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A legislative greenhouse 'trigger'

By Jeff Smith - posted Friday, 8 December 2006


This question was at the heart of the Senate Committee hearings held in Canberra recently, attended by the Environmental Defender’s Office and various conservation groups.

If you ask the man or woman on the street, the answer, I suspect, would be a resounding “yes”. If you ask the federal government, the answer would be “not as such”.

How can we say this? Well, the federal government has been fine-tuning its environmental legislation over the past few weeks. And it’s a carefully calibrated fine-tune, running to over 400 pages of amendments. The result - the Environment and Heritage Legislation Amendment Bill (No. 1) 2006 - is currently before the Senate.

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But, again, the proposed changes contain no reference to climate change. This continues the silence since the passage of these new, sweeping federal environmental laws in mid-2000. A discussion paper on climate change followed, and then a technical design document, but no action ensued.

Specifically, the debate revolves around the need for a “greenhouse trigger”. As it stands, the Environment Protection and Biodiversity Protection Act is turned on if a project is likely to have a significant impact on certain “matters of national environmental significance”. If triggered, the project must then be assessed and approved by the Federal Minister for the Environment.

There are seven such matters of national significance, including threatened species, world heritage, wetlands, heritage, migratory species, the marine environment and nuclear actions (including uranium mining).

Important matters all, but hardly in the same league as climate change.

Does it matter that we don’t have a greenhouse trigger?

There are at least three reasons to suggest that it does.

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First, the current approach may not capture projects whose principal or significant impact will be greenhouse gas emissions. Any examples? Try the Kurnell desalination plant - famously described by the former New South Wales Premier, the Honourable Bob Carr, as “bottled electricity” - where the federal minister declined to call the matter in, as there were no significant impacts on any of the seven matters of national significance.

Second, the current laws treat climate change as a side issue and require legal acuity. Thanks to the success of EDO Queensland and barristers Stephen Keim, SC and Chris McGrath in the recent Nathan Dam case, some greenhouse intensive projects may be caught indirectly by the federal laws. In that case it was held that the adverse impacts associated with building a dam could include indirect downstream impacts on the Great Barrier Reef, a world heritage area.

One can well imagine constructing similar arguments about the indirect impacts of greenhouse gas intensive projects on, for example, wetlands or the Great Barrier Reef itself.

But should federal laws - passed to protect Australia’s environment - require such legal gymnastics? Or should the law actually facilitate the thorough consideration of such issues? It is well to remember that a greenhouse trigger would not dictate outcomes, but rather would simply put such matters before the minister for proper assessment.

Third, the addition of a greenhouse trigger would be a clear signal of the government’s intent to tackle climate change, at a time when leadership is required. We need to fundamentally redesign our laws - environmental and otherwise - to properly deal with climate change. A greenhouse trigger is not all we need, but it would be a start.

The federal government appears to have been caught on the back foot on climate change in recent months. A bevy of announcements will mean little if the key legal and institutional structures of the federal government remain unchanged and unresponsive to the challenge of climate change.

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About the Author

Jeff Smith is the Director of the Environmental Defenderís Office (NSW). He is a Solicitor of the Supreme Court of NSW with a Masters of Law from Sydney University (majoring in Environmental Law and Policy). He has taught and researched in environmental law and policy, criminal law and litigation at the University of NSW and Macquarie University. Jeff has written extensively in the fields of environmental law, criminal law and litigation.

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