Green gets mean

03 March 2012 By Lawyers Weekly

LAST WEEK Lawyers Weekly hosted its first “emerging issues forum” looking at the impending Carbon Pollution Reduction Scheme. The audience heard from six expert panellists who shared…

LAST WEEK Lawyers Weekly hosted its first “emerging issues forum” looking at the impending Carbon Pollution Reduction Scheme. The audience heard from six expert panellists who shared their very diverse views on the suitability of the scheme, and it will be covered in detail in next week’s edition.

In terms of its impact on the law, you’d be hard-pressed to think of an issue emerging more rapidly than climate change. It’s been the subject of a plethora of new legislation — both state and federal — in relation to energy reporting, energy efficiency opportunities, renewable energy targets and now emissions trading.

It’s also quickly making inroads into planning law decisions, and of particular note is the recent decision by the Victorian Civil and Administrative Tribunal’s deputy president, Helen Gibson. Overruling a council decision to grant consent to a residential development, Gibson held that the potential impacts of climate change — despite the uncertainty surrounding their magnitude — have to be taken into account, using a precautionary approach, in development decisions.


Contrary to what some first envisaged, climate change isn’t just the domain of environmental lawyers. Its influence is being rapidly felt across the board, in practice areas ranging from property, construction, competition, government, derivatives — and now, apparently, criminal law.

Last week in the UK, six Greenpeace activists convinced a jury that protecting the environment from damaging carbon emissions was a “lawful excuse” for causing £30,000 ($66,000) of damage to a coal-fired power plant.

Last year the activists had tried to shut down the Kingsnorth power station — the UK’s fifth-largest polluter — as a protest against UK Prime Minister Gordon Brown’s plans to build a new plant on the site.

They scaled the plant’s 200-metre chimney in an attempt to paint the words “Gordon, bin it”, but only got as far as “Gordon” before they were threatened with a High Court injunction and arrested.

The activists were charged with causing criminal damage, but they were acquitted by the Maidstone Crown Court jury on the basis that preventing property damage of a greater value (caused by the plant’s emissions) was a “lawful excuse” for damaging the plant.

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Greenpeace bought out the big guns for their defence —James Hansen, a NASA director who advises Al Gore and is widely considered the world’s top climate scientist, was flown in especially as a witness. They also had Zac Goldsmith, the environmental adviser to UK opposition leader, and an Inuit leader from Greenland on their side.

Greenpeace gave evidence that the Kingsnorth power plant, owned by energy company E.ON, emits 20,000 of Co2 emissions every day - equivalent to the total combined emissions of the world’s 30 least polluting countries. Hansen also calculated that the plant’s emissions would be responsible, proportionately, for the extinction of 400 species.

The activists were legally justified for damaging the plant, the jury decided, because they were preventing more serious property damage resulting from the its emissions.

How persuasive this would be in Australia remains to be seen, but the decision gives an indication of just how much influence climate change concerns now wield in the law, and it has, no doubt, left energy companies feeling pretty uneasy.

Green gets mean
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