Dr Justine Bell-James is a Senior Lecturer at the TC Beirne School of Law, teaching undergraduate and postgraduate courses in the areas of environmental law and property law. Dr Bell-James undertook her postdoctoral research at the Global Change Institute at The University of Queensland, focussing on legal, policy and insurance responses to coastal hazards and sea-level rise. Dr Bell-James's research focuses on legal mechanisms for protection of the coast, drawing upon environmental, planning, property and tort law. In addition to her work on sea-level rise, Dr Bell-James is also particularly interested in novel legal mechanisms for protection of coastal ecosystems like mangroves and seagrass, protection of the Great Barrier Reef, and biodiversity offsets in the coastal context.
What legal or policy action is being taken globally, and in Australia to mitigate the effects of Climate Change?
Globally, things have really picked up since the Paris Conference and subsequent Agreement in 2015, and the work leading up to that. We now have a new legal mechanism aimed at restricting warming by 2 degrees by 2100, with an aspirational goal of 1.5 degrees. The big problem with this scheme is that there is some disconnect between the goal that we are working towards and the mechanism that’s being put in place to try and achieve that.
Currently, the scheme relies on all the individual countries that are subject to the Agreement putting forward what they are going to do domestically to reduce emissions – their ‘Nationally Determined Contribution’ (‘NDCs’). The expectation – or perhaps hope - is that when you add these up, you’ll get the end goal. The problem is that with what countries have promised at the moment, we will only restrict warming to about 2.7 degrees. Therefore, while the Paris Agreement has a great underlying objective, the mechanism currently in place to try and achieve this objective is flawed.
That said, the Paris Agreement also has something called the ratchet mechanism - countries have to make new NDCs every five years, and with each new promise they need to ‘ratchet up’ their obligation, or ‘increase ambition. The idea is that eventually we will get to the point where what countries are promising to do will meet the goal of the agreement. Unfortunately, we are not there yet.
In Australia it’s an even sadder story. After the Abbot government came into power and removed the carbon pricing mechanism, they introduced a substitute called the Emission Reductions Fund (‘ERF’). This is essentially a pool of money to buy emission reduction credits from companies. So, for example, a group might implement some sort of emissions reduction project (e.g. plant a forest which will sequester carbon), and by doing that they can generate credits which the government will buy using the fund monies.
The problem with that is that it’s costing the government money, rather than the polluters. The second problem is that the pool of money isn’t large enough to buy enough credits to meet our Paris Agreement commitment. The funds currently allocated to the ERF would only be capable of purchasing 14% of what Australia has promised to do, and 7.5% of what would be needed to keep warming within two degrees.
So, we have a flawed international mechanism to start with, and the domestic measures we have in Australia will not come even close to what we promised to do under that flawed mechanism.
In Queensland there have been several major challenges to coal mine developments on the basis of their contribution to climate change. How were these challenges framed?
To get approval to develop a mine in Queensland, there are hundreds of approvals you need, but there are two major state based ones: a mining lease and an environmental authority. These are administered under separate pieces of legislation.
There have been three major challenges in Queensland: the recent Carmichael Mine case (2015), the Hancock Coal case (2014), and the Wandoan Mine case (2012). These three cases involved challenges to the grant of both the mining lease and the environmental authority. Under the legislation, there are prescribed factors to be taken into account in determining whether to grant an approval. The big problem is that neither of those pieces of legislation specifically requires climate change to be considered. So, the litigants have effectively tried to utilise requirements to consider impacts on the environment generally to try and frame these climate change arguments.
What are some of the major difficulties associated with these challenges, and other climate change related litigation?
The first is the lack of specific legislation. The groups that have been mounting these challenges have had to frame their climate change arguments within the context of general environmental law. Simply arguing that a mine will contribute to climate change is insufficient. Instead, the argument is a multi-step process, that the mine development will cause climate change, and climate change will have an impact on the environment. It’s kind of like arguing a chain of causation – there are several steps that build upon another.
The other big challenge that these groups come up against is the issue of Scope 3 emissions. A mining project involves three types of emissions; Scope 1 emissions are the emissions that will happen directly from that mine (eg. when you dig into the coal seam a certain amount of CO2 will be released). Scope 2 emissions include things like the electricity the mine consumes and the emissions which derive from that. Scope 3 are the indirect emissions. If coal is sold to a third party in China or India or elsewhere and they burn it, the emissions produced are the Scope 3 emissions. These Scope 3 emissions are unequivocally the biggest problem in the context of climate change – they make up about 99% of the emissions from a mine. Digging the coal up out of the ground in Australia has a minimal impact on climate change; it’s sending that coal overseas and having it burnt that will make a huge contribution to global climate change.
The consequent difficulty is convincing a Court that Scope 3 emissions are relevant in granting a mining lease or environmental authority. Unfortunately, Courts have struggled to accept that something that happens in Queensland is going to lead to something happening overseas, which will, in turn, have an impact on the atmosphere globally that will then ‘come back’ to Qld and have some sort of impact here. This is complicated ‘chain of causation’ type problem.
Although these challenges were ultimately unsuccessful, is such litigation still valuable? What can be taken away from the findings in these challenges?
Yes, these challenges are still valuable. Considering the three challenges that have been heard in Queensland from a purely legal perspective, we’ve seen an incremental development in the law. Even though three challenges were ultimately unsuccessful on climate change grounds, with each the court has been prepared to go a little further in what is considered relevant.
These challenges are also valuable in that they bring public attention to these issues, and the other environmental impacts of these proposals. For example, in the Carmichael Mine case, through undertaking all preparations for the trial, the challenge group found that the mine site was the only habitat for a particular threatened species, the black throated finch. Prior to that case there was a belief that there were several major habitats for this finch, but it was discovered that the mine site is in fact the main habitat. In this way, the process of preparing for litigation can shed light on other issues as well.
Are there any negative effects that such litigation may have on law reform in the area?
There is a really clear example of the negative effects this litigation can have in Queensland. In 2007, there was a notorious case heard by the Land and Resources Tribunal (the predecessor to the Land Court). In that case, both parties agreed that climate change was real and caused by human actions. The issue was whether or not the particular party in that case would contribute to climate change. However, the judge in that case went away and did some research of their own and found some interesting material online casting doubt on climate change science. This information was included in the judgment. That case was swiftly appealed and the Court of Appeal overturned it. However, within a few hours of the Court of Appeal decision, the Queensland State Government announced that it would introduce special measure legislation to specifically deal with this issue and allow the project to proceed, because it couldn’t have legal technicalities holding up the project. So that was a case where unfortunately the litigation lead to a swift response by the legislature for that particular project.
It’s hard to identify any other overtly detrimental responses. There have been a couple of other legal changes that have been made in the last few years, which some commentators have attributed this to that litigation. I don’t think that is the case – there has been a lot of other things happening externally that have led to a tightening of climate change policy, and I don’t think you can necessarily marry the two together. But certainly yes, there have been impacts in the past.
What challenges does future litigation in this area face?
There is still that issue of trying to convince the court of the relevance of scope three emissions. Even though we making progress, you are going to need a pretty progressive court to accept the multi-step arguments advanced by the parties. At present, the biggest challenge is that judges are required to work within the confines of legislation that is not directed at climate change. How far can you stretch the legislation which really wasn’t designed for this purpose? In NSW there is a specialist Land and Environment Court that has judges that are trained in environmental law. They have proven more amenable to accepting these sorts of arguments. Unfortunately, these decisions are sometimes overturned by the NSW Court of Appeal.
From a practical perspective funding is also a problem. The clients for these sort of challenges are often community groups. In the Land Court parties often bear their own costs, so the financial ramifications of losing a case aren’t crippling. However, if you go on appeal there is the prospect of an adverse cost order being made against you. These are effectively David and Goliath battles and there are often practical reasons why some cases aren’t taken as far as they need to go: the client simply cannot afford to bear the costs.