Australia has more climate change litigation per capita than any other nation
and 2021 has been a breakout year for cases based on human rights concerns,
according to an NSW Law Society study.
The society, the professional body for more than 30,000 solicitors, notes in a
new briefing paper that Australia is second only to the United States for the
number of
climate change cases
since 1993. At 121 cases, its total is five times that of Canada.
“Significant shift”: NSW Law Society president Juliana Warner
When the statistics – taken from the Climate Change Laws of the World database
run by the UK-based Grantham Institute on October 30 – are adjusted for
population, Australia is ahead of New Zealand and the US.
The society noted Australia has 121 climate cases (4.7 per million), Britain 77
(1.15 per million), European Union 56 (0.12), Canada 25 (0.65 per million) and
New Zealand 25 (4.1). The latest figure for the US is 1343 cases (4.1 per
million).
Climate change cases are defined as those that “raise material issues of law or
fact relating to climate change mitigation, adaptation, or the science of
climate change ... before a range of administrative, judicial, and other
adjudicatory bodies”.
The paper cites comments by King & Wood Mallesons partner Daisy Mallett that
Australia is a “particularly fertile testing ground for public interest
litigation on climate change, given its sophisticated and independent legal
institutions, a government policy supporting heavy industry, and the severe
climate change impacts in the region”.
The first climate case was Greenpeace v Redbank Power in 1994, when the NSW Land
and Environment Court ruled a new power station in the Hunter Valley could
proceed, subject to several mitigation conditions.
It predicts greenwashing claims – against those that trumpet eco-friendly
credentials – “are likely to continue in coming years and focus on individual
directors as well as corporate entities”.
New ground was broken in 2021, when 25 landholders and conservationists
known as The Bimblebox Alliance cited human rights law as they challenged an
application by Clive Palmer’s Waratah Coal to develop a thermal coal mine in the
Galilee Basin.
Waratah objected but the Land Court of Queensland said it did have jurisdiction
because of the state’s Human Rights Act. There will be a hearing in February.
‘Rights turn’
The paper said the case was part of a “rights turn” in which litigants in
Australia, Europe, the Philippines, South Africa, Pakistan and the Netherlands
are arguing that climate change is a threat to human rights such as the right to
life, health and a healthy environment.
The paper noted a crucial hurdle for litigants - “there is no freestanding right
to a clean and healthy environment under core international human rights
instruments, although over 100 national constitutions do now include such a
right”.
NSW Law Society president Juliana Warner said climate change was “already having
a significant impact on the economy, businesses, investor groups and the
community”.
“Over the course of this year, there has been a really significant shift in the
community about climate change and the urgent action which must be taken.”
THE RACE IS ON to respond to accelerating climate change with rapid and deep
cuts to greenhouse gas emissions this decade, but the
latest federal government data
shows Australia’s pollution is only creeping down.
Analysis by the Climate Council shows that Australia should be cutting its
emissions 21 times faster than we are to play our part in avoiding
catastrophic climate change, and that
Year on year, emissions were down (by 2.1 percent), with COVID-19 lockdowns
and interstate travel restrictions a large reason for this.
States, territories and households solar installations are driving down
emissions in the electricity sector (by 4.5 percent since the previous year)
in spite of little or no support from the federal government.
Since this federal government came to power in 2013, emissions other than
land clearing have fallen by a paltry 2.4 percent – or one third of a
percent per year – with a sizable share of this due to the global pandemic.
Climate Council Senior Researcher Tim Baxter: “Today’s
quarterly emissions data reveals that our sluggish and inadequate national
response continues. We know from painful, recent experience throughout the
COVID-19 pandemic, that delaying a response or being slow to act carries
serious consequences. We can’t afford to go slow on this.”
“The time for leaning on the achievements of others is long since past. We
need a federal government willing to step up on emissions reductions and take
charge with real policy, not wish lists,” he said.
The current La Niña is driving storms, extreme rainfall and flooding in parts
of the country – a stark contrast to the Black Summer bushfires that scorched
Australia in 2019/2020 – but nonetheless amplified by accelerating climate
change.
“There is no hiding the fact that the federal government will make this
problem worse via its dangerous
National Gas Infrastructure Plan. Expanding and opening up new
massive fossil fuel basins will only see Australia’s emissions increase at a
time when the rest of the world is shifting away from coal, oil and gas,” said
Mr Baxter.
“Following the pathway that underpins the federal government’s new gas plan
will put us on track for a world that is a catastrophic 3.5 degrees hotter.
This is an unthinkable future,” he said.
The Climate Council recommends Australia aims for a 75 per cent cut in
greenhouse gas emissions below 2005 levels by 2030. This would equate to
emissions cuts occurring 21 times faster than what the federal government is
doing.
“Addressing the climate crisis is a race. Communities across Australia
recognise it’s a race because they’re dealing with worsening extreme weather,
like the Black Summer bushfires. Businesses recognise it’s a race because
there are economic consequences in acting slowly, but many opportunities to
cash in on if we do step up. Countries all over the world are racing towards
net zero, but Australia’s response remains woefully inadequate. That should be
of huge concern to every Australian,” said Mr Baxter.
All countries that recently signed up to the Glasgow Climate Pact but are yet
to increase the ambition of their 2030 targets – including Australia – are
required to do so by November at the latest.
With parts of the business community ready to move on emissions, the
opposition’s modest goal could be easily met – or surpassed
Anthony Albanese says the Labor party’s climate policy will
create jobs and cut power bills, while boosting renewable
energy.Photograph: Dean Lewins/AAP
Labor’s new climate policy, released on Friday afternoon at the very end of the parliamentary
year, is impossible to assess without holding it up against 12-plus
years of broken Australian climate politics – but let’s give it a
try.
Yes, Labor has lost a string of elections at which it promised to do
more than the Coalition on climate and was rewarded with lies
and misinformation. Attention will probably quickly turn to whether
the opposition’s plan for 2022 is electorally viable. Fair enough.
But we should start at first principles: is the policy – called
Powering Australia
– up to the task of addressing the climate crisis? And could it set up
Australia to thrive in a future that no longer relies on fossil fuels?
At first blush, the short answers are (1) no, not on this alone and
(2) possibly.
Anthony Albanese’s plan is aimed at hitting a 2030 emissions target
while expanding industries that could ultimately deliver net zero
emissions by 2050. Unlike the Coalition, it does not
pretend to map a path to hitting that goal mid-century.
The headline emissions goal – a 43% cut by 2030 compared with the 2005
levels – will be described by some as a stretch, and was quickly
attacked by Scott Morrison as bad news for coal regions and
manufacturing. But the plan tells a different story.
In reality, it’s a modest goal when measured against what would happen
anyway, while still being more ambitious than the Coalition’s
“technology will save us” approach. Which, of course, is the point.
It falls well short of what scientists have found Australia should be doing if
the world is to limit global heating to 2C above pre-industrial levels, let
alone the 1.5C goal backed by more than 190 countries in the recent
Glasgow climate pact.
Severalstudies
have suggested Australia should be making at least a 50% reduction this
decade, and almost certainly substantially more, to play its part in tackling
the crisis.
Albanese and his climate change spokesperson, Chris Bowen, emphasised their
plan was built on official government projections that the country will make
at least a 30% cut even without introducing any new policies.
Separateassessments
have found state government action – particularly in the biggest states, New
South Wales and Victoria – are likely to lift that to somewhere in the
mid-to-high 30s if delivered as promised.
It tells us that, even before we get into the details, Labor’s goal is more
than achievable, and should be seen as a floor to what’s possible.
Albanese’s central claim is that the policy will create jobs – it estimates
64,000 direct and 540,000 indirect – and cut power bills while boosting
renewable energy.
The central driver is a
previously announced
off-budget $20bn “re-wiring the nation corporation” charged with upgrading the
electricity grid. Bringing forward planned new transmission links is meant to
allow a faster influx of large-scale solar, wind and batteries in regional
renewable energy zones. It is also committing $300m to developing community
batteries and shared “solar banks” for households and businesses who can not
put panels on their roofs.
Anthony Albanese announces Labor's 2030 emissions target. 1min 46sec
The energy and climate firm RepuTex, which modelled Labor’s policy, estimates
it will lead to renewable energy providing 82% of electricity by 2030, up from
68% on the current trajectory. The rise in cheap clean energy is forecast to,
on average, cut power bills by $275 by 2025.
Implausibly, Labor’s plan claims the accelerated rollout of renewable energy
will not lead to the early closure of ageing coal-fired power plants, despite
experts
having
already forecast
that some could shut earlier than scheduled. The idea that coal power and its
jobs will continue when its electricity is no longer needed is remarkably hard
to shake in Canberra, if not elsewhere.
The biggest new element on Friday – or revamped old element, given it was part
of Labor’s abandoned 2019 policy – is that Albanese and Bowen plan to use the
Coalition’s safeguard mechanism to cut emissions at big industrial sites.
The safeguard mechanism was introduced under Tony Abbott with a promise it
would put a limit on industrial emissions. In practice, it has failed –
companies have consistently been allowed to increase their carbon pollution
without penalty, and industrial emissions are up 17% since 2005 and 7% since
the safeguard began in 2016. Both industry representatives and climate
activists believe it has
made the scheme a waste of time.
Greg Hunt, the scheme’s architect when environment minister, planned for
emissions limits under the safeguard to eventually tighten, but the Coalition
ultimately rejected forcing companies to take action. Labor is now promising
to do what Hunt always intended by working with business to cut industrial
greenhouse gases by 5m tonnes – about 1% of Australia’s total emissions – a
year from 2023.
Combined with direct funding from business from a new $15bn national
reconstruction fund, which would provide low-cost financing to industry to
embrace clean solutions, the modelling suggests this will cut emissions by up
to 48m tonnes a year by 2030.
Bowen said on Friday he expected about 50% of
the cuts through the safeguard to come through use of improved technology, the
rest from companies paying for carbon offsets.
Labor has some political cover here. It is not only using an existing
Coalition policy, but has adopted a model released by the Business Council of
Australia in October. The government was quick to attack it anyway, describing
it as a “sneaky new carbon tax”.
Albanese is promising much less in the short-term to cut emissions from
transport, which was a major area of growth in carbon pollution growth before
the Covid-19 lockdowns.
He has dropped Labor’s 2019 commitment of a vehicle
emissions standard requiring average tailpipe emissions to be cut over time.
It is further evidence that Morrison’s false claim before the last election
that the ALP planned to
“end the weekend”
by forcing people to drive EVs continues to have an impact.
Instead, Labor is focusing on tax breaks for low-emissions cars. Along
with the rollout of charging infrastructure, the modelling suggests this
will help lead to 89% of new car sales and 15% of all vehicles being EVs
by 2030.
These policies add up to a promise of a smaller cut in emissions by 2030
than Labor was promising under Bill Shorten less than three years ago,
when its target was a 45% reduction.
From one perspective, this is remarkable, given the global urgency for
action has only increased in the past two years. From another, Labor has
made a more ambitious emissions pledge than many expected, given the
internal concern about another News Corp-backed scare campaign.
Asked on Friday for his response to those who say his policy falls short
of what climate science demands, Albanese argued the new target was
roughly the same as Canada’s – another fossil fuel economy – and suggested
the ALP had acted responsibly by first designing its policies and then
paying for independent modelling to calculate what they would deliver.
Few would argue it is how you would design a climate policy if starting
from scratch.
What is routinely described as the most efficient way ahead – a
well-designed carbon price – remains off-the-table since the Coalition
repealed a functioning scheme in 2014. And there is no commitment to cut fossil fuel subsidies or curb the
government-funded expansion of the gas industry.
Perhaps the major thing in Labor’s favour if it wins next year’s election
is that significant parts of the business and investment community are now
ready to move in a way they haven’t been before.
People may be surprised
how quickly a 43% emissions reduction target could be met, or surpassed,
under a government more inclined to back that push.
