Maddocks - Michael Winram
| Samantha Murphy
Bushfires
2020 was a year of extreme weather events, with many people bringing in the
New Year under a blanket of smoke caused by the devastating bushfires
burning across the East Coast.
In
New South Wales
alone, the 2019-20 summer bushfire season impacted over 5 million hectares
of land, including a third of the State’s national parks and State forests.
The Royal Commission into National Natural Disaster
Arrangements, set up in response to the bushfires, heard significant
evidence on the impacts of climate change, including the projected increase
in climate-driven natural disasters. The Commission’s
report
recommended:
-
the implementation of a National Disaster Risk Information Services
Capability with integrated climate and disaster risk scenarios
-
increased data sharing on climate risks between the Commonwealth and State
and Territory Governments
-
the production of national climate projections to inform future natural
disaster risk assessment.
COVID-19 pandemic
The economic cost of the COVID-19 fallout has provided an uncomfortably real
comparison of the projected impacts of climate change in a report published
by Deloitte Access Economics titled
A New Choice Australia’s Climate for Growth.
The report finds that by 2055, unchecked climate change will
result in annual impacts on Australia’s economy equal to the impact of
coronavirus on the 2020 economy. By 2070, this will have increased further,
equating to $3.4 trillion and over 880,000 jobs being wiped from Australia’s
economy in a single year.
Internationally, the 26
th session of the Conference of the
Parties to the United Nations Framework Convention on Climate Change was
postponed due to the COVID-19 pandemic.
However, emissions
reductions in early 2020 resulting from coronavirus lockdowns were
short-lived, with the World Meteorological Organisation’s
United in Science 2020
report finding that by early June, daily emissions from the burning of
fossil fuels had returned to around 5% below 2019 levels. It also reports a
continued rise in the concentration of greenhouse gases in the atmosphere
and that the last five years is shaping up to the be the warmest five-year
period on record.
Back home, the Nation’s strong response to the COVID-19 pandemic set a new
tone for the governance of other major risks, including climate change.
In becoming the last of Australia’s States and Territories to
adopt a target of net zero emissions by 2050, the
Northern Territory Minister for Climate Change
highlighted how COVID-19 had demonstrated the importance of working together
as a community, and with experts, to keep our communities safe and that the
response to climate change should be no different.
Lastly, COVID-19 and the bushfires also featured in the Explanatory
Memorandum to the
Climate Change (National Framework for Adaption and Mitigation) Bill
2020
(
Climate Change Bill)
, introduced by Independent
MP, Zali Steggall. If passed, the Act would:
-
set a Commonwealth target for net zero emissions by 2050, to be reached
through five-yearly emissions budgets and emissions reduction plans
-
establish an independent Climate Change Commission to provide advice, and
monitor and report on progress under the Act
-
require five-yearly national adaptation plans in response to climate
change risks identified by the Commission.
Renewable energy
Renewable technologies featured in the economic recovery from COVID-19, with
the Commonwealth Government announcing its Technology Investment Roadmap and
First Low Emissions Technology Statement, to target government investments into new, low emissions technologies.
The environmental assessments of some renewable energy projects
were also fast-tracked through the NSW Government’s
Planning System Acceleration Program, including the Snowy 2.0 pumped hydro expansion and the Western Sydney
Green Gas Trial, which will trial the use of electrolysis to convert excess
solar and wind power into hydrogen gas for storage.
These developments come amid good news from the Australian Energy Market
Operator (
AEMO) on the security of electricity supply in
the National Electricity Market, while transitioning to a greater reliance
on renewable energy.
In its
Renewable Integration Study
– Stage 1 Report, the AEMO concluded that in the next five years, the
proportion of wind and solar energy operating in the National Electricity
Market at any one time could increase to up to 50-60% of total generation,
while maintaining system security. This percentage increases to up to 75% if
the recommendations in the study are adopted.
The NSW’s Government’s
Electricity Infrastructure Roadmap
and
Electricity Infrastructure Investment Act 2020
build further on this transition, with a focus on:
- investing in pumped hydro energy storage
-
establishing new network infrastructure to support key ‘Renewable Energy
Zones’
-
monitoring forecasted electricity supply in NSW against long-term energy
security targets.
Climate change litigation
The courts continued to provide an avenue for the public, and particularly
young people, to challenge the scope of existing legal structures and raise
awareness of the impacts of climate change
.
►Bushfire Survivors for Climate Action Inc v Environment Protection
Authority
The Bushfire Survivors for Climate Action commenced civil enforcement
proceedings in the NSW Land and Environment Court alleging that the NSW
Environment Protection Authority (
EPA) failed to perform
its statutory duty to develop guidelines and policies to ensure the
protection of the environment.
In an interim
judgment
handed down in November, the Court granted leave to the Applicant to adduce
expert evidence on greenhouse gas emissions, climate change impacts and the
adequacy of current EPA policies to address these.
According to
the Applicant, this marks the first time an Australian court has ruled on
whether climate evidence can be heard in a case alleging the Government's
failure to perform their statutory duty.
►Sharma & Ors v Minister for the Environment
A group of school students, representing children from around Australia and
globally, commenced a class action in the Federal Court seeking an
injunction preventing the Commonwealth Government from approving an
extension to the Vickery coal mine under the
Environment Protection and Biodiversity Conservation Act 1999 (Cth).
The students argue that the Federal Minister for the
Environment has a duty to exercise her powers under the Act with reasonable
care so as to not cause harm to children and approving a project that will
materially contribute to climate change is in breach of this duty.
The matter is set down for hearing in March 2021.
►Waratah Coal Pty Ltd v Youth Verdict Ltd & Ors
An objection to applications made by Waratah Coal for a mining lease and
environmental authority for the proposed Galilee Coal Project is before the
Queensland Land Court, based on the grounds that the grant of the
applications would be incompatible with the objectors’ human rights, in
violation of the
Human Rights Act 2019 (Qld).
In a
judgment handed
down in September, Waratah Coal failed to have the objection struck out for
lack of jurisdiction, with the Court finding that it was required to comply
with the relevant provision of the Act when carrying out its functions in
assessing and providing a recommendation on the applications to the decision
maker.
►Kathleen O’Donnell v Commonwealth of Australia & Ors
A 23-year-old law student, a holder of and investor in Exchange-traded
Australian Government Bonds, has brought a class action against the
Commonwealth Government in the Federal Court alleging that the Commonwealth
engaged in misleading and deceptive conduct and breached its public duties
in failing to disclose how climate change would impact on the value of those
Bonds.
►Mark McVeigh v Retail Employees Superannuation Pty Ltd
REST superannuation fund settled Federal Court proceedings commenced by one
of its members alleging that REST failed to adequately manage, and disclose
to its members, climate change risk in its investments.
In
announcing
the settlement, REST acknowledged that
“Climate change is a material, direct and current financial risk to the
superannuation fund across many risk categories”
and agreed
“to continue to develop its management processes for dealing with the
financial risks of climate change on behalf of its members”, including by reporting in line with the recommendations set by the Task
Force on Climate-related Financial Disclosures.
The year ahead
The continuation of current government policies into 2021 will likely see a
continued investment in renewable energies, while looking ahead in the
medium term to mitigate the impacts of extreme weather events already being
experienced in Australia.
Climate change litigation in Australia
will also continue to see interesting developments around the peripheral
areas of existing laws and the extent to which these can be used to impact
on the regulation of greenhouse gas emissions.
As the world emerges from COVID-19, public discourse may shift back to
climate change, with a renewed focus on mitigating future economic
disasters.
However, these aspirations are likely to be
constrained by current economic realities, with many industries still
struggling to get back on their feet.
The Climate Change Bill
provides a timely opportunity to establish a framework for policy
development to plan for emissions reductions and climate change adaptation,
without any immediate cost to the economy.
While it is currently
unknown whether the Bill will garner the necessary support in Parliament,
2020 has been a year of surprises, and has taught us that, when it comes to
keeping our communities safe, all options are on the table.
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