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Legislative reach to cover climate change examined

Legislative reach to cover climate change examined

Debate has been ignited over whether climate change measures should be included in proposed reforms to Australia's central piece of environmental legislation.An interim report into the…

Debate has been ignited over whether climate change measures should be included in proposed reforms to Australia's central piece of environmental legislation.

An interim report into the Environment Protection and Biodiversity Conservation Act 1999 (EPBC Act) was released last week.

Among other things, the report examines whether climate change should be mitigated via a "greenhouse trigger" or through impact assessments and biodiversity protection measures.

The trigger would operate by setting a threshold for emissions released over a certain period or over the life cycle of a project. Those projects that produced emissions above the threshold would need to undergo assessment and approval under the EPBC Act. The report examined whether through the assessment, emissions would be avoided or reduced by mandating best practice technology or offsets.

The NSW Young Lawyers Environmental Law Committee suggested Australia's international obligations demand action on climate change.

"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 [is needed]," the submission said.

The Conservation Council (ACT Region) also said that the lack of a trigger was a shortcoming, or a 'glaring omission' in the EPBC legislation.

Dr Chris McGrath, a Brisbane barrister specialising in environmental law agreed. "[An] anomalous situation exists, whereby the EPBC Act aims to protect matters of NES [national environmental significance] 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," he said.

However, a number of industry groups were opposed to the insertion of the trigger, with suggestions from organisations such as the Australian Petroleum Production and Exploration Association that it would duplicate other carbon reduction methods inefficiently.

BP Australia added it was unclear why additional legislative frameworks were required.

"With the introduction of the [CPRS], it is not clear why additional measures to address climate change are required in the [EPBC] 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," its submission said.

Woodside Energy also insisted that planned CPRS legislation is already enough.

"[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," the submission contended.

The interim report noted that a trigger would be inconsistent with the reliance on a price for carbon offsets but said if there was a delay in effective establishment of the CPRS then a stronger case would exist for introduction in the interim period.

The CPRS has yet to be successfully passed, but Paul Curnow, a partner in Baker & McKenzie's global climate change practice said businesses still have a lot to get ready for, despite the uncertainty as to when it will be implemented.

He added the National Greenhouse and Energy Reporting Scheme, that will underpin the CPRS in the future, has been in existence since 1 July 2008.

"We're coming up to the end of the first year of reporting and companies have until the end of August to register for the previous year and then their reports have to be in by the end of October, so this is driving a lot of the initial work for companies to get ready for CRPS because obviously at its most fundamental level you need to understand what your emissions are in order to understand your exposure in terms of how many permits you're going to need," he told Lawyers Weekly.

"So I think there is certainly a lot of work companies need to do to get ready for that and I think the ongoing delay in passing legislation probably makes it just that little bit harder for people to judge what's the bests way to do that."

Meanwhile, the review is expected to be completed in October when findings will be presented to Federal Environment Minister Peter Garret.

- Sarah Sharples

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