09/03/2018

Landmark Case Challenges Land Clearing Based On Climate Change Impact

The Guardian - 

Northern Territory government-approved land clearing likely to cause up to 3 megatonnes of C02-equivalent greenhouse gas emissions
The majority of Australia’s land-clearing has occurred in Queensland, but other states and territories look like they could be following in its footsteps.
A landmark court case in the Northern Territory is set to consider a challenge to a massive land-clearing approval based on its impacts on climate change.
The case, brought by the Environment Centre NT, is believed to be the first of its kind in Australia, using the consideration of greenhouse gas emissions from clearing as a lever to seek to have an approval overturned.
“I think it’s groundbreaking,” said Shar Molloy, director of ECNT.
In November 2017, the Northern Territory government approved the clearing of 20,432 hectares of land on the Maryfield station property – an area more than three times the size of Manhattan.
The clearing application was referred to the Northern Territory Environmental Protection Agency, which decides whether an action requires a full environmental assessment.
The NTEPA briefly considered the greenhouse gas emissions from the action concluding that they “are likely to make a considerable contribution to the NT’s annual greenhouse gas emissions”.
But the assessment went on to say the NTEPA did not consider that would be a “significant impact” on the environment. The reasoning they gave was that the NT government does not have a policy on the matter.
Despite the proposed clearing being the largest ever approved in the NT, and previous smaller applications forced to undergo environmental assessment, the NTEPA decided a full environmental assessment was not needed for the Maryfield clearing.
It went on to recommend to the pastoral lands board, which is the final decision maker, that the clearing be approved with a number of conditions related to biodiversity.
The pastoral lands board then approved the clearing, but ignored some of those conditions.
The ECNT, represented by the Environmental Defenders Office NT, is alleging that both the NTEPA and the pastoral lands board failed to properly consider the impacts of the clearing on greenhouse gas emissions.
It is widely thought to be the first Australian case to challenge the approval of a land clearing action on the basis of its impact on climate change.
Given the scale of the clearing, EDO NT principal lawyer Gillian Duggin said “it is of substantial public interest for the court to explore the errors we say exist in their decision making processes”.
“The decisions challenged by this case have drawn attention to the significant weaknesses in the current legal and policy frameworks for land clearing and climate change in the Northern Territory – this is a major concern for our client,” Duggin said.
Molloy said they decided to take up the case because they were shocked by the scale of the approval, and the fact it occurred without a full environmental assessment.
“This huge clearing permit granted should never have been granted. It will wipe out intact forest and woodland, threatens native wildlife, and will increase the NT’s greenhouse gas emissions,” said Molloy.
“It is the biggest clearing permit ever granted in the NT. For the NT EPA to find a full environmental assessment was not necessary is completely untenable.”
Glenn Walker from The Wilderness Society said the clearing is likely to cause up to about 3 megatonnes of CO2-equivalent greenhouse gas emissions. That figure is based on detailed scientific studies of clearing on nearby properties, and is difficult to get a firm estimate of.
“On a territory scale, the emissions from this one station, and the deforestation that could occur, is equal to 15 to 20% of the Northern Territory’s annual emissions,” said Walker. “That’s an enormous dent in their emissions reduction efforts.”
Duggin said that while it is concerning that the NT government has failed to put in place an emissions or climate change policy, that does not mean the EPA can avoid considering greenhouse gas emissions when assessing clearing proposals.
“In this case, however, it is the responsibility of the EPA to make its decisions according to the legislation that exists, notwithstanding the absence of a climate change policy. Our client will argue that hasn’t occurred in this instance”, said Duggin.
Bruce Lindsay, a lawyer at Environment Justice Australia in Melbourne said the case would be keenly watched by environmental lawyers around the country, and there could be scope for similar challenges elsewhere.
“I think under our amended Climate Change Act 2017 in Victoria there is scope for decision makers and policy makers to be required to take account of climate change, although in rather hedged language,” said Lindsay. “This has not yet been tested in a judicial proceeding.”
Land clearing in Australia has been a significant contributor to the country’s greenhouse gas emissions.
In 1990, before short-lived land-clearing controls came into law in Queensland, a quarter of Australia’s total greenhouse gas emissions were caused by deforestation. Emissions from land clearing dropped after 2010 but are rising sharply again.
While in recent decades, the majority of the country’s clearing has occurred in Queensland, other states and territories look like they could be following in Queensland’s footsteps.
In 2016 and 2017, the NT government approved about 45,500 hectares of land for clearing through the Pastoral Lands Board. That was an almost tenfold jump over the average of the previous 12 years of about 4,600 hectares, which was already an area two-thirds the size of Manhattan.

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