Environmental lawyers work in a rapidly evolving field, which increasingly puts them at the centre of vigorous policy debates.
As world leaders meet in Paris to negotiate carbon emission reduction targets, Australia is having its own stoush over environmental law.
In October, the largest coal mine in Australia got the nod from the government for the second time.
Only two months earlier, environmental litigants celebrated stalling the development through Federal Court action.
The new approval comes with 36 environmental conditions, including the requirement for $1 million of research funding to improve conservation of threatened species.
The brief victory of the Mackay Conservation Group, represented by EDO NSW, added fuel to the fire in the debate around environmental regulation.
In August Attorney-General George Brandis blasted the "lawfare" tactics of "vigilante litigants" that placed the $16 billion Carmichael mine in Queensland on hold.
He blamed the delay on the broad standing provisions in section 487 (2) of the Environment Protection and Biodiversity Conservation Act 1999, which allow groups to bring actions on behalf of communities.
Senator Brandis called for these provisions to be removed but that proposal has since been put on ice, following hostilities in the senate.
Caught in the crossfire
This attack on community-led environmental litigation was the latest in a series of attempts to roll back environmental regulation and send the message that Australia is open for business.
NSW and Queensland state governments both have longterm plans to reduce red tape, including rolling back some environmental regulations.
Environmental community legal centres have seen significant funding cuts, with the recent $25.5 million restoration of federal funds to legal aid excluding EDO.
Sean Ryan, the principal solicitor at EDO Qld, says communities will continue to engage in environmental litigation and push for new legislation as the "requirement for action becomes more urgent".
The major issues "spilling over into the courts", according to Mr Ryan, are land use conflicts between fossil fuel companies and farmers and Indigenous communities.
Environmental law is an instrument through which the community can hold governments and companies to minimum legal standards, but Mr Ryan says he does not view the work of EDO as political.
"Applying the laws of parliament to ensure we all can enjoy a safe and healthy environment is not a question of right and left, it is a question of right and wrong," he says.
Martijn Wilder, the head of Baker & McKenzie's Global Environmental Markets practice, says environmental law is now operating a context of conflict, where agriculture and mining businesses and communities are often competing for the same resources.
Meredith Gibbs, a partner in HWL Ebsworth's Melbourne planning, environment and government group, says one of the challenges of working in this field is the amount of legislative change.
"But, equally, it is important for the law to be responsive to the contemporary situation and new challenges as they arise," she explains.
Environmental law is an area that is relatively young and constantly growing, she continues. Entirely new practice areas and job opportunities have emerged as previously unconsidered environmental issues rear their heads.
But, while corporate and government lawyers will be keeping a close eye on local and global battles, the impact of these on the day-to-day practice of law may not manifest for some time.
Falling behind
It is fair to say that Australia's climate change policies are not making much of an impression on the world stage, particularly following closer cooperation between China and the US, which culminated in policy announcements in September.
"Australia is falling to the back of the pack in environmental laws, which haven't undergone major reforms since the 1990s," says Mr Ryan.
"Most countries in the world have recognised the right to a healthy environment in their constitution or international agreements. Australia has not caught up with this trend."
Both Mr Wilder and Ms Gibbs say the United Nations climate change conference in Paris would inform but not dictate Australian policy.
"The outcome of Paris will have implications, but it's still up to the Australian government how they choose to respond to whatever happens at that level," says Ms Gibbs.
Mr Wilder adds: "The regulatory framework we have for dealing with emissions reduction in Australia is still under development. I don't think Paris per se will change that."
Businesses have faced an uncertain regulatory future with the carbon tax being scraped last year and replaced with the coalition's Direct Action Plan. Prime Minister Malcolm Turnbull has not departed from Tony Abbott's modest climate change goals, but whether he moves on these remains to be seen.
Mr Wilder said regulatory uncertainty has presented a real challenge for his corporate clients: "There is no doubt that it has been quite difficult in Australia," he says.
"[It is] particularly challenging for business when that law carries a financial cost or burden and they are trying to price that into an investment or a new development.
"The last two years have been a quite hostile environment [with] a lot of regulatory change. Hopefully now that will settle down."
Safeguarding the future
Mr Wilder says businesses were looking outside the law for innovative financial tools to support their environmental goals.
"[In my practice we focus on] helping clients protect the environment using market-based instruments or using green bonds or using finance to get those environmental outcomes," he says.
"It builds on environmental law but it is slightly more innovative."
Mr Wilder says there are high expectations from customers and investors that corporations manage their environmental impact appropriately and proactively.
"It is particularly the case for companies that have large impacts particularly on climate change or on water, for example," he adds.
"There is a lot of pressure from investors that they get it right. Investors expect that if they are going to cause damage to the environment that they repair that. That repair obligation may go well beyond the statutory obligation."
Significant divestment in companies with negative environmental impacts has caused a stir in business communities.
No fewer than 14 large financial institutions around the globe have pulled funding or refused to invest in the Carmichael coal mine.
Mr Wilder says companies that have experienced divestment campaigns – or even just the threat of divestment – have rapidly modified their behaviour.
Ms Gibbs says companies are now focused on climate change adaptation as well as mitigation.
Corporates are increasingly turning to environmental lawyers to reduce their legal exposure, which could pose a risk if the impacts of climate change – such as flooding – are not factored into development plans.
The government is similarly focused on reforming environmental regulations in line with future challenges, according to Ms Gibbs.
For instance, the Victorian government has released a discussion paper on e-waste, which deals with the predicted 60 per cent increase in electronics waste in landfills over the next decade as the population increases.
"It is a huge issue," Ms Gibbs explains. "The problem is that when [TVs and computers and white goods] go to landfill the highly toxic chemicals in them leach out into the soil and then potentially into the ground water."
She says the community plays an important role in bringing environmental concerns to the government's attention.
For instance, in August this year the Victorian Environmental Protection Authority (EPA) announced an independent review into all its landfill asbestos licences following an investigation into community concerns over the Bulla landfill site.
"I think that is a good example where you've got community concern, the EPA responding to it and so you get a review in that particular area."
Ms Gibbs said the often-untold story of environmental law is the careful planning work by government and companies.
"If you hear about a rogue person or company that is blatantly ignoring the law, well, that is the exception rather than the rule," she said.
"I work with government bodies, public utilities, [and] major companies, right through to developers, and generally people are trying to comply with the law and we assist them to do that."
No comments:
Post a Comment