Chapter 8: Climate Change

Key points

  • Climate change is likely to have major impacts on biodiversity and, as such, it should be considered as part of this review.
  • The Australian Government is implementing a strategy for tackling climate change in Australia. This strategy is built on three pillars: reducing Australia’s carbon pollution; adapting to unavoidable climate change; and helping to shape a global solution.[1]
  • This chapter considers the potential for the EPBC Act to address the first two pillars of the Australian Government strategy – mitigation of climate change via a ‘greenhouse trigger’, and adaptation to climate change through changing impact assessment and biodiversity protection measures.
  • The relevance of a ‘greenhouse trigger’ depends on the implementation of the Australian Government’s proposed Carbon Pollution Reduction Scheme (CPRS), and whether a trigger would be complementary to the CPRS.

Climate change adaptation and mitigation

8.1In responding to climate change there are two potential policy approaches:

  • The first is climate change mitigation, which attempts to reduce the emission of greenhouse gases[2] into the atmosphere and subsequently reduce anthropogenic climate change. Possible mitigation measures include traditional command and control responses such as a ‘greenhouse gas trigger’, and economic instruments, such as a capandtrade scheme or a carbon tax.
  • The second policy approach is climate change adaptation. Adaptation has been described as ‘the principal way to deal with the unavoidable impacts of climate change. It is a mechanism to manage risks, adjust economic activity to reduce vulnerability and to improve business certainty’.[3] Adaptation for the purpose of biodiversity protection would involve responses that would allow for risk management and help maintain the diversity and perseverance of species.
  • Submissions to this review considered that the EPBC Act may be a vehicle for both mitigation of, and adaptation to, climate change. This chapter deals with these approaches separately.

Incorporating climate change in the Act’s objects

8.3A number of submissions indicated that the profile of climate change and its treatment under the Act would be improved if climate change was referenced in the objects of the Act.[4] The Southern Councils Group submitted that given ‘the seriousness of global warming, consideration should be given to listing greenhouse gas emissions as a necessary consideration either separately or in the context of ESD’.[5]

8.4It was suggested this would improve outcomes for mitigation and adaptation. The concept of changing the objects of the Act is discussed further in Chapter 2 of this report.

Climate change mitigation

Current provisions of the Act

8.5When making a controlled action decision, decision-makers under the EPBC Act are not required specifically to consider greenhouse gas emissions. This principle was confirmed in the Your Water Your Say case, where it was found that:

To establish the ground that a decision-maker has failed to take a relevant consideration into account … it must be shown that he or she was bound by law to have regard to the particular consideration … The question of greenhouse gas emissions was not such a matter.[6]

8.6This confirms the previous case Wildlife Preservation Society of Queensland Proserpine/Whitsunday Branch Inc v Minister for the Environment& Heritage,[7] where an application for judicial review was brought pursuant to the Administrative Decisions (Judicial Review) Act 1977 challenging a decision deeming two coal mines as not controlled actions. It was argued that there was a causal link between the mining and the burning of coal, and protected matters under the EPBC Act, and that this amounted to a significant impact on these matters. The judge in this case, Dowsett J, dismissed the claims, and concluded that he was:

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.[8]

Key points raised in public submissions

Rationale for mitigation under the EPBC

8.7Submissions were conscious that ‘when the Act was passed climate change was not perceived as the threat it now is.’[9] Environment groups noted that climate change will have severe impacts on biodiversity.[10]

8.8It was suggested that Australia’s international obligations demand action on climate change.[11] The NSW young Lawyers contended that ‘any genuine and progressive commitment to the Kyoto Protocol means direct implementation of statutory triggers, which can effectively catch and address projects posing serious threat to carbon reductions’.[12]

8.9The Australian Network of Environmental Defender’s Offices (ANEDO) suggested that Australia’s greenhouse obligations are less prescriptive than was suggested by the NSW young Lawyers and rather ‘require the Commonwealth to take domestic action to mitigate our emissions’[13].

8.10Submissions also noted that a greenhouse gas trigger was previously proposed by the Australian Labor Party and was part of the 2007 ALP election platform.[14]

8.11While the need to ‘do something’ about climate change because it is the ‘single greatest threat to our environment’[15] was expressed forcefully in submissions, there was less discussion about why a greenhouse gas trigger was a better option than other mitigation mechanisms. The urgency of climate change mitigation was stressed by environment groups. Greenpeace commented that:

Climate change poses a significant threat to the global and Australian environment. There is increasing evidence from the natural world that climate change is happening faster than predicted by the 4th Assessment Report of the Intergovernmental Panel on Climate Change.[16]

8.12Environment Tasmania, commenting on the need for urgent action, stated that the focus should be on mitigation rather than adaptation:

The abatement of emissions, rather than post-emissions amelioration is of prime importance given the need to de- carbonise economies in the next few decades in order to avoid catastrophic and runaway climate change.[17]

8.13Submissions noted that the Act does not allow for consideration of climate change, or that climate change is not considered in the implementation of the Act,[18] and that this arises from the difficulty in causally linking greenhouse emissions and a significant impact on a protected matter.[19] In a case study on a referral of an open cut mine coal mine at Anvil Hill, Greenpeace noted that ‘most greenhouse intensive projects are not referred’ under the EPBC Act.[20] The Queensland Conservation Council noted further that ‘the Minister has no grounds to require offsets or abatement measures in approval conditions’.[21] It should be noted here that while this is generally the case, it may not be so for projects where the ‘environment’ is the matter protected.

8.14The view was put forward that not having a greenhouse gas trigger was a shortcoming, or a ‘glaring omission’ in the legislation.[22] Dr Chris McGrath suggested that an:

anomalous situation exists, whereby the EPBC Act aims to protect matters of NES such as World Heritage properties, but does not effectively regulate the greatest threat to those matters—climate change. This is like having a comprehensive criminal law that does not address illegal drugs.[23]

8.15The logic behind this assumption, that greenhouse gas mitigation is a natural function of environmental protection and biodiversity conservation legislation, is based on a purposive analysis of the Act, whereby the functions of the Act should flow from its objects. In this light, Environment Tasmania claimed that ‘the ignorance of the Act [of climate change] severely devalues the Act’s intentions in achieving sound environmental outcomes.’[24] Another view is that the suitability of including a greenhouse gas trigger should be judged on the structure of the Act, that is, whether a command and control regulatory regime based around assessment and approval of individual actions is the best delivery mechanism for greenhouse abatement.

Greenhouse gas trigger – mechanism and design

8.16The most commonly proposed greenhouse mitigation mechanism in public submissions was a greenhouse gas trigger. The basic design of a trigger involves the insertion of greenhouse gas emissions as a new matter of national environmental significance (NES) under the Act. The trigger would operate by setting a threshold of emissions released over a certain period – or over the life cycle of the project;[25] projects which produce above that threshold will need to undergo assessment and approval under the Act. It is proposed that through the assessment, emissions would be avoided or reduced by mandating bestpractice technology, or offset.

8.17Environment groups also suggested that a greenhouse gas trigger would ‘support the transition to a cleaner economy based on renewable energy and green collar jobs’[26]. The Ourimbah Precinct Committee suggested that the benefit of a greenhouse trigger would be that emissions from particular industries ‘should be made explicit and be defended by those who would profit from the developments’.[27]

8.18Proposed thresholds for a trigger varied, as did the specifics of proposals. Dr Chris McGrath’s proposal trigger, which received support in a number of subsequent submissions, set a limit of between 25,000-100,000 tonnes of carbon dioxide equivalent.[28]

8.19An alternative proposal put forward by Climate Action Network Australia would prohibit the construction or expansion of coal fired power plants; or construction or expansion of coal mines; or a change in land use of land clearance resulting in emissions greater than 125,000 tonnes of carbon dioxide equivalent per year; or logging in mature forests.[29] It was suggested that the prohibition would operate similarly to the current EPBC Act controls on uranium mining. Greenpeace supported these prohibitions on coal mines and power stations, and also proposed a requirement for assessment of synthetic fuel projects.[30]

8.20If a greenhouse trigger were inserted into the Act, a number of consequential amendments would be required. Dr Chris McGrath supports insertion of specific criteria into the Act guiding the assessment of carbon intensive projects which would ensure ‘best practice environmental management’.[31] Greenpeace also provided criteria for assessing the acceptability of greenhouse gas emission intensive projects, where all less intensive alternatives must be investigated, all mitigation or avoidance options pursued and any remaining emissions permanently offset.[32] The Conservation Council (ACT Region) suggested stronger provisions, which would create a cap for the total emissions an action could produce.[33] Climate Action Network Australia proposed that definitions relating to climate change and associated issues, and greenhouse gas emissions-specific penalty provisions also be inserted into the Act.[34]

8.21The Greater Mary Association proposed a different model, whereby a mechanism should be available to compare the greenhouse gas emissions produced by an action against alternative proposals. This would then go to determining the acceptability of the project for the purposes of approval.[35]

8.22A number of submissions proposed mechanisms that would result in biodiversity protection that would have a dual function of protecting ‘the carbon stored in natural ecosystems (‘green’ carbon’).[36] The Green Institute submitted that ‘green carbon stores are effectively permanent because their biological diversity makes them selfgenerating, resilient and adaptive’.[37]

8.23One option for greenhouse gas abatement is the greater use of nuclear power. It is noted that the EPBC Act currently requires approval for the undertaking of nuclear actions.

Submissions opposed to inserting greenhouse mitigation measures into the Act

8.24The National Association of Forest Industries disagreed with proposals to ‘lock up’ carbon in forests. They submit that the forestry is the only carbon positive industry. They quote the Fourth Assessment Report of the Intergovernmental Panel on Climate Change, which states that production forestry will play an important role in greenhouse gas abatement.[38]

8.25A number of other industry groups were also opposed to the insertion of mitigation measures into the EPBC Act. It was suggested that a greenhouse trigger would be duplicative to other carbon reduction methods.[39] The Australian Petroleum Production and Exploration Association (APPEA) contended that:

The rationale for capturing projects that emit a threshold amount of CO2-e per a year or during the life of a project cannot be sustained in today’s climate change landscape. The introduction of a greenhouse trigger into the EPBC Act only duplicates, inefficiently at that, the raft of current and future greenhouse policy measures’.[40]

8.26APPEA also criticised the command and control regulation of emissions through a greenhouse trigger. They contend that:

Implementing a greenhouse trigger in the EPBC Act potentially leads to a range of economically inefficient outcomes including having Government determine:

  • technology;
  • production processes; and
  • energy inputs.

Current and planned policies bring greenhouse emissions into the business decision process more effectively and efficiently.[41]

8.27The National Generators Forum expressed:

caution about the addition of climate change as a matter of NES. The issue is global and generic in nature and it would be difficult to transcribe into a matter of NES for assessment purposes as virtually any action may be considered to have climate change implications.[42]

8.28The National Association of Forest Industries suggests that there is ‘a lack of supporting climate change policy’ for a greenhouse trigger.[43] Woodside are also critical of proposals for a greenhouse gas trigger because it would result in investment uncertainty.[44]

8.29An additional concern put forward by the Australian Property Institute is that a greenhouse gas trigger would ‘lead to a significant number of development applications being referred to the Commonwealth for determination, resulting in an indefinite timeframe for resolution of those development applications.’[45] They indicate however, that clear targets and the insertion of appropriate timeframes would reduce these negative outcomes.

Carbon Pollution Reduction Scheme (CPRS)

8.30In public submissions there was limited detailed discussion of the interaction of a proposed greenhouse gas trigger and the Australian Government’s proposed emissions trading scheme – the CPRS.

8.31Environment groups noted what they believed to be the low targets and limited coverage of the CPRS, and argued that it was not a panacea to greenhouse gas emissions.[46] They therefore concluded that there was a need for a greenhouse gas trigger as an additional measure.[47] Dr Chris McGrath notes that:

The [CPRS] commencing in 2010 will not avoid severe impacts to Australia’s major natural assets such as the Great Barrier Reef and, consequently, will not be effective in avoiding dangerous climate change.[48]

8.32The NSW young Lawyers Committee also submitted that the exemptions in the proposed CPRS, such as agriculture and emission intensive trade exposed industries, could potentially be covered by a greenhouse gas trigger.[49]

8.33ANEDO submitted that the CPRS sets a target, but the scheme does not show how mitigation should specifically occur. It submits that assessment of greenhouse intensive projects under the EPBC Act could provide this missing detail.[50]

8.34Moreland Energy Foundation submitted that:

A greenhouse trigger would complement existing Government policy measures to address Australia’s greenhouse gas emissions by ensuring that projects which are likely to create significant emissions are assessed and their impact minimised or prevented.[51]

8.35Another argument, put forward by the North Queensland Conservation Council, noted the difficulty in achieving the proposed target of 60% reductions in greenhouse gas emissions by 2050 and suggested that this will ‘require the government to exploit every possible opportunity to ensure that new projects minimise their emissions.’[52]

8.36Contesting these points, industry groups strongly indicated that a greenhouse gas trigger would not be complementary to the CPRS. BP Australia submitted that:

With the introduction of the [CPRS], it is not clear why additional measures to address climate change are required in the Act. By introducing a price on carbon through the CPRS, a project proponent must address the issue of greenhouse gas emissions and decide how to manage their liability as part of their business case. Additional legislative frameworks through the Act are therefore not required.[53]

8.37APPEA specifically addresses the issue of complementarity:

More recently the Garnaut Report noted the role of complementary measures is to ‘lower the cost of meeting emission reduction trajectories, as well as adapting to the impacts of climate change by addressing market failures’. It is clearly the case that implementing a greenhouse gas trigger does not translate into addressing a market failure above and beyond current greenhouse policies.[54]

8.38APPEA further indicate that the CPRS is ‘acknowledged as being the lowest cost abatement policy to reduce carbon emissions’[55] and that ‘the EPBC Act does not and can not provide the appropriate legislative framework for addressing climate change.’[56] The National Generators Forum suggested that a CPRS would more effectively and efficiently address issues with the emission of greenhouse gases.

8.39The issues of efficiency in having a CPRS and a greenhouse gas trigger are addressed by Woodside Energy, who suggest that, once the CPRS is operating, a greenhouse gas trigger will:

limit choices properly made by the project proponents to respond to the market created by the emissions trading scheme; they pose significant risk of arbitrarily burdening projects with unnecessarily high costs, are likely to duplicate [CPRS] responses and offer little prospect of a net environmental or economic benefit either to the developer or the community.[57]

8.40The Government of Victoria also commented that:

Once a ‘cap’ is set under the CPRS, there is no environmental benefit to be gained from assessing greenhouse gas emissions associated with a proposal, as reducing the emissions associated with the proposal will just make emissions ‘permits’ available for other polluters.’[58]

8.41This view was supported by the findings of the Senate Select Committee on Climate Policy, which noted that:

The Productivity Commission, in their submission to the committee, stated ‘under a ‘pure’ ETS with a binding quota, the quantum of emissions is fixed. In this case, other abatement policies aimed at sectors covered by the ETS could change the composition of emissions reductions but not total emissions.’ In other words, additional actions can only change the composition of the emissions mix, or influence the cost of abatement (including easing costs for particular parts of the community), or achieve other policy goals, such as industry development.[59]