Corporation [1997] UKHL 14;
[1997] AC 655; Premier Building and Consulting Pty Ltd v Spotless Group Ltd [2007] VSC 377.
227
349
The effectiveness of these remedies in addressing the loss and damage from the
impacts of climate change is debatable. Such actions are valuable in their ability
to draw attention to the current deficiencies of the Australian regulatory
environment in addressing climate related harm. However, regardless of the
remedy of the Court, climate change will continue to occur and harm will
continue to ensue. Even if an injunction is awarded, this will only mitigate some
of the global emissions and will not halt climate change entirely. In terms of the
award of damages, it is questionable whether the quantum awarded could (or
should) ever fully compensate the plaintiff for the losses resulting from the
unlimited scope of impacts of global climate change.
The object of insurance has traditionally been to protect each individual against
an uncertain loss by pooling risks across a diverse group of individuals who pay
an annual premium towards the pools overall predicted losses in return for
compensation for claimable events.231
231
Gary S. Guzy, 'Insurance and Climate Change' in Michael B. Gerrard (ed), Global Climate Change
and U.S. Law (2007) Chicago, American Bar Association, 541 at 542.
350
Whether a particular risk of loss is insurable is dependant upon the loss meeting
the following conditions for insurability:
The increasing frequency and intensity of climate change impacts will result in a
higher demand for insurers to transfer the risk of loss from climate change events.
The insurance industry can, in theory, provide coverage against a wide range of
climate and weather related impacts as well as coverage for climate related losses
through director and officer cover and health and life insurance cover. However,
the increasing levels of risk of loss associated with those climate change events
will directly influence the availability, price and conditions to be imposed on any
climate change insurance. 234
232
REO, 'In the Front Line: The Insurance Industry's Response to Climate Change' (F&C Investments,
2007) at 4.
233
Christopher Walker and Brian Thomas, 'Protecting Your Carbon Asset: Risk and Insurance in the
Greenhouse Gas Markets' in Kenny Tang (ed), The Finance of Climate Change: A Guide for
Governments, Corporations and Investors (2005) London, Risk Books, 293 at 298.
234
Gary Guzy, n231, 546.
351
Climate change has been described as having the potential to bankrupt the global
insurance industry.
235
235
Sverker C. Jagers, Matthew Paterson and Johannes Stripple, 'Privatizing Governance, Practicing
Triage: Securitization of Insurance Risks and the Politics of Global Warming' in David L. Levy and
Peter Newell (eds), The Business of Global Environmental Governance (2005) Cambridge, MIT Press,
249 at 254.
236
Ibid; REO, n232,15.
237
Gary S. Guzy, n231, 547. Evan Mills, Richard J Jnr Roth and Eugene Lecomte, 'Availability and
Affordability of Insurance Under Climate Change: A Growing Challenge for the U.S.' (CERES, 2005)
at 2.
238
Karl Sullivan, Issues: Residential Flood Insurance (Insurance Council of Australia),
http://www.insurancecouncil.com.au/Residential-Flood-Insurance/default.aspx at 15 June 2008.
239
Ibid.
240
Jennifer Hill, New Houses in Flood Areas Uninsurable (15 February 2008, Planet Ark)
http://www.planetark.com/avantgo/dailynewsstory.cfm?newsid=46972 at 15 June 2008.
352
So what is the role for insurers amidst all of these potential climate change losses?
It is clear that the insurance sector has the potential to play a significant role in
dealing with the future affects of adverse climate change. The industry has been
aware of the enormous financial implications of climate change for some time
now. Whether the insurance industry is prepared to respond to consumer demand
and insure these growing climate risks will depend on the extent to which it is
prepared to evolve to embrace these new liabilities and to utilise innovative tools
such as weather derivatives, catastrophe bonds and micro-insurance to manage
that risk. 241 In the absence of strong regulation, the insurance industry is in a
position to exercise considerable influence on public policy to reduce greenhouse
gas emissions, promote adaptation (including use of improved building design
and building materials) and discourage inappropriate land use in vulnerable
areas.242 Insurers may also choose to incentivise good practice to reduce global
emissions by facilitating investment in renewable energy and emission reduction
programs and offering preferential premium rates to sustainable buildings, hybrid
cars and energy efficient businesses. 243
241
Andrew Dlugolecki and Mojdeh Keykhah, 'Climate Change and the Insurance Sector: Its Role in
Adaptation and Mitigation' in Kathryn Begg, Frans Van Der Woerd and David L. Levy (eds), The
Business of Climate Change: Corporate Responses to Kyoto (2005) Sheffield, Greenleaf Publishing,
147 at 158, 160; Sverker C. Jagers, Matthew Paterson and Johannes Stripple, n235, 259-260.
242
Evan Mills, 'From Risk to Opportunity: 2007 Insurer Responses to Climate Change' (CERES, 2007)
at 35. See also Evan Mills, 'From Risk to Opportunity: How Insurers Can Proactively And Profitably
Manage Climate Change' (CERES, 2006).
243
Mills 2007, ibid, 2-3.
353
The purpose of this chapter was to consider the role of the common law
principles of negligence and nuisance in addressing climate related harms from
large-scale emitters in Australia. At this embryonic stage of climate change torts,
both in Australian and overseas jurisdictions, it is largely a theoretical exercise in
assessing the likely probabilities of success of tortious actions. So much will be
dependent upon the character of the defendant, the nature of the harm suffered
and the specificity of the scientific evidence available. Critically, it will also
depend upon the judicial philosophy of the residing Court in terms of their
commitment to developing the common law to remedy these new emerging
climate injustices.
354
uncertainty is significant and the challenges of meeting the legal test of causation
enormous.
The likelihood of the Court indulging such tenuous claims of a causative link
between the emissions and harm suffered is doubtful. Moreover, the judiciary
may well consider that it is not its proper role to establish such wide private
liability for harm that is caused through the global, public, phenomenon of
climate change.
floodgates concerns, and the proper role of the legislature in laying down the
law may well operate to prevent a finding of any liability in negligence.244 As
noted in the decision of Cambridge Water:
as a general rule it is more appropriate for strict liability in respect of operations of
high risks to be imposed by Parliament, than by the courts. If such liability is
imposed by statute, the relevant activities can be identified, and those concerned can
know where they stand. Furthermore, statute can where appropriate lay down
precise criteria establishing the incidence and scope of such liability. 245
Despite these issues, climate change suits are likely to become more frequent in
the Australian setting. In the first instance, defendants are likely to be public
authorities rather than private persons due to their temporal longevity and the
perception that these authorities have greater financial resources at their disposal.
However, it is these very public entities that are provided with increased legal
protections, under the statutory reforms to the Australian tort laws, making
findings of liability against them all the more remote.
244
James Goudkamp, The Spurious Relationship Between Moral Blameworthiness And Liability for
Negligence (2004) Melbourne University Law Review 11.
245
Cambridge Water Co. Ltd v Eastern Counties Leather plc [1994] 2 AC 264 per Lord Goff of
Chieveley at [76].
355
threat to the well being of the general community. However, the inertia present
in the climate system prevents liability being attributed to those current emitters
of greenhouse gases. Greenhouse gases will remain in the atmosphere for long
time-scales and current emissions will increase the existing concentrations of
gases. 246 Although the continuation of emissions will contribute to global
warming, strictly speaking, the interference suffered now cannot be causally
related to current emissions but is the result of those past emissions. 247 Therefore,
true responsibility for such harm resides with our historic large-scale industrial
emitters.
In an ideal world, the common law of tort would not be used as a primary tool for
achieving mitigation of, and adaptation to, the impacts of climate change. As a
regulatory tool, tortious actions for climate harm are expensive and unruly and
the outcomes are indeterminate. As noted by one commentator:
246
IPCC, WMO and UNEP, 'Climate Change: The IPCC Scientific Assessment, Report Prepared for
Intergovernmental Panel on Climate Change by Working Group I' (Cambridge University Press, 1990)
at xi.
247
In the United Kingdom, where there are multiple contributors that together create the nuisance,
each of the contributors is liable for the cumulative effects of their polluting actions. Pride of Derby
and Derbyshire Angling Association Ltd v British Celanese [1953] Ch 149.
356
the ad hoc nature of court proceedings, the expense involved in bringing them, and
the uncertainty as to their results means that, in the long-term, litigation alone is
unlikely to be an optimal approach for bringing about effective action to address
climate change.248
Given the prevailing uncertainties and weaknesses in tortious actions for climate
change, the common law is not the most appropriate tool for achieving necessary
behavioural changes to reduce emissions and avoid climate harms. In addressing
climate change, the proper role of the common law should be to act as a
complementary measure against a background of strong regulatory action.
However, it is highly questionable whether the common law can adapt
sufficiently to address the current black hole in the regulatory web.
249
248
Jacqueline Peel, 'The Role of Climate Change Litigation in Australia's Response to Global
Warming' (2007) 24 Environmental and Planning Law Journal 90 at 103.
249
John Murphy, 'Noxious Emissions and Common Law Liability: Tort in the Shadow of Regulation'
in John Lowry and Rod Edmunds (eds), Environmental Protection and the Common Law (2000)
Oxford, Oregon, Hart Publishing, 51 at 75.
357
industries. Such legislation should adopt an appropriate test for causation which
incorporates the precautionary principle and accommodates the prevailing
scientific uncertainty to enable legitimate claims to be brought. Such regulation
requires the balancing of a range of conflicting economic, social and
environmental priorities of our society, both now and in the future.
250
250
358
INTRODUCTION
The raison d'etre of the international climate change regime is to achieve
significant reductions in the Earths atmospheric concentrations of greenhouse
gas emissions sufficient to avoid adverse anthropogenic interference with the
climate system. Achieving such large-scale, short-term, reductions in emissions
requires radical and abrupt changes in societys choice of energy sources,
efficiency of energy use and overall level of environmental sustainability. The
policy tool selected for the climate change regime, to facilitate these behavioural
adjustments, is the innovative regulatory mechanism of the tradeable emission
instrument within a capped international carbon market. 2 Through the artificial
construct of the emission instrument, the regime establishes a duty to reduce
emissions in conjunction with a trading mechanism.
This is intended to
This chapter expands upon a short analysis of the legal frameworks published in Nicola Durrant,
Emissions Trading, Offsets and Other Mitigation Options for the Australian Coal Industry, (2007)
Volume 24, Issue 5 Environmental Planning and Law Journal 361.
2
Kyoto Protocol to the United Nations Framework Convention on Climate Change, opened for
signature 16 March 1998 (entered into force on 16 February 2005); United Nations Framework
Convention on Climate Change, opened for signature on 4 June 1992, 31 ILM 849 (entered into force
on 21 March 1994) (together the Climate Change Regime). The term carbon market is used in this
thesis to refer to those markets trading in carbon emission instruments as well as those trading in
greenhouse gas emission instruments more generally.
359
360
The
troposphere, extends upwards from the surface of the Earth for 15 kilometres and
accounts for 85 per cent of all atmospheric gases. 4 This is followed by the
stratosphere, which extends from 15 kilometres to 50 kilometres above the
Earths surface, and the layers of the mesosphere and the thermosphere. 5
The legal status of the atmosphere is not clearly defined in international law. 6
Global commons, such as the high seas, have traditionally fallen within the
doctrine of res communis and are beyond the jurisdiction of any one nation but
may be used by all.7 In comparison, the fish within the seas are treated as res
nullius and do not belong to anyone until such time as they are appropriated.
However, the atmosphere is unique. It is partly located within the air space of the
territories of nation States and, under customary law, those States have complete
and exclusive sovereignty over that space. 8 Accordingly, those parts of the
atmosphere within the air space are technically capable of sovereign ownership.
However, in practical terms, the biological characteristics make it impossible to
impound and take exclusive possession of the atmospheric gases.9 As a result,
although the States have not relinquished all claims to the atmosphere it has been
Marvin S. Soroos, 'Garrett Hardin and tragedies of global commons' in Peter Dauvergne (ed),
Handbook of Global Environmental Politics (2005) Cheltenham, Edward Elgar, 35 at 40.
4
Ibid, 8.
5
Ibid.
6
Ibid, 33.
7
Ibid, 7.
8
Chicago Convention of International Civil Aviation 1944, Article 1, (entered into force 1947) cited
in D.J Harris, Cases and Materials on International Law (5 ed, 1998) London, Sweet and Maxwell at
239. The boundary between air space and outer space is unsettled but a better view appears to be that
air space is linked to atmosphere and present where there are traces of air to be found (see Bin Cheng,
Studies in International Space Law (1997) Oxford, Clarendon Press at 32).
9
Marvin S. Soroos, 'Preserving the Atmosphere as a Global Commons' (1998) 40(2) Environment 6 at
34.
361
However, in many respects, the greenhouse gas sink mechanism of the global
atmosphere does not fit neatly within the concepts of an open access resource
domain. As commented:
atmospheric absorptive capacity is not a resource in the same sense as are, for
example, ocean fisheries. There is no resource flow to any appropriator; fish are
taken by fishermen, but pollution diffuses throughout the available airspace.12
10
Marvin S. Soroos, n3, 35 at 40 and Marvin S. Soroos, 'The Evolution of Global Commons' in HoWon Jeong (ed), Global Environmental Policies: Institutions and Procedures (2001) Hampshire,
Palgrave Publishers, 39 at 50.
11
McCay and Acheson, The Question of the Commons (1987) at 22 quoted in Michael Goldman,
'Inventing the Commons: Theories and Practices of the Commons' Professional' in Michael Goldman
(ed), Privatizing Nature: political struggles for the global commons (1998) London, Pluto Press, 20 at
25.
12
Susan J. Buck, The Global Commons: an introduction (1998) Washington, Island Press at 126.
362
managed by the parties to the climate change regime (through the COP/MOP).
However, for those developed countries and conscientious objectors such as the
United States of America (US), who remain outside of the regime, the
atmosphere retains its pre-existing legal character. 13
It could be argued that the atmosphere was, even prior to the Kyoto Protocol, no
longer an open access resource. The creation of international regulatory bodies,
through the UN, and the imposition of rules and regulations regarding use
intervened in the unfettered use and abuse of the commons.
The Montreal
Bruce Yandle, 'Grasping for the Heavens: 3-D Property Rights and the Global Commons' (1999 2000) 10 Duke Environmental Law & Policy Forum 13 at 39.
14
Convention on Long-Range Transport of Air Pollutants (1979) (entered into force 16 March 1983).
15
Stockholm Declaration of 1942 and, in particular, Decision of the Trail Smelter Arbitral Tribunal
1941, American Journal of International Law 35; 684. This is discussed in Chapter Three.
16
There are, substantial evidentiary difficulties associated with establishing a link, on the balance of
probabilities, between activities or actions of nations and the resulting adverse climatic impacts.
Causation issues are discussed in Chapter Six.
363
The global nature of the climatic system renders a collaborative global effort both
appropriate and necessary. As the Kyoto Protocol acknowledges, climate change
and its adverse effects are a common concern of humankind and, as such, it
creates a duty to cooperate in a common response. This duty could be regarded
as a public trust obligation towards achieving the sustainability of the atmosphere
in which the institutional bodies of the climate change regime act as stewards of
the commons. 17 Regardless of its ultimate characterisation, this acknowledgment
requires synergy between global efforts to address climate change and
consistency in the recognition and treatment of tradeable emission instruments
under the international climate market.
17
For a discussion of public trusts see Peter H Sand, 'Sovereignty Bounded: Public Trusteeship for
Common Pool Resources' (2004) 4(1) Global Environmental Politics 47 at 57 who submits that
global trusteeship is conceivable, feasible and tolerable.
18
Balibar, E Masses, Classes, Ideas: Studies on Politics and Philosophy Before and After Marx (1994)
(trans J Swenson) at 220-221 quoted in Aykut Coban, 'Caught Between State-Sovereign Rights and
Property Rights: regulating biodiversity' (2004) 11(4) Review of International Political Economy 736
at 751.
364
the intrinsic limits of the total possession of things, since its very existence is
predicated on participation of all proprietors and on the reciprocal control of the
collective activity of humanity on nature (emphasis added).19
climate from this ecological function is beneficial for all humankind and could be
characterised as a global public good.21 Unfortunately, as part of the commons,
the atmosphere also suffers from unrestricted global exploitation. As Hardin
described in the now infamous work, The Tragedy of the Commons, the natural
self-interest behaviour of individuals to maximise his or her own personal gain,
in this case resulting in the undertaking of activities which emit excessive
greenhouse gases into the atmosphere at the expense of the climate system. As a
result:
each man is locked into a system that compels him [or her] to increase his [or her]
herd without limit in a world that is limited. Ruin is the destination toward which
all men rush, each pursuing his own best interest in a society that believes in the
freedom of the commons.22
19
365
In economic terms, the emission of greenhouse gases, and the resulting adverse
impacts of climate change, are a classic example of market failure. 23 In such
cases, the market has failed to register the economic value of the carrying
capacity of the atmosphere in accommodating emissions and the exploitation of
that resource is treated as an externality to the market.24 These circumstances led
the Stern Review on the Economics of Climate Change to conclude that climate
change...is the greatest and widest-ranging market failure ever seen.25
26
internalising the real environmental cost of activities into the pricing of goods
and services thus acting as a rationing device. 27
A related environmental
principle is that of the Polluter Pays principle by which the polluter, or end user,
is held financially responsible for the costs of their activities:
the polluter should bear the expense of carrying out...pollution prevention and
control measuresto ensure that the environment is in an acceptable state. In other
words the costs of these measures should be reflected in the cost of goods and
services which cause pollution in production and/or consumption.28
23
William D Nordhaus, 'To Slow or Not to Slow: the Economics of the Greenhouse Effect' (1991)
101(July 1991) The Economic Journal 920 at 923; Neil Adger and Samual Frankhauser, 'Economic
analysis of the greenhouse effect: optimal abatement level and strategies for mitigation' (1993) 3(1-3)
International Journal of Environment and Politics 104 at 104.
24
Aykut Coban, n18, 753.
25
Nicholas Stern The Economics of Climate Change: The Stern Review (Cabinet Office, HM
Treasury 2006), at i,http://www.hmtreasury.gov.uk/independent_reviews/stern_review_economics_climate_change/sternreview_index.cf
m at 14 June 2008.
26
European Environment Agency, 'Using the Market for Cost-Effective Environmental Policy:
Market-based Instruments in Europe' (No1/2006, EEA, 2006).
27
Ibid, 5; Daniel J Dudek and John Palmisano, 'Emissions Trading: why is this thoroughbred
hobbled?' (1988) 13(2) Colombia Journal of Environmental Law 217 at 222.
28
OECD, 'Recommendation on the Implementation of the Polluter-Pays Principle' (C(74)223, 1974),
I(2).
366
services. 29 This, in turn, is intended to encourage the market to react to the new
price signal for these goods and services and to modify its behaviour to achieve
outcomes that are more economically efficient.30 The emission reduction duties
imposed under the climate change regime are compatible with this principle as
obligations to reduce emissions apply only to those emissions for which the party
is directly responsible. Accordingly, under the climate change regime, nations
are not held responsible for their indirect emissions occurring within other
jurisdictions.
There are a range of policy tools available for use in the regulation of
environmental problems including direct regulation, taxes and charges,
environmental subsidies, voluntary agreements and permit trading systems.31 A
properly designed economic instrument allows a State or entity to use their
knowledge of their own activities to achieve environmental objectives at the
lowest cost. 32 When coupled with a fully functioning and properly designed
trading system, these policy tools can create efficiency gains with the reallocation
of the cost of abatement of emissions to its most cost-efficient point:
properly designed emissions trading markets can capitalize on the common interests
if nations, emissions sources, and the public to provide incentives to meet and
exceed environmental and economic performance goals.33
29
Nicolas De Sadeleer, Environmental Principles: From Political Slogans to Legal Rules (2002) New
York, Oxford University Press at 21. C.J Barrow, Environmental Management for Sustainable
Development (2 ed, 2006) New York, Routledge at 32.
30
Ibid, 21.
31
Nick Johnstone, 'Efficient and Effective Use of Tradable Permits in Combination with Other Policy
Instruments' (Paper presented at the OECD Global Forum on Sustainable Development: Emissions
Trading 17-18 March 2003 Paris, Greenhouse Gas Emissions Trading and Project Based Mechanisms,
Paris, 2003) at 119.
32
Tom Tietenberg, 'Economic Instruments for Environmental Regulation' (1990) 6(1) Oxford Review
of Economic Policy 17 at 22.
33
Annie Petsonk, Daniel J Dudek and Jospeh Goffman, 'Market Mechanisms and Global Climate
Change: An Analysis of Policy Instruments' (Paper presented at the Trans-Atlantic Dialogues on
Market Mechanisms: Bonn 23 October 1998 and Paris, 27 October 1998, 1998) at 5.
367
In this way, market rights are used to commodify environmental harms and to
bring them within the rationale of the market system 34:
production is interaction of man and nature; if this process is to be organized
through a self-regulating mechanism of barter and exchange, then man and nature
must be brought into its orbit; they must be subject to supply and demand, that is, be
dealt with as commodities, as goods produced for sale.35
It was as early as the 19th century that John Stuart Mill predicted the possible
development of a market in air owing to its emergence as a scarce resource:
air, for example, though the most absolute of necessaries, bears no price in the
market because it can be obtained gratuitously: to accumulate a stock of it would
yield no profit or advantage to any one.....If it became customary to sojourn long in
places where the air does not naturally penetrate, as in diving-bells sunk in the sea,
a supply of air artificially furnished would, like water conveyed into houses, bear a
price: and if from any revolution in nature the atmosphere became too scanty for
the consumption, or could be monopolized, air might acquire a very high
marketable value (emphasis added)38
34
368
The use of market based mechanisms has been heralded as the political saviour
of the climate change regime. Presented as a means of achieving greenhouse gas
emissions reductions at least cost, the market mechanism is regarded as an
innovative policy tool. Under the climate change regime, countries with high
domestic marginal abatement costs are able to purchase credits from those
countries with low emissions abatement costs thereby allowing reductions to take
place in the most cost-efficient geographic location.39 As a result, the cost of
meeting the emission reduction target is significantly lower with international
emissions trading compared to obligations to meet all reductions domestically.40
The use of tradeable emission instruments also creates a financial incentive for
innovation and compliance by nations and businesses with potential economic
returns from the sale of excess permits. 41 Accordingly, the incorporation of
tradeable emission instruments, in the current climate change regime, is designed
to:
convert the open access regime currently governing international use of the
atmosphere into a well-managed commons regime, with an articulated property
rights structure which assures sustainable management practices. 42
However, the use of market instruments as a policy tool is no silver bullet. The
regulatory outcomes of the market will be limited by the choice of emission
reduction target to drive the emissions trading scheme.
Consequently, an
39
Mohan Munasinghe and Rob Swart, Primer on Climate Change and Sustainable Development:
Facts, Policy Analysis, and Applications (2005) Cambridge, Cambridge University Press at 403.
40
Erik Haites and Malik Amin Aslam, 'The Kyoto Mechanisms and Global Climate Change:
Coordination Issues and Domestic Policies' (Pew Center on Global Climate Change, 2000) at 1.
41
David M. Driesen, 'Economic Instruments for Sustainable Development' in Benjamin Richardson
and Stephen Wood (eds), Environmental Law for Sustainability: A Reader (2006) Oxford
Portland, Hart Publishing, 277 at 302-303.
42
Patricia A. Monahan, Letting the market control the greenhouse effect: the promise and the pitfalls
of a global emissions trading system (Master of Science (Land Resources) Thesis, University of
Wisconsin, 1992) at 14.
43
Any penalty for non-compliance must be significantly higher than the market price of the permit.
Erik Haites and Malik Amin Aslam, n40,13, 15.
369
As noted by one
commentator:
the carbon market is a means rather than an end and the success of the market and
its various segments will be judged by how effectively it assists us in lowering
[greenhouse gas] emissions, decarbonising our economies and in achieving truly
sustainable development.44
44
David Freestone and Charlotte Streck, 'Introduction: The Challenges of Implementing the Kyoto
Mechanisms' (2007) 2(Special Issues: The Kyoto Protocol and Carbon Finance) Environmental
Liability 47 at 55.
45
UNFCCC, Decision 13/CMP.1: Modalities for the Accounting of Assigned Amounts under Article
7, paragraph 4, of the Kyoto Protocol: Annex: Modalities for the accounting of assigned amounts
under Article 7, paragraph 4, of the Kyoto Protocol(FCCC/KP/CMP/2005/8/Add.2) Section I (B) at
[5].
370
text of the Kyoto Protocol. Each AAU is equal to one metric tonne of carbon
dioxide equivalent calculated using global warming potentials.
However, the AAUs of a party are not secure and can be varied through any
international agreement reached by the parties in relation to future, post-2012,
commitment periods. According, these AAUs are:
unitized and divisible embodiments of promises accepted by sovereign States in the
context of a multilateral agreement which for that reason can be revoked, revised
and altered through further negotiation. 48
46
UNFCCC, Decision 2/ CMP 1 Principles, nature and scope of the mechanisms pursuant to Articles
6, 12 and 17 of the Kyoto Protocol, (FCCC/KP/CMP/2005/8/Add 1).
47
UNFCCC, Decision 3/CMP.1: Modalities and Procedures for a Clean Development Mechanism as
Defined in Article 12 of the Kyoto Protocol. Annex: Modalities and Procedures for a Clean
Development Mechanism, (FCCC/KP/CMP/2005/8/Add 1) section F [33].
48
Jacob Werksman (1996) Greenhouse Gas Emissions Trading and the WTO Review of European
Community International Environmental Law 8 (3) 251 quoted in Farhana Yamin, 'The Use of Joint
Implementation to Increase Compliance with the Climate Change Convention' in James Cameron,
Jacob Werksman and Peter Roderick (eds), Improving Compliance with International Environmental
Law (1996) London, Earthscan Publications, 229 at 16.
371
hybrid rights are the cornerstone of the tradeable rights regime under the Kyoto
Protocol yet their exact legal nature was not explained within the treaty or the
decisions of the parties to the climate change regime. The bundles of rights to
emit to the atmosphere is akin to the sovereign rights of nations but these rights
have been fettered and restricted through the consensus adoption of the climate
change regime.
recognised the finite nature of the atmospheres sink capacity and created
conditional regulatory rights of access to those atmospheric sinks.50
However, the restriction of those sovereign rights applies only to those parties
who have conceded to such a fetter. Non-parties, such as the US, continue to
hold their customary sovereign rights to access the atmosphere. As such, there
are no specific limits imposed on their right to emit into the atmospheric sink.
However, above a certain emission threshold, their actions would be in breach of
their undertakings as parties to the UNFCCC which requires parties to stabilise
emissions in the atmosphere at a level that would prevent dangerous
anthropogenic interference with the climate system. 51 Accordingly, where the
proportionate emitting behaviour of the US contributes to a level of emissions
which are scientifically shown to lead to dangerous anthropogenic interference
then it would be in breach of its international duties under the terms of that treaty.
In addition, the US, along with the parties to the climate change regime, will
continue to be subject to the existing principles of customary law including the
principle of State liability for transboundary harm. States are not restricted in
their sovereign right to the use of natural resources within their territory provided
that such activities do not cause harm to the territory of another State. This
49
Matthieu Wemaere and Charlotte Streck, 'Legal Ownership and Nature of Kyoto Units and EU
Allowances' in David Freestone and Charlotte Streck (eds), Legal Aspects of Implementing the Kyoto
Protocol Mechanisms: Making Kyoto Work (2005) Oxford, Oxford University Press, 35 at 42.
50
Charlotte Streck, 'The Governance of the Clean Development Mechanism: the case for strength and
stability' (2007) 2 (Special Issue: The Kyoto Protocol and Carbon Finance) Environmental Liability
91 at 92.
51
UNFCCC, n2, Article 2.
372
principle requires States not to cause damage to the environment of other States
or areas beyond the limits of their national jurisdiction and to compensate for any
such damage which does occur.52
CERs are able to be transferred to State parties and authorised private entities.
They are additional credits, able to be added to the number of AAUs in a
national account, thereby allowing a State to increase its permitted level of
greenhouse gas emissions for the commitment period.
52
The issues of transboundary harm and other State liabilities for climate damage are considered in
Chapter Three.
53
Kyoto Protocol, n2, Article 12.
54
Kyoto Protocol, n2, Article 12(5)(b).
55
Kyoto Protocol, n2, Article 12(10).
56
UNFCCC, Decision 2/ CMP 1 Principles, nature and scope of the mechanisms pursuant to Articles
6, 12 and 17 of the Kyoto Protocol, (FCCC/KP/CMP/2005/8/Add 1) at [1]. The EU has determined
373
The CDM has acted as a catalyst for cooperation and collaboration between
public and private actors towards the development and diffusion of emission
reduction technologies.
significant transaction costs and high levels of uncertainty and risk associated
with investment in CDM projects.
The CDM has been criticised for its failure to ensure that all CDM projects
achieve the dual objectives of additional emission reductions and the promotion
of sustainable development. 60 In many cases, only the former is occurring and
even then the scale of emission reductions is small in the context of global
emission trends.61 However, the additionality of emission reductions:
is difficult to verify, since it counterfactual. Most stakeholders agree that many
CDM projects are not additional in practice and would also have been implemented
in the absence of the CDM.62
that 50 per cent of its emission reductions must be achieved internally. David Freestone and Charlotte
Streck, n44, 49.
57
Kyoto Protocol, n2, Article 12(5)(c).
58
UNFCCC, Decision 3/CMP.1 n 47, section F [29].
59
Ibid, section G [40] (a).
60
Karen Holm Olsen, 'The Clean Development Mechanism's Contribution to Sustainable
Development: A Review of the Literature' (2007) 84 Climatic Change 59 at 89.
61
Ibid. Ernestine Meijer and Jacob Werksman, 'CDM - Concepts, Requirements and Project Cycle'
(2007) 2(Special Issue: The Kyoto Protocol and Carbon Finance) Environmental Liability 81 at 81.
62
Martin Cames et al, 'Climate Change: Long-Term Prospects of CDM and JI' (Research Report 204
41 192, Federal Environmental Agency (Umweltbundesamt), 2007) at 134.
374
CERs are only granted following the independent verification of the actual
emissions reductions from the completed project and the approval of the
Executive Board. These CER instruments come into existence only through the
achievement of a certain level of emissions abatement. 63 Accordingly, issued
CERs are creatures of a combination of factors including:
the text of the Kyoto Protocol and decisions of the COP/MOP relating to
the category of emission reduction project implemented;
The precise legal nature of the CER will depend upon the application,
interpretation and interaction of all these instruments. Where certain aspects of
the CDM are not addressed within those legal documents then it must be
addressed by the applicable domestic laws. Consequently, only practice will
reveal whether this hybrid of public, private, domestic and international law
provides a sufficient legal foundation for a market on which the planets future
depends.64
Participants to a CDM project will involve the developing host country, Annex-1
developed nation, project developers, project investors and land owners. The
legal rights of each of those participants in the abatement project are somewhat
unclear. As a general principle, the right to ownership of the emission instrument
will vest with the entity responsible for the implementation of the emission
reduction activities. However, in the context of carbon sequestration projects,
63
Martijn Wilder, Monique Willis and Mina Guli, 'Carbon Contracts, Structuring Transactions:
Practical Experiences' in David Freestone and Charlotte Streck (eds), Legal Aspects of Implementing
the Kyoto Protocol Mechanisms: Making Kyoto Work (2005) Oxford, Oxford University Press, 295 at
301.
64
Ernestine Meijer and Jacob Werksman, n61, 89.
375
ownership of the land, the tree and the sequestered rights may rest with different
entities.65 Legal ownership will also differ if the stored carbon is treated as a
natural resource within the domestic jurisdiction. In such a case, ownership in
the natural resource may be considered to reside in the government.66 In addition,
due to the international implications of the abatement of emissions, national
governments may claim sovereign entitlements to the instruments. Consequently,
it is essential that all participants reach clear agreement on the method of
allocation of the CERs produced by the project, and the legal entitlements and
obligations of each party to the transaction.
There are varying types of CERs which may be issued depending upon the
category of CDM project implemented by the parties. Whilst the majority of
projects will result in the same output, that is, CERs, misgivings as to the
permanence of emissions reductions from certain types of Land Use, LandUse Change, and Forestry (LULUCF) projects resulted in the creation of
additional restricted credits. These misgivings are based on the potential for
carbon leakage from reduction projects involving land management practices
or, more significantly, carbon sequestration in forests. Trees and vegetation
extract carbon dioxide from the atmosphere through their processes of
photosynthesis.
65
Martijn Wilder, Monique Willis and Katherine Lake, 'Commodifying Carbon' in Kenny Tang (ed),
The Finance of Climate Change: A Guide for Governments, Corporations and Investors (2005)
London, Risk Books, 51 at 60. The specific rights associated with biological sequestration are
discussed later in this Chapter.
66
Martijn Wilder, Monique Willis and Mina Guli, n63, 301.
376
commitment period of the Kyoto Protocol. These are temporary credits not
able to be banked following the end of the first commitment period in 2012.
67
UNFCCC, Decision 5/CMP 1 Modalities and Procedures for Afforestation and Deforestation
Project Activities under the Clean Development Mechanism in the First Commitment Period of the
Kyoto Protocol Annex, Definitions.
68
Ibid.
69
UNFCCC, Decision 19/CMP 9, n67, Annex, G [23].
70
Ibid, Annex, I [32][33].
71
Benoit Bosquet, 'Specific Features of Land Use, Land-Use Change, and Forestry Transactions' in
David Freestone and Charlotte Streck (eds), Legal Aspects of Implementing the Kyoto Protocol
Mechanisms: Making Kyoto Work (2005) Oxford, Oxford University Press, 281 at 288; Sebastian
Scholz and Ian Noble, 'Generation of Sequestration Credits under the CDM' in David Freestone and
Charlotte Streck (eds), Legal Aspects of Implementing the Kyoto Protocol Mechanisms: Making
Kyoto Work (2005) Oxford, Oxford University Press, 265 at 270.
377
emission reduction target for the commitment period in which they are
issued. A party may only use tCERs and lCERs for a maximum of one per
cent of the partys base year emissions for each year of the commitment
period. In addition, at the end of the crediting period tCERs and lCERs must
be replaced with other allowances under the climate change regime or with
new tCERs/lCERs.73
72
73
378
The method of creation of these rights depends upon whether the host nation
meets the pre-requisites to follow the simplified approval process. If these prerequisites are met, then the host country will itself verify and grant the
appropriate number of ERUs to the Annex-1 party. If this is not the case, then
the Joint Implementation Supervisory Board will perform this function following
verification by an accredited independent entity (AIE). 76 Unlike CERs issued
under the CDM, the credits resulting from these JI projects are not additional
credits. The host party must cancel the requisite number of AAUs or RMUs in
its holding account and issue the same number of ERUs to the nominated party.77
Accordingly, these rights can be regarded as a hybrid of the AAU and CER
instruments. JI projects are likely to only be approved within those jurisdictions
which possess AAUs in excess to those required to meet their emission reduction
duties under the Kyoto Protocol. This is unlikely to be the case in Australia.
74
379
requirements,
namely,
legal,
economic
and
environmental
78
Market efficiency, in this context, has been considered in the following papers: Michael I. Jeffery
and Warwick R. Baird, 'Using Market-Based Incentives to Curtail Greenhouse Gas Emissions:
Factors to Consider in the Design of the Clean Development Mechanism, Joint Implementation and
Emissions Trading' (2001) 6(2) Asia Pacific Journal of Environmental Law 117; Organisation for
Economic Co-operation and Development, 'Global Warming: Economic Dimensions and Policy
Responses' (Organisation for Economic Co-operation and Development, 1995); John Palmisano,
Establishing a Market in Emissions Credits: a Business Perspective, IEA environment briefing; no. 2;
(1996) London, The Institute of Economic Affairs; Richard Sandor, 'Implementation Issues: Market
Architecture and the Tradeable Instrument (in search of the trees)' in United Nations Conference on
Trade and Development (ed), Combating Global Warming: study on a global system of tradeable
carbon emission entitlements (1992) New York, United Nations, 151; Tom Tietenberg,
'Implementation Issues for Global Tradeable Carbon Entitlements' in Ekko Van Ierland (ed),
International Environmental Economics:Theories, Models and Applications to Climate Change,
International Trade and Acidification (1994) Amsterdam, Elsevier, 119; Nick Johnstone, n31, Annie
Petsonk, Daniel J Dudek and Jospeh Goffman, n33.
380
79
administrative
the
legal
requirements
for
the
effective
implementation,
79
Russell S Jutlah, 'Economic Instruments and Environmental Policy in Canada' (1998) 8 Journal of
Environmental Law and Practice 323; Nathaniel O. Keohane, Richard L. Revesz and Robert N.
Stavins, n43; Tomasz Zylicz, 'Improving Environment through Permit Trading: the Limits to a Market
Approach' in Ekko C Ierland (ed), International Environmental Economics: Theories, Models and
Applications to Climate Change, International Trade and Acidification (1994) Amsterdam, Elsevier,
283.
80
Brent M. Haddad and John Palmisano, 'Market Darwinism vs. Market Creationism: Adaptability
and Fairness in the Design of Greenhouse Gas Trading Mechanisms' (2001) 1(4) International
Environmental Agreements: Politics, Law and Economics 427; Adam Rose, ''Equity' Considerations
of Tradeable Carbon Emission Entitlements' in United Nations Conference on Trade and
Development (ed), Combating Global Warming: study on a global system of tradeable carbon
emission entitlements (1992) New York, United Nations, 55; Leslie Shiell, 'Equity and efficiency in
international markets for pollution permits' (2003) 46(1) Journal of Environmental Economics and
Management 38; Hermann E. Ott and Wolfgang Sachs, 'The Ethics of International Emissions
Trading' in Luiz Pinguelli-Rosa and Mohan Munasinghe (eds), Ethics, Equity and International
Negotiations on Climate Change (2002) Cheltenham, UK, Edward Elgar, 159.
81
See, for example, discussions in Gregory Rose, 'A Compliance System for the Kyoto Protocol'
(2001) 7(2) New South Wales Law Journal 37 and Sonja Peterson, 'Monitoring, Accounting and
Enforcement in Emissions Trading Regimes' (Paper presented at the OECD Global Forum on
Sustainable Development: Emissions Trading 17-18 March 2003 Paris, Greenhouse Gas Emissions
Trading and Project Based Mechanisms, Paris, 2003).
82
Patricia A. Monahan, n42, 19.
381
increase the economic cost of fulfilling the emission reduction commitments and
will reduce the effectiveness of the market as an innovative policy tool.83 Costs
of information procurement, contract negotiations and monitoring and
verification as well as the multiple layers of domestic and international approvals
may also hinder the flexibility and cost-effectiveness of these market
instruments.
84
institutions and the agreed framework for the climate change regime will impede
the flexibility and environmental effectiveness of the mechanisms.85
83
Darren Kennedy et al, 'Global Economic Impacts of the Kyoto Protocol' in Australian Department
of Foreign Affairs and Trade (ed), Trading Greenhouse Emissions: Some Australian Perspectives
(1998) Canberra, Commonwealth of Australia, 91 at 101-103.
84
Axel Michaelowa, 'Flexible Instruments of Climate Policy' in Axel Michaelowa and Michael
Dutschke (eds), Climate Policy and Development: Flexible Instruments and Developing Countries
(2000) Cheltenham, UK, Edward Elgar, 1 at 12. Frauke Eckermann et al, 'The Role of Transaction
Costs and Risk Premia in the Determination of Climate Change Policy Responses' (Discussion Paper
No. 03-59, ZEW (Centre for European Economic Research), 2003).
85
In relation to compatibility of domestic and international trading systems see Jae Edmonds et al,
'International Emissions Trading and Global Climate Change: Impacts on the Costs of Greenhouse
Gas Mitigation' (Pew Center on Global Climate Change, 1999) at 32 and Jan-Tjeerd Boom, 'Design of
International Emissions Trading Scheme: A Comparison and Analysis' (2005) unpublished (provided
by the author on 29 September 2005) at 11.
86
Richard B Stewart and Phillipe Sands, 'The Legal and Institutional Framework for a Plurilateral
Greenhouse Gas Emissions Trading System' in Greenhouse Gas Market Perspectives Trade and
Investment Implications of the Climate Change Regime: Recent Research on Institutional and
Economic Aspects of Carbon Trading, UNCTAD/DITC/TED/Misc.9 (2001) United Nations, 5 at 10
and Tom Tietenberg, 'Implementation Issues: A General Survey' in United Nations Conference on
Trade and Development (ed), Combating Global Warming: study on a global system of tradeable
carbon emission entitlements (1992) New York, United Nations, 127 at 133. See also Joe Motha,
'Tradeable Permits: Terms and Taxonomy' in Bureau of Transport Economics (ed), Trading
Greenhouse Emissions: Some Australian Perspectives (1998) Canberra, Bureau of Transport
Economics, 25; Zhong Xiang Zhang, 'The Design and Implementation of an International Trading
Scheme for Greenhouse Gas Emissions' (2002) 39(4) Peace Research Abstracts 459 and Kjell Roland,
'From Offsets to Tradeable Entitlements' in United Nations Conference on Trade and Development
(ed), Combating Global Warming: study on a global system of tradeable carbon emission
entitlements (1992) New York, United Nations, 23.
382
87
Richard F. Kosobud, 'Emissions Trading Emerges from the Shadows' in Richard F. Kosobud (ed),
Emissions Trading: Environmental Policy's New Approach (2000) New York, John Wiley and Sons,
3 at 29; Robert Stavins, 'What Do We Really Know About Market-Based Approaches to
Environmental Policy? Lessons from Twenty-Five Years of Experience' in Richard F. Kosobud (ed),
Emissions Trading: Environmental Policy's New Approach (2000) New York, John Wiley and Sons,
49 at 55.
88
Richard Kosobud, n87, 25.
89
Richard Baron and Stephen Bygrave, 'Towards International Emissions Trading: Design
Implications for Linkages' (OECD, IEA, 2002) at 38-39 and 58. Erik Haites, 'Harmonisation Between
National and International Tradable Permit Schemes' (Paper presented at the OECD Global Forum on
Sustainable Development: Emissions Trading 17-18 March 2003 Paris, Greenhouse Gas Emissions
Trading and Project Based Mechanisms, Paris, 2003) at 108. See also Zhong Xiang Zhang, 'Should
the Rules of Allocating Emissions Permits be Harmonised?' (1999) 31 (1) Ecological Economics;
(2000) 14(4) Journal of Planning Literature .
90
Richard Kosobud, n87, 30; Robert Stavins, n87, 56.
91
Tom Tietenberg et al, 'International Rules for Greenhouse Gas Emissions Trading: Defining the
principles, modalities, rules and guidelines for verification, reporting and accountability'
(UNCTAD/GDS/GFSB?Misc.6, United Nations Conference on Trade and Development, 1999) at 84.
383
market system. Traditional principles of property law refer to the need for these
rights in property to bestow on the holder the rights of usus, abusus and fructus.
Usus being the right to use the resource; abusus the right to destroy it, to give it
away and to sell it; and fructus the ability to harvest the fruits of that resource.
Therefore, the nature of the property right will play a significant role in the
ultimate success of the international climate change regime. However, the parties
to the Kyoto Protocol specifically recognised that the Kyoto Protocol has not
created or bestowed any right, title or entitlement to emissions of any kind on
parties.92 Moreover, at a domestic level, these tradeable instruments may take
various forms including private property rights, permits to emit, public rights,
security instruments or some other form of intangible asset.
The effectiveness of the multi-national carbon market will depend upon the
harmonious recognition and treatment of the tradeable emission instruments. In
order to hold value as an element in domestic legal systems, these instruments
must be legitimised and protected by the legal system. Greater legitimacy will
lead to greater player confidence in the market resulting in increased numbers of
market dealings and, ultimately, a more effective carbon market.
The significance of the legal nature of the property rights have been described as
follows:
Property must have a clear-cut or crystalline quality which admits of no doubt
either as to its presence or, just as important, as to its absence or infringement. The
rights to which property relates must have a hard-edged definitional integrity
conducive to the intellectual orderliness of the regime as a whole. Property must
come in neat, pre-packaged conceptual compartments, immune from capacious
tampering or even well-intentioned amplification.93 (emphasis added)
92
UNFCCC, Decision 5/CP.6 'The Bonn Agreements on the Implementation of the Buenos Aires
Plan of Action', (FCCC/CP/2001/5), Part VI, Division 1 at 42.
93
Kevin Gray and Susan Francis Gray, 'The Idea of Property in Land' in Susan Bright and John
Dewar (eds), Land Law: Themes and Perspectives (1998) New York, Oxford University Press, at 3132.
384
Property in this context refers to the legal relationship between the holder and the
object and to the bundle of rights able to be exercised in relation it. 94 The
concept of property as a bundle of rights has been described as principally the
rights to possess the property, to use the property, to exclude others from the
property, and to dispose of the property by sale or by gift. 95 Private property
rights must be able to be defined, defended and divested.96 To be clearly defined,
the physical attributes of the resource must be appropriately specified so as to be
measurable and identifiable. 97 As commented:
for a market to an effective instrument of governance, the nature and subject matter
of these rights must be clear, certain and predictable. Whether they have these
characteristics is a reflection not only of their own nature but also of the operational
powers and capacities associated with these rights.98
The fluidity of the atmosphere makes such identification and measure physically
impossible. An owner cannot point to a portion of the invisible atmosphere and
state that gas is mine. However, the sink capabilities of the atmosphere are
technically definable through scientific research and the Kyoto Protocol has
enabled virtual trade in this artificial construct within defined limits. 99 It is
therefore possible to be conceptually clear as to what each allowance represents
in terms of the level of permitted emissions associated with each tradeable
instrument.
94
For example, Yanner v Eaton (1999) 201 CLR 351 per Gleeson CJ, Gaudron J, Kirby J and Hayne J.
Moore v Regents of the University of California (1990) 793 P. 2d 479 per Mosk J.
96
Yandle,n13, 15.
97
Terry L. Anderson and Donald R. Leal, Free Market Environmentalism (1991) Boulder, Westview
Press at 20.
98
Douglas E. Fisher, 'Delivering the National Water Initiative, New Frameworks for Law and
Regulation, The Emergence of Innovative Legal Doctrine' (Paper presented at the Delivering the
National Water Initiative: understanding the social and industry dimensions, Parliament House
Canberra, 4-5 December 2006) at 23.
99
Yandle, n13 at 29 uses the example of the thickness of the ozone layer as a definable property right.
95
385
100
Scott quoted in Alina Averchenko, Factors of Effectiveness of the International Climate Change
Regime (PhD Thesis, University of Bath, 2004) at 102.
101
For a discussion of commodification in the water context see Janice Gray, 'Legal Approaches to
the Management and Regulation of Water from Riparian Rights to Commodification' (2006) 1(2)
Transforming Cultures eJournal 64.
102
Richard B Stewart and Phillipe Sands, n86, 10 and Susan Rose-Ackerman, 'Environmental
Liability Law' in Tom Tietenberg (ed), Innovation in Environmental Policy: Economic and Legal
Aspects of Recent Developments in Environmental Enforcement and Liability (1992) Hants, Edward
Elgar 223 at 223. Joe Motha, n86; Zhong Xiang Zhang, n86 and Kjell Roland, n86.
386
The principle of direction looks to the institutional structure and the power of the
institutions of the climate change regime, in particular, their leadership and
ability to set future policy directions and to adapt to changing environmental,
economic and social conditions.
103
387
concepts of accountability and fairness are intrinsically linked with the need for
transparency and equity in the regulation of greenhouse gas emissions across the
globe.
Open access to the market will also encourage market liquidity and facilitate an
efficient market system. 110 Any restrictions on participation in the market or on
the ability to trade will impede this market efficiency even if such restrictions are
valid on legal or environmental grounds. 111 However, the drive for market
efficiency must be balanced against the need for regulators to maintain flexibility
in the implementation of the regime, for example, in the adjustment of the
number of tradeable emission instruments in response to new predictions
regarding the threats of adverse climate change.
107
388
Therefore, the
The climate change regime remains largely silent on the manner in which parties
should implement their international obligations within the domestic sphere.
This has resulted in the adoption of hybrids of domestic policy approaches to
emissions reductions incorporating a combination of policies, command and
control instruments, carbon taxes, subsidies and incentives and greenhouse gas
offset and cap and trade systems. As a result, there is a significant issue as to
the lack of compatibility and potential inconsistencies between the emergent
domestic approaches and international objectives.
112
Jonas Ebbesson, Compatibility of International and National Environmental Law (1996) London,
Kluwer Law International at xix.
113
Oran R Young, The Institutional Dimension of Environmental Change: Fit, Interplay, and Scale
(2002) Cambridge, The MIT Press at 113-132 cited in Sebatsian Oberthur and Thomas Gehring (eds),
Institutional Interaction in Global Environmental Governance: Synergy and Conflict among
International and EU Policies (2006) Cambridge, The MIT Press at 21.
389
Erik Haites, n89, 105. Deborah Stowell, Climate Trading: Development of Greenhouse Gas
Markets (2005) Hampshire, Great Britain, Palgrave Macmillan at 95.
115
Deborah Stowell, ibid, 214.
116
Charles W. L. Hill, Global Business Today (4th ed, 2006) Boston, McGraw-Hill Irwin at 7. These
issues are considered further in Chapter Seven.
117
Sonja Peterson, n81, 195.
118
Ibid. See also Erik Haites, n89, 108.
390
with the concepts of fairness, justice, and due process and these mechanisms
must be implemented in a transparent and consistent manner in order to gain the
acceptance of the global community and to act as suitable deterrents.
Without the parties meeting their emission reduction targets, the environmental
integrity and credibility of both the market mechanisms and the Kyoto Protocol
will be undermined.119 Additionally, in the absence of appropriate enforcement,
there will be little incentive to alter current global behaviours regarding
greenhouse gas emission levels. 120 Accordingly, the effectiveness of the market,
as an innovative policy tool, requires that there be in place not only appropriate
monitoring and verification of the creation and trade of the emission instruments
but also sanctions for any identified non-compliances. 121
Monitoring and
119
391
124
125
392
increase from 30 billions Euros in 2006 to 63 billion Euros in 2008. 127 The
growth of trade in AAUs will depend largely on the politically acceptability of
buying so-called hot air or surplus AAUs from Russia and the Ukraine who
have excess allowances following the collapse of the soviet union and subsequent
economic crisis in the 1990s. 128 There has been a recent growth in the primary
and secondary CER markets.129 Given its later starting date, there has been only
limited trade in ERUs under the JI mechanism. 130
A key legal issue in the international climate market is the absence of definition
of the tradeable emission instruments. By failing to appropriately characterise
the nature of the emission instruments under the international climate change
regime, these rights must be dealt with in a haphazard and ad hoc fashion by
domestic legal principles under a range of civil law and common law systems
which were not established with the treatment of these novel forms of property in
mind. As a result of this forced fusion, the bundle of rights associated with a
tradeable emission instrument will differ according to: the origins of the
instrument, that is, the applicable laws for how and where it was created; its
contractual treatment; and its recognition and treatment in the jurisdiction in
which the instrument is held. The result is inconsistency and uncertainty in the
bundle of rights and protections associated with these instruments across the
international market system. Moreover, the specification of these rights is not
127
Yvo de Boer, 'Key Note Address: Executive Secretary, United Nations Framework Convention on
Climate Change' (Paper presented at the Carbon Market Insights 2008, Copenhagen, Denmark, 11
March 2008) at 4.
128
Kjetil Roine and Endre M. Tvinnereim, 'The Global Carbon Market in 2007' in David Lunsford
(ed), Greenhouse Gas Market 2007 Building Upon A Solid Foundation: The Emergence of a Global
Emissions Trading System (2007) Geneva, International Emissions Trading Association, 42 at 44.
129
Ibid,43. The primary market relates to the sale of credits, prior to issue by the CDM Executive
Board, through emission reduction purchase agreements (ERPA) while the secondary market trades
CERs which have actually been issued by the board.
130
Ibid.
393
131
Many standard form contracts have emerged for use in international transactions of carbon credits.
In the case of contracts for emission reduction projects, these contracts are vital to managing risks and
liabilities associated with both the project and the ultimate transfer of credits. For example, the
International Emissions Trading Association standard form Emission Reduction Purchaser
Agreement, Version 3 (2006) and Code of CDM Terms Version 1 (2006) is widely used for CDM
projects involving the sale of generated CERs. That standard form agreement adopts a somewhat
circular definition for Certified Emission Reduction and refers to the Kyoto Protocol to define the
rights associated with those instruments. The definition reads as follows: a unit issued pursuant to
Article 12 of the Kyoto Protocol as well as other relevant International Rules and is equal to one
metric tonne of Carbon Dioxide Equivalent, calculated in accordance with the International Rules.
International Rules are defined as: the UNFCCC, the Kyoto Protocol, the Marrakesh Accords, any
relevant decisions, guidelines, Modalities and procedures, made by the COP/MOP and Executive
Board, in each case as amended from time to time. These circular definitions of tradeable emission
instruments are a common occurrence in transactions on the international climate market.
The IETA Agreement also contains a number of contractual provisions addressing the generation and
transfer of CERs. These include a description of the project which will generate the CERs and
specification of the number of credits to be purchased at the agreed unit price. The IETA Agreement
also imposes obligations on the seller for the verification and registration of the project and for the
implementation of the agreed monitoring plan. Where agreed by the parties, the agreement may also
include conditions precedent regarding host country approval of the project. Following verification,
the IETA Agreement requires the seller to procure delivery of the requisite number of CERs to the
purchasers CDM registry account.
The agreement addresses a range of circumstances that may give rise to rights to terminate. Events of
default include the withdrawal of one partys government from the Kyoto Protocol. In the event that
this occurs, instruments may not be issued to CDM and JI project participants from that nation party.
In the event of non-delivery of CERs, the agreement provides the purchaser with a number of options
including the provision of replacement CERS by the seller, the provision of Market Damages for the
delivery shortfall and termination of the agreement. However, where the shortfall is the result of a
change in law (rending delivery of the instruments unlawful) or the occurrence of a force majeure
event then the seller is relieved from its obligations under the agreement.
Interestingly, the above contractual provisions do not specify the full rights and liabilities associated
with these CERs in terms of ownership, use and transfer. Presumably, this is due to concerns that an
over enthusiastic definition might result in instruments which are not compatible with, or recognised
by, the international climate market. However, given the acute silence at the international level, the
contractual agreement is a critical medium for providing further clarification on the bundle of rights
and protections.
394
different forms under the international market and their legal characteristics vary
significantly through international, domestic and contractual spheres thus
undermining the potential effectiveness of these markets.
132
Benjamin Richardson, 'Climate Law and Economic Policy Instruments: A New Field of
Environmental Law' [2004](1) Environmental Liability 19 at 19.
395
national carbon dioxide emissions of all member states which must then be
translated into national plans with allocations for the various domestic sectors.
There are also proposals to expand the EU Scheme, post-2012, to address
emissions from air transportation, and potentially, maritime transportation. 135
133
396
The allowances are both AAUs for the purposes of the Kyoto Protocol and
allowances for the purposes of the EU Scheme. 137
As with the Kyoto Protocol, the EU Scheme is also silent on the exact legal
nature of the allowances issued under the scheme and the rights and obligations
associated with those allowances. The EU defines its allowances as:
an allowance to emit one tonne of carbon dioxide equivalent during a specified
period, which shall be valid only for the purposes of meeting the requirements of
this Directive and shall be transferable in accordance with the provisions of this
Directive.138
Allowances are issued by each member State to the operator of each prescribed
installation and are valid for the period in which they are issued.139 Operators
are only permitted to emit greenhouse gases in accordance with an issued
greenhouse gas emission permit. 140 It is a condition of that permit that the
operator surrender allowances, at the end of each calendar year, equal to the total
emissions of the installation. 141 Allowances are issued to the installations in
accordance with each member States National Allocation Plan. 142
Those
137
Accordingly, EU allowances can have different legal characteristics at the same time at two
different legal planes. Anthony Hobley and Peter Hawkes, 'GHG Emissions Trading Registries' in
David Freestone and Charlotte Streck (eds), Legal Aspects of Implementing the Kyoto Protocol
Mechanisms: Making Kyoto Work (2005) Oxford, Oxford University Press, 127 at 143.
138
European Union, Directive 2003/87/EC of the European Parliament and of the Council of 13
October 2003 establishing a scheme for greenhouse gas emission allowance trading within the
Community and amending Council Directive 96/61/EC (entry into force 25.10.2003) published in
OJL of the 25.10.2003., Article 3 (a).
139
Ibid, Articles 11 and 13.
140
Ibid, Article 6(1).
141
Ibid, Article 6(2)(e).
142
Ibid, Article 9.
143
Ibid.
397
Allowances are valid for the commitment period in which they are issued and are
able to be held by any person.144 Allowances are able to be transferred between
members of the European Union and to third parties who have entered into a
bilateral agreement with the EU. 145 In addition, member States may allow
operators to surrender a proportion of required allowanc es, in the form of CERs
and ERUs, from CDM and JI projects implemented outside of the EU.146
144
398
the investment of a foreign investor, but this is largely unchartered territory and
the success of such a claim remains uncertain. 149
The allowances under these trading schemes are created, traded and held in a
virtual environment.
entitled to compensation for any losses resulting from the breach of that security
where the holder is not at fault. 150
149
399
In
preparing the legislation, it was unfortunate that the UK did not take the
opportunity to clarify the definition of allowances for the purposes of the UK.
Instead, the UK Regulation simply refers to the meaning adopted in the EU
Directive and the nature of the right being allocated remains unclear. 157 Even
less satisfactory is the adopted definition of greenhouse gas emissions permit
which does not refer to the EU Directive for its interpretation but is stated as
meaning a permit granted under the regulation. 158 The conditions able to be
imposed on the permit are stated in broader terms in the UK Regulation than
those specified under the EU Directive and a UK permit may be issued with
such conditions as the regulator considers appropriate. 159
153
400
The UK registry performs three different roles with respect to trading. It was a
registry for the purposes of the UK Emissions Trading Scheme which ran from
2002 to 2006. It is an EU registry for the purposes of the EU Emissions Trading
Scheme and it is a national registry for the purposes of the Kyoto Protocol. As
such, the ramifications of failed transactions and compromised servers, especially
in the international arena, are profound and the apparent lack of administrator
accountability for such losses appears unreasonable. 162
160
The first capped phase will begin in 2013. DEFRA, Action in the UK-Carbon Reduction
Commitment http://www.defra.gov.uk/environment/climatechange/uk/business/crc/qanda.htm at 14
June 2008.
161
Including the UK Climate Change Agreements. Ibid.
162
Any liability relating to, among other matters, delays, errors, unauthorised accesses, software faults
and server failures is limited to 5,000 for any liability arising in any year including where an account
holder holds multiple accounts. Economic losses, such as loss of profits and opportunity loss, and
liabilities relating to lost security rights, software or data corruption and regulatory fines or penalties
are excluded. UK Environment Agency EU Emissions Trading Scheme: UK Registry: Registry
Terms and Conditions (Version 1.0: May 2005), Clauses 8.1 and 8.2.
163
New Zealand Government, 'Climate Change (Emissions Trading and Renewable Preference) Bill
2007 (NZ): Explanatory Note' (2007) at 4. Bill introduced to the New Zealand Parliament in
December 2007. This bill will amend the Climate Change Response Act 2002 (NZ).
401
Protocol.164 Liable entities must surrender one emission unit to cover each metric
tonne of eligible emissions in a compliance period.165 AAUs and CERs from
certain eligible activities under the international climate market may be
surrendered in compliance with the New Zealand scheme. 166 A self-assessment
compliance scheme, similar to that used in the taxation system, will be utilised
but any identified non-compliance will result in the imposition of penalties and
an obligation to make good the shortfall. 167
incrementally cover all greenhouse gases and all sectors, including agriculture
and forestry, by 2013. 168
landowners of both the credits for forestry activities that lead to a removal of
carbon dioxide from the atmosphere, and the liabilities for the subsequent release
of carbon dioxide into the atmosphere by harvesting or deforestation. 169 Sales
and purchases from the international climate market are permitted and it is
intended that future linkages with other domestic and regional emissions trading
schemes will be established. 170
approach to emissions trading and may not be compatible with other established
markets such as the EU Scheme.
164
New Zealand Government, 'Climate Change (Emissions Trading and Renewable Preference) Bill
2007 (NZ): Explanatory Note' (2007) at 6. New Zealand Government, 'The Framework for A New
Zealand Emissions Trading Scheme' (2007) at 5, 47. New Zealands agreed target under the Kyoto
Protocol is to reduce emissions to 1990 levels by 2012.
165
New Zealand Ministry for the Environment and the Treasury, 'The New Zealand Government's
Proposal for an Emissions Trading Scheme' in David Lunsford (ed), Greenhouse Gas Market 2007
Building Upon A Solid Foundation: The Emergence of a Global Emissions Trading System (2007)
Geneva, International Emissions Trading Association, 6 at 6.
166
CERs from nuclear activities are currently excluded from the scheme. New Zealand Government,
'Climate Change (Emissions Trading and Renewable Preference) Bill 2007 (NZ): Explanatory Note'
(2007) at 6.
167
Civil penalties will be imposed for identified non-compliance with more severe criminal penalties
to be imposed where the participant (including company directors) does so knowingly. New Zealand
Government, 'The Framework for A New Zealand Emissions Trading Scheme' (2007) at 51-53, 55.
New Zealand Ministry for the Environment and the Treasury, n165, 7.
168
New Zealand Ministry for the Environment and the Treasury, n165, 6.
169
Ibid.
170
New Zealand Government, n167, 46. New Zealand Government, 'Climate Change (Emissions
Trading and Renewable Preference) Bill 2007 (NZ): Explanatory Note' (2007) at 7.
402
These contracts
171
403
acquire and retire VERs to meet their targets. Contractually agreed penalties are
imposed for non-compliance with the rules of the voluntary scheme. These
programs rely on voluntary cooperative agreements between the regulator and
participants which specify the level of emissions reductions to be achieved;
monitoring and reporting obligations; and the consequences of non-compliance.176
174
Martijn Wilder and Liz Day, 'Voluntary Carbon Market A Legal Perspective' in David Lunsford
(ed), Greenhouse Gas Market 2007 Building Upon A Solid Foundation: The Emergence of a Global
Emissions Trading System (2007) Geneva, International Emissions Trading Association, 121 at 121.
175
For a discussion of the operation of the voluntary Greenhouse Challenge programs (1995-2005)
see Rory Sullivan, 'Greenhouse Challenge Plus: a new departure or more of the same?' (2006) 23(1)
Environmental and Planning Law Journal 60 at 69. From 1 July 2006, participation in Greenhouse
Challenge Plus became mandatory for those Australian companies claiming excise credits of more
than $3 million per annum. AGO Fuel Tax Credits and Greenhouse Challenge Plus Membership
http://www.greenhouse.gov.au/challenge/members/fueltaxcredits.html at 14 June 2008.
176
Rory Sullivan, ibid, 62.
404
CCX was launched in 2003 and was the first emission reduction and trading
system to address all six greenhouse gases. The scheme was self-regulatory and
allowed entities from any country to agree voluntarily to the imposition of
binding obligations to reduce their greenhouse gas emissions reductions.
In
Phase I, ending in December 2006, CCX members were required to reduce direct
emissions to four per cent below the specified baseline period of 1998-2001.177
Phase II, will continue until 2010 and requires CCX members to reduce their
emissions to six per cent below that baseline. 178 Non-compliance results in the
imposition of enforceable penalties. The commodity traded on the CCX is the
CFI contract which represents 100 metric tons of carbon dioxide equivalent. CFI
contracts are comprised of both Exchange Allowances and Exchange Offsets.
Exchange Allowances are issued to Members in accordance with their emission
baseline whilst Exchange Offsets are generated by qualifying offset projects.179
There are proposals to link the CCX with the EU Scheme and to allow EU
allowances to be used in compliance with CCX obligations.
177
405
The Australian Climate Exchange (ACX) was launched in 2007 to facilitate the
sale of VERs from the Greenhouse Friendly program and any other future
emissions commodities.182 There is significant scope for the generation of offsets
from Australian land to be sold to participants in the existing regulatory schemes
provided that the projects are consistent with the rules and requirements of those
other regimes. The types of activities that could generate offsets include changes
in soil management and land management practices as well as the deliberate
planting and cultivation of vegetation and trees on the land to store greenhouse
gases.
182
406
abatement projects must occur within Australia and must generate greenhouse
gas emission reductions or sequestration that are: additional (beyond business as
usual); permanent; and verifiable. 185 Consequently, there are a number of legal
issues in the successful implementation of offset activities involving the
generation of carbon from the maintenance of vegetation stocks on land. These
include:
additionality of reductions;
permanence of reductions;
The project must undertake an activity that goes beyond the business as usual
management practices of the landholder. It should not be an activity that is
mandated by any enforced law, statute or other regulatory framework. 186
Accordingly, any abatement associated with vegetation reserves maintained on
land as a result of statutory prohibitions, such as the Vegetation Management Act
1999 (Qld), will find the threshold of additionality problematic to reach.187 The
permanence of emissions reductions from trees and vegetation is also a
significant issue. Carbon stocks in vegetation fluctuate over time and emissions
reductions are not permanent. Because of this, under the Kyoto Protocol only
temporary credits are issued for carbon sink projects.
185
Ibid, 19.
Voluntary Carbon Standard, 'Voluntary Carbon Standard 2007' (VCS Association, 2007) at 14-15.
187
Projects implemented to meet regulatory compliance obligations are not eligible abatement
projects under the Greenhouse Friendly program, Australian Greenhouse Office, 'Greenhouse
Friendly Guidelines' (AGO, 2006) at 19.
186
407
Greenhouse Friendly program permanent credits are issued provided that the
stocks are maintained for at least seventy years. 188
The third issue is the ability to guarantee to both the regulator and the purchaser
of the credits that the landholder is able to ensure continued rights to access the
land and protect the carbon stocks. The regulator of the Greenhouse Friendly
program requires evidence of secure ownership of both the sequestered carbon
and the land on which it resides. For an owner with freehold title to the land this
is challenging enough but to an occupier in possession under a lease of Crown
land it is highly problematic as the Crown retains broad prerogative powers of
reservation and resumption in respect of leasehold land.
There is also the question of who owns the trees and vegetation on the land? It
appears that these are vested in the Crown under the terms of most standard form
state leases. If this is the case then the relevant state government would have to
assign ownership of the carbon to the landholder as well as being a signatory to
all contractual agreements between the landholder and the purchaser.
188
408
There are a range of standards available for use in the independent verification of
offset projects. The Voluntary Carbon Standard is intended to ensure that all
VCS offsets are real, additional, measurable, permanent, independently verified
and unique (that is, the same abatement is not used more than once to offset
emissions). 191 The Gold Standard for Voluntary Offsets, developed by nongovernmental organisations, also applies additional criteria to ensure that
meaningful consultation with local stakeholders is carried out and that abatement
projects assist in achieving sustainable development.192 Gold Standard VERs are
only created following independent validation and verification by an expert
accredited under the international climate change regime.193 Finally, the Climate,
Community and Biodiversity Standards (CBB) have also been developed for
land-based projects that are intended to deliver climate, biodiversity and
community benefits.194
191
Voluntary Carbon Standard 2007 (VCS 2007) About the VCS http://www.v-c-s.org/about.html at
14 June 2008.
192
Only project activities involving renewable energy and enduse energy efficiency measures which
promote sustainable development are eligible for accreditation under the Gold Standard. The Gold
Standard, 'The Gold Standard: Voluntary Emission Reductions (VERs) Manual for Project
Developers' (2006 (version 5)) at 10, 13; www.cdmgoldstandard.org at 14 June 2008.
193
The Gold Standard, 'The Gold Standard: Voluntary Emission Reductions (VERs) Manual for
Project Developers' (2006 (version 5)) at 32-36.
194
CCBA, 'Climate, Community and Biodiversity Project Design Standards' (The Climate,
Community and Biodiversity Alliance, 2005) at 6-7; www.climatestandards.org/images/pdf/CCBStandards.pdf at 13 June 2008. There are three levels of CCB
validation: approved, silver and gold.
409
195
410
key features yet to be settled and with many practical legal issues yet to be
encountered. Even those market systems that have been implemented for some
years now, including the EU scheme, are still in the learning by doing process
but appear to be doing little to address the mounting raft of unresolved legal
issues. Together, these factors make it difficult to derive the commonalities in
the legal approaches across these emerging schemes.
It now appears certain that Australia will have an emissions trading system in
operation from 2010. Given the obvious dysfunctions of these existing multinational markets, the design of the Australian scheme will be critical in enabling
it to operate in an optimal fashion. However, the design and legal features of any
future carbon market remain unsettled including key components relating to: the
emission reduction targets for the scheme; the participants to be regulated; the
nature of the tradeable emission instrument and the rules for the creation,
allocation, trade and surrender of the emission instruments. The treatment of
offsets and CCS under any such regime is also unclear.
A range of discussion papers and proposed models have been released into the
public arena over recent years. 197 However, no clear guide on the preferred design
of the future Australian system has been released by the current government. It is
clear that an extensive process of economic modelling and public consultation
will be required prior to the enactment of such a scheme. 198
Given this
uncertainty, the following paragraphs present the key legal requirements that
should be addressed in any design of an effective emissions trading system.
197
Including National Emissions Trading Taskforce, 'Possible Design for a National Greenhouse Gas
Emissions Trading Scheme' (NETT, 2006),
http://www.cabinet.nsw.gov.au/greenhouse/emissionstrading at 14 June 2008; Prime Ministerial Task
Group on Emissions Trading, 'Report of the Task Group on Emissions Trading' (The Department of
the Prime Minister and Cabinet, 2007); Garnaut Climate Change Review, 'Interim Report to the
Commonwealth, State and Territory Governments of Australia' (2008); Garnaut Climate Change
Review, 'Emissions Trading Scheme Discussion Paper' (2008).
198
The final report of the Garnaut Climate Change Review is expected to be released by the end of
September 2008. This report will be one of many factors taken into consideration by the Federal
government in devising the emission trading scheme. Draft legislation for the implementation of an
Australian scheme is intended to be released for public comment by the end of 2008.
411
The current Australian Prime Minister has indicated that it will adopt an
emission reduction target of 60 per cent reductions in emissions, below 2000
levels, by 2050.201 That target is not yet reflected in legislation and interim
targets have not been announced.
199
The EU has stated that it will increase that target to 30 per cent if other developed countries follow
suit. European Council Meeting, Brussels, 8-9 March 2006 Presidency Conclusions Part III at [32],
http://www.consilium.europa.eu/ueDocs/cms_Data/docs/pressData/en/ec/93135.pdf at 14 June 2008.
200
Ibid. The EU advocates that an increase of greater then 2 degrees Celsius will lead to adverse
anthropogenic climate change.
201
Prime Minister Kevin Rudd has committed to the adoption of a long term target for Australia of
reducing emissions by 60 per cent on 2000 levels by 2050 with interim targets to be established.
Prime Minister Kevin Rudd, Ratifying the Kyoto Protocol (3 December 2007, Media Statement)
http://www.alp.org.au/media/1207/mspm030.php at 14 June 2008
412
202
Garnaut Climate Change Review, 'Interim Report to the Commonwealth, State and Territory
Governments of Australia' (2008) at 25.
203
Ibid, 39.
204
These have included: the Commonwealth Mandatory Renewable Energy Target Scheme; New
South Wales/ACT Greenhouse Gas Abatement Scheme; Victorian Renewable Energy Target Scheme
413
206
In contrast, the UK
and Queensland 13 per cent Gas Scheme. There will significant issues in attempting to merge these
trading schemes into a national carbon market with their significant variances in the creation and
treatment of tradeable instruments.
205
A similar opinion is reached in Garnaut Climate Change Review, 'Emissions Trading Scheme
Discussion Paper' (2008) at 27.
206
There is a proposal to include the aviation and shipping sectors in the future.
207
Sustainable Development Commission, Personal Carbon Trading: a radical concept?
http://www.sd-commission.org.uk/pages/carbontrading.html at 14 June 2008.
208
Garnaut Climate Change Review, 'Emissions Trading Scheme Discussion Paper' (2008) at 27.
209
RSJ (Bob) Beeton et al, 'Australia State of the Environment 2006: Independent Report to the
Australian Government Minister for the Environment and Heritage, Department of the Environment
and Heritage, Canberra' (Australia State of the Environment Committee, 2006) at 27, available at
http://www.environment.gov.au/soe/2006/index.html at 14 June 2008.
414
emissions from the agriculture and forestry sectors in Australia. 210 The
Garnaut Climate Change Review notes that emissions from stationary energy,
transport, waste, and industrial processes could all be included in an
emissions trading scheme and that agriculture and forestry should be included
once measurement and monitoring concerns are resolved. 211
210
Ibid, 27-28.
Garnaut Climate Change Review, 'Emissions Trading Scheme Discussion Paper' (2008) at 28-29.
212
The Garnaut Climate Change Review interim reports do not consider this legal issue but merely
cite Coase in support of the premise that economic efficiency will be achieved as long as property
rights are fully defined and that completely free trade of all property rights is possible. Ibid, 32.
211
415
regime, there must also be clear rules for the creation, allocation, transfer and
domestic treatment of emission instruments.
213
Ibid, 44.
Ibid,5.
215
Ibid, 41.
216
A similar approach is considered by the Garnaut Climate Change Review, ibid, 17,44.
214
416
217
For example, legal additionality must demonstrate that the abatement of emissions by the project
goes beyond what is required to comply with existing laws and regulations. Issues of contention for
the regulator, particularly in respect of agriculture and forestry projects, will include the selected
baseline for emissions reductions and the eligibility date for the commencement of abatement
projects.
218
The inclusion of these offset credits may also prevent linkages with the EU Scheme which
currently excludes CERs from nuclear and LULUCF and, under certain conditions, large-scale hydro
power projects of over 20MW capacity. However, the New Zealand Scheme does permit the use of
these offsets.
417
Ideally, the current mosaic of emerging emissions trading markets across the
world would merge, ultimately, into a fully functioning, multi-national global
carbon market 220 An illustration of the possible future global carbon market is
depicted in Figure Five. Once those linkages have been established, each linked
market will become vulnerable to the presence of poor governance structures and
policies in those linked countries which could potentially result in a total failure
of the multi-national market.
The above analysis highlights the lack of consistency between the emerging
international, regional and domestic carbon trading schemes, and the variances in
the treatment of tradeable emission instruments between various domestic
jurisdictions.
instrument, no universal carbon price and no universal legal framework for the
carbon market.
219
For New Zealand suggestions see New Zealand Institute of Economic Research, Emissions
Trading Scheme for New Zealand: a report for Business New Zealand (26 March 2007) at
http://www.businessnz.org.nz/file/1188/Emissions%20Trading%20Scheme%20for%20NZ.pdf at 14
June 2008.
220
Cf. Garnaut Climate Change Review which recommends limiting linkages with the CDM market
of the Kyoto Protocol. Garnaut Climate Change Review, 'Emissions Trading Scheme Discussion
Paper' (2008) at 35.
418
voluntary, mandatory, cap and trade and baseline and credit market systems with
incompatible definitions of instruments, trading rules, recognition of abatement
projects, reporting obligations and penalties for non-compliance. The strongest
driver and influence on the design of other markets appears to be the EU Scheme.
However, the EU Scheme is still in its infancy. Phase 1 was a pilot program
deliberately intended to enable the EU to learn by trial and error.221 In this context,
the linkage of these present systems into a multi-national global carbon market is
quite untenable.
Even if the climate change regime was successful in achieving harmony between
the emerging carbon markets it must still contend with the unique legal systems,
onto which these markets are fused, and with their varying approaches to the
creation, treatment and legal protection of emission instruments.
The
221
Frank Convery, Denny Ellerman and Christian De Perthuis, n135, 23, 25.
419
consensus on a global model of property law principles across the disparate civil
and common law systems. However, ideally, all domestic party jurisdictions
would be compelled through an international treaty to enact legislation which
harmoniously recognises these defined allowances and provides consistent
domestic legal protections for their ownership, use and transfer.
420
Regional
EU
ETS
State-Based
RGGI
Market (US)
Voluntary/
Binding
Japan ETS?
New Zealand
ETS
The
Multi-National
Global Carbon
Market
International
Climate
Market
Voluntary
CCX Market
(US)
AUS
Voluntary
ETS
AUS
ETS
421
In addition to the acquisition of credits from the market, there are a number of
potential mechanisms by which large-scale emitters, including the coal industry,
could generate emission reductions to offset other greenhouse gas emissions.
The Earth has a number of natural stocks which are able to absorb carbon. These
include oceans, fossil fuel deposits, the terrestrial system and the atmosphere.222
The terrestrial system includes rocks, sediments, wetlands, forests, soils,
grasslands and agriculture.
plants, their roots and soil. 223 Changes in land use management can also improve
the amount of carbon sequestration in soils such as improved degradation and
erosion controls, rehabilitation of degraded lands, conservation tillage, improved
fertilisation and forage rotations. 224 In addition, there are a number of direct
options by which greenhouse gases may be artificially stored in the geological
foundations of the earth. The procedure can be used to extract carbon from
emitting stacks and to transfer it for ocean sequestration or geological
sequestration using CCS projects. These biological and geological carbon sinks
enable liable parties to implement measures to reduce temporarily their level of
emissions for the relevant commitment period. In addition, provided that they
can be registered and verified, these projects may generate greenhouse gas
emission credits under the CDM or under domestic abatement schemes.
222
Julian Dumanski, Klaus von Grebmer and Christian J Pieri, 'Opportunities in Agriculture and
Forestry to Mitigate Greenhouse; Results of a Scientific Consultation' (St Michaels, 1998) at 2.
223
Ibid.
224
Ibid, 2-3.
422
Accordingly, the following paragraphs will consider the legal rights to store
greenhouse gases in both biological and geological sinks and the associated
regulation of these emission reduction projects under international and national
environmental law. Recommendations will also be provided for reform of these
regulatory arrangements to provide a more consistent, coherent legal approach.
Changes in land use management can also improve the amount of carbon
sequestration in soils such as improved degradation and erosion controls,
rehabilitation of degraded lands, conservation tillage, improved fertilisation and
225
423
forage rotations. 228 These are all changes which can enhance the natural sinks of
the Earth in minimising the amount of atmospheric carbon.
228
229
424
In New South Wales (NSW), the Conveyancing Act 1919 provides for the
creation and ownership of separate carbon sequestration rights in respect of the
land.230 A carbon sequestration rights is defined as a right conferred on a person
by agreement or otherwise to the legal, commercial or other benefit (whether
present or future) of carbon sequestration by any existing or future tree or forest
on the land after 1990.231
The profit prendre deemed to exist in relation to the carbon sequestration right
is described by the legislation as:
(a) the profit from the land is taken to be the legal, commercial or other benefit
(whether present or future) of carbon sequestration by any existing or future tree or
forest on the land that is the subject of the carbon sequestration right.232
These profit prendre provide the holder of the right with an interest in the
land.233 Traditionally, a profit prendre has related to the right to take things
from the land such as part of the soil, minerals, natural produce, fish or wild
animals.234 This is not strictly compatible with sequestration as that relates to the
storage of carbon on the land rather than the taking of a thing from the land.235
Forest covenants are also able to be registered on title which address incidental
matters associated with the carbon rights such as the provision of access to or the
maintenance of trees or forests and the ownership of the trees on the land.236
230
425
A natural resources product agreement may: vest all or part of the natural
resource product in another person; grant another person the right to enter the
land to establish, maintain or harvest the natural resource product or to carry out
works or activities for the natural resource product; or grant another person the
right to deal with the natural resource product. 242 The benefited persons rights
to the natural resource product, under the agreement, are a profit prendre for the
237
426
purposes of the Land Act 1994 or the Land Title Act 1994.243 However, the
legislation states that the vesting of the natural resource product, under the
agreement, does not create an interest in land under the Land Act 1994 or the
Land Title Act 1994.244
encumbrance on the land.246 The proprietor of a carbon right enjoys the legal and
commercial benefits and risks arising from changes to the atmosphere that are
caused by carbon sequestration and carbon release occurring in or on the land.247
In addition, the legislation permits the holder of a carbon right to register carbon
covenants in relation to the land. 248 A carbon covenant becomes a separate
interest in, and runs with, the relevant carbon right as well as attaching to, and
running with, the burdened land. 249
In Victoria, the Forestry Rights Act 1996 permits a land owner to enter into a
forest property agreement which may: grant a right to plant, maintain and harvest
forest property on the land; grant a carbon sequestration right in relation to the
forest property; and vest ownership of the forest property in a third party. 250 A
forest property owner can also enter into a carbon rights agreement which
transfers their carbon sequestration rights to a third party. 251
243
Forestry Act 1959 (Qld) section 61J(5). Land Act 1994 (Qld), Chapter 6, Part 4, Division 8B; Land
Title Act 1994 (Qld), Part 6, Division 4B.
244
Forestry Act 1959 (Qld) section 61J(4).
245
But it cannot be varied, Carbon Rights Act 2003 (WA) ss5,6, 9.
246
Carbon Rights Act 2003 (WA) section 6.
247
Carbon Rights Act 2003 (WA) section 8(1).
248
Carbon Rights Act 2003 (WA) ss10-11.
249
Carbon Rights Act 2003 (WA) section 12.
250
Forestry Rights Act 1996 (Vic) section 5.
251
Forestry Rights Act 1996 (Vic) section 12.
427
Certain formality requirements must be met for forest property agreements and
carbon rights agreements to be valid. 252
The South Australian Forest Property Act 2000 establishes two forms of forest
property agreements; vegetation agreements and carbon rights agreements. The
Act states that the capacity of forest vegetation to absorb carbon from the
atmosphere is a form of property in the nature of a chose in action.258 Under the
Act, a carbon right attaches to the forest vegetation to which it relates, and
ownership of the right passes with ownership of the forest vegetation. 259
However, ownership of the carbon right can be separated from ownership of the
252
428
260
Forest property
emission instrument will depend upon the governing scheme. If it is the Kyoto
Protocol then only temporary instruments are issued for forest offsets and the
instrument will be subsequently cancelled. However, if the instrument has been
sold to the unregulated voluntary market then its treatment will be entirely
contractual and it is possible that it would continue to be bought and sold as an
offset despite the loss of carbon stocks.263
260
Ibid.
Forest Property Act 2000 (SA) ss7, 9.
262
Forest Property Act 2000 (SA) section 7.
263
Its treatment under a regulated domestic carbon trading scheme will depend entirely on the rules
established to deal with this legal issue.
261
429
Entities may also be able to capture the carbon dioxide at its point of source and
artificially store it in formations through the use of CCS technology. CCS
involves the capture of the emissions from mining operations, electricity
generation plants and other industrial sources and the injection of the carbon
dioxide deep into the Earths geological foundations such as deep sea-beds
(Ocean Sequestration) or subterranean formations (Geological Sequestration).264
A critical issue relates to the sovereign rights of nations to physically access the
ocean sub-surfaces and geological formations, under current international laws,
and to store the carbon dioxide in those areas. Accordingly, the key legal issues
to be resolved relate, first, to the rights to physically access the ocean subsurfaces and geological formations to store the carbon dioxide and, second, to the
long term liabilities associated with the storage of that carbon.
264
Elizabeth Wilson and Mark de Figueiredo, 'Geological Carbon Dioxide Sequestration: An Analysis
of Subsurface Property Law' (2006) 36(2) Environmental Law Reporter 10114 at 10114.
265
This is the first geo-sequestration demonstration project in Australia,
http://www.co2crc.com.au/otway/ at 14 June 2008. Another proposed project, the Zerogen integrated
gasification combined cycle with carbon capture and storage in Queensland is still in the approval
application stage http://www.zerogen.com.au/about/timeline at 14 June 2008.
430
The right to sequest carbon will depend upon the location of the proposed storage
activity. Where the geological sequestration is intended to take place within
sovereign territory then regulation will take place at a national level. This will
also be the case where ocean sequestration is to take place within the territorial
sea of a nation. The territorial sea extends out from twelve miles from the
coastline. Projects may also take place within the Exclusive Economic Zone
(EEZ) which extends from the territorial sea out to a maximum of 200 nautical
miles from the baselines of the coast.266 Provided that the nation has claimed the
EEZ, in that area, coastal States have sovereign rights of exploration, exploitation
and management of the natural resources located in the seabed and waters.267
The status of the EEZ varies from country to country. For example, Australia has
claimed its EEZ through the Seas and Submerged Lands Act 1973 (Cth) whereas
the United Kingdom has not claimed its area.
Alternatively, States may exercise sovereign rights to explore and exploit the
natural resources of the sea bed and subsoil of the continental shelf. 268 Beyond
the EEZ is the high seas in which all States are free to carry out activities
provided that due regard is given to the interests of other States and to the rights
under UNCLOS regarding international seabed activities. 269
266
Ray Purdy and Richard Macrory, 'Geological Carbon Sequestration: Critical Legal Issues'
(Working Paper 45, Tyndall Centre for Climate Change Research, 2004) at 12.
267
United Nations Convention on the Law of the Sea 1982 (UNCLOS) (Agreed 10 December 1982,
Entered into force, 16 November 1994)., Article 2(3). Ray Purdy and Richard Macrory, ibid.
268
UNCLOS, n267, Articles 76 and 77.
269
Ibid, Articles 86 and 87.
431
(UNCLOS), London Convention of 1972 and the London Protocol of 1996. The
application of these international agreements is discussed in the following
paragraphs.
UNCLOS seeks to provide a legal order for the seas and oceans and imposes a
number of general obligations regarding the ocean space. UNCLOS imposes a
general obligation on States to protect and preserve the marine environment and
notes that States may exploit their natural resources in accordance with that duty
to protect.270 UNCLOS requires that States:
shall take, individually or jointly as appropriate, all measures consistent with this
Convention that are necessary to prevent, reduce and control pollution of the marine
environment from any source, using the best practicable means at their disposal and
in accordance with their capabilities.271
270
432
dioxide in the sea waters. 274 However, there are a number of difficulties in
bringing such an action for breach including standing and causation issues.275
All
necessary measures includes, inter alia, those designed to minimise to the fullest
possible extent:
the release of toxic, harmful or noxious substances, especially those which are
persistent, from land-based sources, from or through the atmosphere or by
dumping.277
The broad rules and framework of UNCLOS are enhanced by the texts of the
London Convention and the London Protocol. The London Convention seeks to
control pollution of the marine environment including the dumping of waste or
other matter that is liable to create hazards to human health, to harm living
resources and marine life, to damage amenities or to interfere with other
274
W.C.G. Burns, 'Potential Causes of Action for Climate Change Damages in International Fora: The
Law of the Sea Convention' (2006) 2(1) McGill International Journal of Sustainable Development
Law and Policy 27 at 38,41,43. Australia has ratified UNCLOS. The US signed UNCLOS but has not
ratified the agreement.
http://untreaty.un.org/ENGLISH/bible/englishinternetbible/partI/chapterXXI/treaty7.asp at 14 June
2008.
275
Ibid.
276
Ibid, Article 194(2).
277
Ibid, Article 194(3)(a).
278
Ibid, Articles1 (5)(a)(i).
279
Ibid, Article 1(5)(b)(ii).
433
legitimate uses of the sea. 280 Pollution is not defined. The application of the
London Convention is limited, in similar terms to UNCLOS, to the deliberate
disposal at sea of wastes or other matter from vessels, aircraft, platforms or other
man-made structures at sea. 281 The Convention applies to all marine waters other
than the internal waters of States.282
The dumping of certain specified wastes, as set out in the Annexes, is prohibited
in the London Convention. 283 In addition, specified wastes above a certain
amount require a special permit whilst other wastes are able to be dumped in
accordance with a general permit. 284 Carbon dioxide is not specifically included
in the Annexes to the Convention.
The London Convention operates in parallel with the London Protocol, which
entered into force in 2006, and it is being incrementally ratified by the parties.
280
IMO, Convention on the Prevention of Marine Pollution by Dumping of Wastes and Other Matter,
the London Convention 1972 (the) (entered into force 1975), Article 1.
281
Ibid, Article 3 (1)(a).
282
Ibid, Article 3(3).
283
Ibid, Article 4(1).
284
Ibid.
285
Ibid, Annex 1(11). Purdy and Macrory, n266, at 21-22.
286
Purdy and Macrory, n266, 25.
287
London Convention, n280, Annex 1(11)(f).
434
The primary objective of the London Protocol is for the parties to:
individually and collectively protect and preserve the marine environment from all
sources of pollution and take effective measures, according to their scientific,
technical and economic capabilities, to prevent, reduce and where practicable
eliminate pollution caused by dumping or incineration at sea of wastes or other
matter.288
land.292
The London Protocol applies the precautionary principle in the following terms:
contracting Parties shall apply a precautionary approach to environmental
protection from dumping of wastes or other matter whereby appropriate
preventative measures are taken when there is reason to believe that wastes or other
matter introduced into the marine environment are likely to cause harm even when
there is no conclusive evidence to prove a causal relation between inputs and their
effects.293 (emphasis added)
288
IMO, Protocol on the Prevention of Marine Pollution by Dumping of Wastes and Other Matter, the
London Protocol 1996 (entered into force 2006), Article 2.
289
Ibid, Article 1(10).
290
Ibid, Article (1)(4).
291
Ibid, Article 1(7).
292
Ibid.
293
Ibid, Article 3(1).
435
The London Protocol prohibits the dumping of any wastes or other matter other
than those listed in Annex 1.294 Annex 1 now includes CO2 streams from CO2
capture processes in addition to inert, inorganic geological material and
organic material of natural origin.
permitted following the issue of a permit for the activity by the International
Maritime Organisation. Approval to issue the permit will be subject to guiding
regulations for carbon sequestration which are still to be agreed by the parties.
The amendments to the London Protocol specify that carbon dioxide streams
may only be considered for dumping, if: disposal is into a sub-seabed geological
formation; they consist overwhelmingly of carbon dioxide (they may contain
incidental associated substances derived from the source material and the capture
and sequestration processes used); and no wastes or other matter are added for
the purpose of disposing of them. 295
of carbon
294
295
436
Petroleum Resources in November 2005. 296 These regulations identify the key
areas of concern regarding CCS activities which require a nationally consistent
policy response. These legal issues include:
The regulation does not yet have legal status. Until specific, consistent,
legislation is enacted in Australia to address the novel legal issues associated
with CCS, regulation of projects will largely occur through the amendment and
extrapolation of existing environment and planning legislation and petroleum
exploration and mining regulations. 297 Accordingly, the core legal concerns to be
addressed in any consistent regulatory frameworks relate to the environmental
assessment and approval processes to be applied to these projects, the right to
access the project site, property rights in the stored substance and responsibilities
(and liabilities) associated with the leakage of carbon dioxide. These issues are
discussed further in the following paragraphs.
296
Ministerial Council on Mineral and Petroleum Resources, 'Carbon Dioxide Capture and Geological
Storage: Australian Regulatory Guiding Principles' (Ministerial Council on Mineral and Petroleum
Resources, 2005) at 4-5, http://www.ret.gov.au/General/ResourcesCCS/Pages/RegulatoryGuidingPrinciplesforCarbonDioxideCaptureandGeologicalStorageCCS.aspx
at 14 June 2008. The Federal House Standing Committee on Science and Innovation commenced an
inquiry into geosequestration technology, including regulatory and approval issues, in June 2006.
http://www.aph.gov.au/house/committee/scin/geosequestration at 14 June 2008.
297
The Federal Government recently released an exposure draft of the Offshore Petroleum
Amendments (Greenhouse Gas Storage) Bill 2008 (Cth) aimed at regulating the exploration and
storage activities for CCS projects undertaken in the offshore waters of Australia. The regime intends
for CCS projects to be handed over to the Federal government in the months or years following
injection and for monitoring of the site to then reside with the government. The bill is silent on the
long-term liability of the government for any leakage of the stored gases.
437
438
A large geological sequestration project proposed for the Gorgon area gas
fields, off the coast of Western Australia, resulted in the enactment of
specific legislation for the sequestration activities of that project.
That
303
Petroleum and Gas (Production and Safety) Act 2004 (Qld), ss12 and 13.
Petroleum and Gas (Production and Safety) Act 2004 (Qld) Part 6.
305
Petroleum and Gas (Production and Safety) Act 2004 (Qld), ss 212-214. This is likely to render
the state responsibility for the liabilities associated with any leakage of the stored gases.
306
Barrow Island Act 2003 (WA) section 13.
307
Barrow Island Act 2003 (WA) section 11.
304
439
principle state that the owner of land enjoys exclusive rights of ownership
from the heavens above to the centre of the Earth below. 308 The exact depth
of ownership remains largely unresolved but will include sufficient depth to
permit access to mineral and geothermal resources. 309 In addition, certain
statutory assignments act to place rights to minerals found within the subsurface of the land in the State.
The question is then; what rights of access and ownership must be obtained
by private entities in order to store such carbon dioxide within the Earths
core? Furthermore, what liabilities may accrue for any harm caused as a
result of such storage? Where the land is not vested in the Crown, and
ownership does not reside in the project developer, access will need to be
secured through a combination of leasing and licensing arrangements. As
well as access, project developers would need to agree to contractual
provisions addressing a number of legal issues including:
indemnities for any damage caused from the presence of the project;
308
Derived from the maxim cuis est solum eius est usque ad coelum et ad inferos referred to in the
report of Bury v Pope (1586) Cr Eliz 118; 78 ER 375.
309
Geothermal Kinetics Inc v Union Oil Co of California 141 Cal Rptr 879 (1977).
440
First,
owners of the carbon and owners or occupiers of the land could be liable for
the unlawful disposal of waste, and contamination of land, if exemptions are
not obtained under the local environmental protection legislation.310 Second,
leakage of the stored carbon may occur. This could occur in two different
ways.
310
For example, in Queensland under Part 8, ss 442, 443 of the Environmental Protection Act 1994
(Qld) and the Environmental Protection (Waste Management) Regulation 2000 (Qld). In New South
Wales under ss 115, 142A,143 of the Protection of the Environment Operations Act 1997 (NSW).
311
James McLaren and James Fahey, 'Key Legal and Regulatory Considerations for the
Geosequestration of Carbon Dioxide in Australia' (2005) 24(1) Australian Resources and Energy Law
Journal 45 at 51.
312
For example, in Queensland this is an offence under section 430 of the Environmental Protection
Act 1994 (Qld). The maximum penalty is 2000 penalty units or 2 years imprisonment.
313
IPCC, 'Special Report on Carbon Dioxide and Storage: Summary for Policy Makers and Technical
Summary' (Approved and Accepted by IPCC Working Group III and 24th Session of the IPCC,
Montreal, Intergovernmental Panel on Climate Change, 2005)
http://www.mnp.nl/ipcc/pages_media/SRCCS-final/ccsspm.pdf at 14 June 2008. The IPCC report
441
significant quantities of carbon leakage could result in risks to human life and
health, particularly if those quantities leak into a confined area. The IPCC
considers that concentrations greater than seven to ten per cent of carbon
dioxide in the air would pose immediate dangers to human life and health.314
Gradual and diffuse leakage would also pose a risk to local groundwater and
soils.315 Accordingly, project developers, owners and occupiers of the land
and other responsible entities could be liable for causing environmental harm
under existing environmental protection statutes in Australia. 316
considers that it is very likely that 99 per cent of the stored carbon would remain over a 100 year
period and it is likely that 99 per cent would remain over a 1000 year period, at 31.
314
Ibid, 31.
315
Ibid.
316
Through the statutory offences of causing serious or material environmental harm or
environmental nuisance, for example under ss 436, 437, 438, and 440 of the Environmental
Protection Act 1994 (Qld) and of negligently causing harmful substances to leak, for example under
ss 116 and 126 of the Protection of the Environment Operations Act 1997 (NSW). See also the
Environment Protection Act 1986 (WA), Environment Protection Act 1993 (SA), Environment
Protection Act 1970 (Vic) and the Environmental Management and Pollution Control Act 1994 (Tas).
442
These agreed principles should provide consistent answers to the following legal
issues:
the allocation of responsibility for the project and for any arising
liability;
317
The IPCC recommends the introduction of policies that create a real or implicit price of carbon and
could create incentives to invest in low-greenhouse gas alternatives. IPCC 2007 IPCC Fourth
Assessment Report, Working III Report: Mitigation of Climate Change Summary for Policy
Makers at [23].
443
requirements
for
insurance,
guarantees
and
other
financial
arrangements.
Clearly there is significant work to be done on achieving a consistent approach to
the legal regulation of CCS both in Australia and internationally.
climate market, combined with the lack of clear direction to nations mandating
the legal features of domestic carbon markets, has resulted in a multitude of
incompatible world best market designs. The resulting global carbon market
is emerging as a collection of immature, fundamentally disconnected, carbon
markets with little prospect for optimal performance. The establishment of a
truly multi-national global carbon market will require significant legal reforms
444
Given the depth and urgency of emission reductions required to minimise the
adverse impacts of climate change, society has placed a disconcerting emphasis
on the curative abilities of the carbon market to heal societys addiction to fossil
fuel use. Market incentives alone do not appear to be sufficient to promote the
necessary, short-term modifications in energy use and practices. 319 Global and
domestic regulation of climate change will be substantively ineffective if
excessive faith is placed in the operation of market incentives without the
supporting backbone of a strong regulatory structure to achieve abrupt and longterm behavioural changes. The international community must achieve a legal
framework which combines the benefits of harnessing innovation, through the
tradeable emission instrument and carbon market, with the strengths of traditional
command and control regulation.
stabilisation pathway and the resulting caps adopted for each carbon market
system are critical. The targets of the first commitment period of the Kyoto
Protocol are clearly inadequate to achieve the environmental objective of
avoiding adverse climate change. Furthermore, the international regime permits
the creation of additional offsets from the implementation of emission reduction
projects with the effect of increasing the cap for the scheme. Given the absence
318
The nature of the property rights in emissions will depend upon what is being done with the
greenhouse gases eg emission, sequestration or CCS and the jurisdiction in which it takes place. In
addition to property law principles, these rights will also be affected by any applicable contractual
provisions; rules of the emission trading scheme; and domestic regulatory regimes.
319
See, for example, Nicholas Stern, 'Key Elements of a Global Deal on Climate Change' (London
School of Economics and Political Science, 2008) at 20 other policy instruments will also be
needed.international emissions trading is likely to be necessary but not sufficient to meet a 50% by
2050 [target].
445
446
This thesis has examined critically the potential role of the law in achieving the
significant and rapid reductions in global greenhouse gas emissions required to
avoid the adverse impacts of climate change. It has done so through an analysis
and evaluation of the emerging regulatory, liability and market approaches under
international and Australian laws. A number of deficiencies have been identified
in these emerging legal approaches, at international and national levels, and
recommendations have been presented regarding necessary reforms.
The
The law has traditionally formed a critical backbone to any effective regime to
address emerging social concerns. As has been stated:
for those who suffer, in body or in spirit, from the imperfection of the human world
as it is, the best way to make a better world is the way of law.1
The role of law is to structure our society and to serve social policies through a
powerful array of statutes, courts, police, and devices such as taxes, permits,
insurance, subsidies and, ultimately, criminal sanctions. 2 Law has traditionally
Phillip Allott, 'The True Function of Law in the International Community' (1998) 5 Indiana Journal
of Global Legal Studies 391 at 413.
2
Nicholas A. Robinson, 'A Legal Perspective on Sustainable Development' in J Owen Saunders (ed),
The Legal Challenge of Sustainable Development: Essays From the Fourth Institute Conference on
Natural Resources Law (1990) Ottawa, Canadian Institute of Resources Law, 15 at 15.
447
served the role of protecting the status quo, maintaining traditional liberal values
and providing a stable social and economic environment. 3 The law is able to
react to changing priorities in our society but it does so through the sedate,
incremental evolution of the legal system. In this respect:
what law does is to allow a society to choose its future. Law is made in the past, to
be applied in the present, in order to make society take a particular form in the
future.4
It is concluded that the law does have a significant role to play in any effective
response to the global threat of climate change. However, in attempting to
respond to climate change, the law is confronted by a unique set of challenging
circumstances that it has never before confronted. The phenomenon of climate
change is temporally and geographically challenging and it is scientifically
complex and uncertain. Any effective legal response must cross the public and
private divide, through international and domestic spheres, and must achieve
unprecedented levels of national and international cooperation.
The current
in particular, and
societys
Ibid,19.
Phillip Allott, n1, 399.
5
Durwood Zaelke, Matthew Stilwell and Oran R Young, 'Compliance, Rule of Law and Good
Governance, What Reason Demands: Making Law Work for Sustainable Development' in Durwood
4
448
Consequently, the law does have the potential to be a dynamic, and powerful,
instrument for reform but to do so it must be used not only reactively, in an ad
hoc and piecemeal fashion, but also proactively to stimulate social reform and
drive behavioural changes to reduce global emissions and respond to the threat of
climate change effectively.6 To achieve this, society must harness the benefits of
a range of traditional and modern legal instruments including regulation, liability
and market approaches. Furthermore, each of these critical components must be
reformed to enhance their complementary operation and to ensure an integrated
legal response is undertaken by the legislature, executive and judiciary.
International
sanctions for non-compliance are lacking in any clear deterrent value which
may result in an accepted culture of non-compliance with these international
agreements. The emphasis on flexibility and cost-effectiveness under the
Kyoto Protocol, and the absence of directions regarding domestic abatement
initiatives; the design of domestic carbon markets; and the consistent national
treatment of emission instruments, will all operate to undermine the
effectiveness of the international regime. The result is a regulatory gap in
Zaelke, Donald Kaniaru and Eva Kruzikova (eds), Making Law Work: Environmental Compliance
and Sustainable Development: Volume 1 (2005) London, Cameron May, 29 at 29.
6
Nicholas A. Robinson, n2, 15.
449
II Within Australia
In recent years, the scientific reports from the Intergovernmental Panel on
Climate Change (IPCC) have become more and more blunt in their warnings
as to the seriousness and urgency of the threat of climate change. Despite
this, some climate sceptics have remained in the international community
amid concerns regarding the economic implications of achieving rapid and
substantial reductions in greenhouse gas emissions. As a result, in Australia,
there have been only limited regulatory initiatives implemented to address
climate change and the emphasis has been on voluntary, ad hoc, programs.
The resulting multiples of federal, state-based and local climate change
policies, rules and decision-making principles are legally disparate,
uncoordinated and predominantly ineffective in responding to climate
change.
450
B Liability Approaches
The absence of the comprehensive mitigation of greenhouse gas emissions in
Australia, in conjunction with the general lack of progress by the global
community, means that some adverse impacts of climate change are inevitable.
As a result, there is a need for a new regulatory approach, both internationally
and within Australia, to promote adaptation to these impacts including measures
to enhance the levels of environmental sustainability of our society. Moreover,
the international climate change regime remains silent on the principles for the
allocation of legal responsibility for the harm caused by the impacts of climate
change. In the absence of a customised domestic statutory regime, it will fall to
the Australian common law to distribute liability for the harms and losses
experienced as a result of greenhouse gas emissions and the consequential
impacts of climate change. However, the scientific complexities and causative
uncertainties of climate change will present almost insurmountable obstacles to a
successful suit for loss caused by climate change under the principles of nuisance
and negligence. In particular, it would be a near impossible task to meet the
451
threshold for establishing a causative link between emissions, climate change and
the harm suffered given the inherent complexity and unpredictability of the
climate system.
New
C Market Approaches
In an endeavour to address the issues of climate change swiftly and costeffectively, the international community has adopted the innovative legal
instrument of the tradeable emission instrument within an international trading
system. This has acted as a catalyst for the design and implementation of a range
of emerging domestic, regional and global markets, both voluntary and
mandatory, which are intended to link ultimately into a multi-national, global,
carbon market. However, the ad hoc design of these schemes, at international
and domestic levels, has created a patchwork of disparate systems that are
overwhelmingly incompatible in their current forms and could forge only a
legally dysfunctional, environmentally ineffective and economically inefficient
multi-national market system.
The central legal feature in all of these carbon trading schemes must be a strict,
enforceable and deep target for reducing emissions, as indicated by the IPCC, to
enable the global community to avoid the adverse impacts of climate change. To
respond effectively to climate change, and achieve these substantial reductions in
global emissions in the most cost-effective manner, these trading regimes must
452
instruments have been arbitrarily fused onto existing domestic legal systems with
little or no regard for their impact on, and interaction with, existing laws and
principles. These laws and principles, particularly those relating to property, are
longstanding, well-established components of our legal system and cannot be
capriciously revoked or manipulated to respond to this international artificial
creation of new forms of legal rights. Nevertheless, these artificial constructs
now require the creation of new forms of property rights that are specifically
designed to recognise and accommodate ownership in: rights to emit greenhouse
gases; sequestered greenhouse gases in offset projects; and stored greenhouse
gases in CCS projects as well as the development of principles to address the
complex legal interplay between these three categories of legal rights and duties.
Consequently, responding to
J Robinson et al, Climate Change Law: Emissions Trading in the EU and the UK (2007) London,
Cameron May, Foreword at 23.
8
Heleen de Coninck, 'Designing Institutions for Climate Change: Why rational design involves
technology' (Paper presented at the Amsterdam Conference on Human Dimensions of Global
Environmental Change, Amsterdam, May 2007) at 10.
453
with
appropriate
monitoring
and
enforcement
processes.
obligation to make good and surrender acquired instruments from the market
equal to the excess emissions. The Federal government must also facilitate and
regulate the creation of offsets from environmentally credible projects within
Australia as well as the implementation of appropriate carbon capture and storage
projects (or CCS). It is also recommended that authorisations to emit include a
duty to take all reasonable steps to mitigate or avoid the greenhouse gas
emissions from an activity including through the mandated use of alternative
energy sources; technological changes; and enhanced efficiency of energy use.
This is in accordance with the approach of the international climate change
454
It is also imperative that the corporate sector is held accountable for their
contribution to the loss or harm experienced by the Australian community as a
result of the impacts of climate change. In accordance with the polluter pays
principle, entities should be required to pay for the proportional costs associated
with their pollution through, for example, an obligation to make payment into a
national trust in return for authorisations to emit. 9 Funds from that trust could
then be used to promote adaptation in the community to minimise loss or damage
and to provide fair and just compensation for climate change related harm. 10 The
Support for this approach can be found in the following comment: putting a price on greenhouse
gas emissions should be a central pillar of mitigation policy. It is crucial to make polluters pay for the
damages they cause in order to change behaviour on the massive, widespread, and cross-cutting scale
necessary to tackle climate change, Nicholas Stern, 'Key Elements of a Global Deal on Climate
Change' (London School of Economics and Political Science, 2008) at 18.
10
This fund will have multiple functions to perform in allocating resources for loss or damage to
persons, private property and community infrastructure as well as facilitating access to insurance and
455
common law also has a role to play in ensuring justice is served in relation to past
emissions, and in particular, for the continued large-scale emissions following the
clear scientific warnings of the IPCC. New legal principles will need to be
devised which are fair and transparent whilst establishing appropriate evidentiary
thresholds to accommodate the prevailing scientific uncertainty and give proper
effect to the precautionary principle in practice. Once again, such revolutionary
developments in the law more appropriately reside in the jurisdiction of the
legislature.
to protective measures to enable the community to take steps to protect against the risks of climate
change. The administration of the fund could take on a similar form to the Superfund established in
the US to deal with contaminated land http://www.epa.gov/superfund/ at 23 June 2008.
11
Andrew Gouldson and Joseph Murphy, Regulatory Realities : the implementation and impact of
industrial environmental regulation (1998) London, Earthscan at 3.
456
informing the public and in promoting acceptance and active compliance with
this new era of environmental consciousness.
The potential role of law in responding to the impacts of climate change does not
stop there.
requires the law to play a proactive role in driving changes across social,
economic and ecological spectrums. The dual goals of emission reductions and
enhanced sustainability must be embedded rapidly in all levels of law making
from the global, to the national, and the local with effective governance across
and within the public and private spheres. A holistic and integrated approach to
addressing climate change is required within all domestic jurisdictions and
particularly, in Australia given the fragmented approach to environmental
regulation. It is only national governments that can respond effectively to these
international obligations. This requires a re-interpretation and transformation of
the existing domestic regulatory, liability and market approaches. It also requires
that the principles of environmental sustainability, or ESD, are thrust from the
periphery of decision-making to the central touchstone against which all
domestic laws and actions are assessed. In responding to the consequences of
climate change, environmental sustainability seeks to manage societys use of the
Earths natural energy sources and sinks and to maintain optimal and sustainable
ecological systems for the benefit of present and future generations. Crucially, it
also requires that concessions be made by private interests to protect global
public goods including through the universal acceptance of emission reduction
obligations. Such reform is imperative given the rate and scope of social and
12
Nigel Bankes, 'Legal Prescriptions for an Atmosphere That Will Sustain the Earth' in J Owen
Saunders (ed), The Legal Challenge of Sustainable Development: Essays From the Fourth Institute
Conference on Natural Resources Law (1990) Ottawa, Canadian Institute of Resources Law, 155 at
157.
457
This entrenchment of these concepts of ESD within the Australian legal system
requires the adoption of an ambitious new legislative standard that demands the
integration of the principles of environmental sustainability, precaution and intergenerational equity in the creation and application of all laws. Consideration and
promotion of these principles must be made a mandatory component of all rule
making and approval functions across Australia rather than residing merely in the
discretionary functions of authorities. It is unlikely that this can be achieved
through the adoption of a new government policy alone. The magnitude of the
required attitudinal shift means such a principle should be legislatively or
constitutionally grounded and embedded nationally as a supreme imperative
within all aspects of rule-making, decision-making and enforcement.
The
CONCLUDING COMMENT
In undertaking a critical analysis of the existing legal response to climate change,
at an international level and within Australia, one would expect to encounter a
complementary portfolio of integrated legal instruments which create legal rights
and duties through regulation; address non-compliance and unlawful acts through
liability provisions; and promote innovation to minimise global greenhouse gas
emissions through market measures. In reality, this thesis has concluded that the
current legal response is comprised of a series of discordant, ad hoc, regulatory,
liability and market approaches. The international and domestic legal regimes
are currently clearly inadequate for the task of regulating greenhouse gas
458
459
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