ozelaw: Australian environmental law

News, commentary, analysis and discussion of environmental law in Australia

Tuesday, December 12, 2006

A summer break for ozelaw

As you would have noticed if you read this blog, we haven't updated it for about 6 weeks.

Given my other priorities at the moment, I haven't been updating this blog regularly enough to make it useful to people interested in keeping abreast of environmental law issues in Australia.

I'll revisit it in the new year, but I'm struggling to write as much as I'd like on my main blog, Oikos. I'll continue to post occasional thoughts on environmental law there, though more from a policy than legal angle.

In the meantime, if you have any thoughts or comments or if you'd like to contribute anything to ozelaw, you can email me at ozelaw @ yahoo . com . au. I'll still be checking that fairly regularly.


David Jeffery

Wednesday, November 01, 2006

Suing the government for climate change

I've been meaning to write some detailed posts about the prospects of civil litigation claims related to climate change, in Australia and overseas. I've got quite a bit of stuff to trawl through (the statement of claim in the US case where the State of California is suing car manufacturers for their contribution to GHG emissions, for example).

But ABC news online today brings this story:
A researcher at the University of Adelaide believes a legal case could be made against the Australian Government and businesses for contributing to climate change.

Legal researcher Dr Joseph Smith has been analysing scientific evidence for the effects of global warming and the legal basis for court action... Dr Smith believes scientific evidence linking climate change to pollution is now sound enough to make a civil case against businesses and governments.

"I think there's an arguable case in so far as Australia is a per capita major polluting nation," he said. "It is not a signatory to the Kyoto protocol, so there's a prima facie case there that could addressed in the courts."

He points to a case in the US state of California where six car manufacturers face compensation claims for contributing to global warming.

Dr Smith says progress on legal action based on climate change mirrors actions against tobacco companies. "This field is one which is moving much faster than the 1950s where tobacco and the asbestos and mesothelioma cases first came," he said.

I'll try and find out more on this story - I'm very curious about what the cause of action might be - but I'm pretty dubious about it. Some initial thoughts:
  • How does being a high per capita emitter give rise to a legal cause of action?
  • Australia is a signatory to the Kyoto Protocol, it hasn't ratified it. There's a difference. In any case, I can't see how either failing to sign or ratify would give rise to any legal action.
  • The fact that a case has been instituted against car comapnies in the US doesn't mean it has decent prospects of success, and certainly doesn't mean that some similar kind of action would have prospects of success in Australia.
  • Suing car manufacturers for creating cars which we use and which then emit greenhouse gases which contribute to climate change is very different to suing tobacco companies for concealing evidence that smoking increased the risk of illness and death. I'm not aware that tobacco companies have been sued for producing cigarettes - they've been sued for lying about their effects or for deliberately taking measures to try to get kids hooked on them.

I'm not against climate change litigation altogether. Countries like Australia and the US which are being irresponsible in their failure to take reasonable measures to address the risk of climate change are going to find that they will increasingly face people taking political and legal measures to force action.

But climate change litigation is an incredibly inefficient way to deal with the problem of global warming (although perhaps relatively efficient as a publicity-generating tool, which I think is its main aim - and a legitimate aim) and I think there are very great doubts as to whether any of this kind of litigation could ever be successful.


After a bit of googling, it seems this story was to promote Smith's book on climate change litigation, which looks pretty interesting I must say. You can download the table of contents and introduction here (pdf). The Sydney Morning Herald has a more restrained and informative article than the ABC one.

Tuesday, October 24, 2006

Changes to Federal environmental law: Proposed amendments to the EPBC Act

You've probably heard by now about proposed changes to the Commonwealth's Environment Protection and Biodiversity Conservation Act 1999. The Environment and Heritage Amendments Legislation Bill was tabled on 12 October and proposes the most significanct changes in the EPBC Act's history.

Blake Dawson Waldron has a decent summary of the changes. I'll try to post some analysis and more details when I get the chance!

Tuesday, September 05, 2006

Greenhouse update

Law firm Blake Dawson Waldron produces a good regular update on climate change issues from a legal and regulatory perspective and the August edition (pdf) has just come out. It includes a good summary of the main features of the proposed Australian national emissions trading scheme.


Tuesday, August 22, 2006

Changes to the Victorian Environment Protection Act

Law firm Allens Arthur Robinson summarises changes proposed in the Environment Protection (Amendment) Bill recently introduced to Victorian Parliament.

Among the proposed changes are:

Thursday, August 17, 2006

Green law firms

If you're interested in environmental law, you might also be interested in going some way to being a 'green' law firm.

If you haven't seen it before, Lawyers for Forests' Forest-friendly Eco Kit for law firms (pdf) is worth checking out. It provides thorough advice on how you can make your firm's energy and resource use more sustainable. It might save you money too.

Monday, August 07, 2006

More on the Federal Court windfarm challenge

The Australian over the weekend reported that Federal Environment Minister Ian Campbell has settled a legal challenge to his decision under the Environment Protection and Biodiversity Conservation Act to refuse consent for the Bald Hills windfarm, agreeing to orders setting aside his original decision:

Facing legal defeat, Senator Campbell agreed to an offer - foreshadowed last week in The Weekend Australian - from Wind Power Pty Ltd to resubmit the proposal in exchange for dropping its legal challenge. Costs awarded to the company will be footed by taxpayers.

The Federal Court issued consent orders setting aside Senator Campbell's decision to veto the project in Bald Hills, south Gippsland. Under the court order, Senator Campbell will reconsider his decision "according to law", opening the way for the project, which is strongly opposed by many local residents, to win approval.

The report speculates that the Minister may have been advised that he was likely to lose the challenge because of a failure to provide procedural fairness to the company before making the decision:

It is believed Wind Power had been told by government lawyers that it would win the legal challenge because the minister had denied the company natural justice by not showing it the Biosis report before stopping the wind farm.
It will be interesting to see how the decision is remade. I've suggested before that granting consent to the windfarm with conditions that could reduce negative impacts and fund recovery projects for the orange-bellied parrot could allow the windfarm to go ahead and still improve conservation outcomes for the endangered parrot.

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