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Article Excerpt
[In recent times the issue of climate change has catapulted to the forefront of scientific and policy agendas. Climate change threatens to have wide-ranging impacts on ecosystems and presents enormous challenges for conventional modes of socioeconomic governance. Against this backdrop, the last few years have seen the consolidation of a body of legal rules and principles organised around the central problems of mitigating and adapting to climate change. The new climate change law spans from international to local levels of governance, and encompasses the activities of a wide range of actors including governments, businesses and non-governmental environmental groups. This article surveys the scope of the new discipline of climate change law, providing a synopsis of its primary component areas. It also elaborates the main challenges climate change law is likely to face as its development proceeds apace, such as coping with internationalisation of the greenhouse problem, ensuring that avenues for widespread participation in climate change regulation exist, and integrating governance and regulatory frameworks across political and disciplinary boundaries. How climate change law responds to this last challenge, in particular, is likely to be determinative of its effectiveness and cohesiveness as a body of law for dealing with the broad predicted impacts of global warming.]
CONTENTS I Introduction II The Backdrop for the Emergence of Climate Change Law III The Scope of Climate Change Law A International Climate Change Regulation 1 The Global Climate Change Regime: The UNFCCC and the Kyoto Protocol 2 Climate Change Issues in Broader International Law B National Climate Change Regulation 1 Howard-Era Regulation: Voluntary Measures and the MRET 2 National Emissions Trading Scheme 3 Other National Climate Change Measures (a) Greenhouse and Energy Reporting (b) Environmental Impact Assessment and Approval Requirements (c) (No) Nuclear Power Policy C State-Based Climate Change Regulation 1 Carbon Trading and Sequestration 2 Renewable and Low-Emissions Energy Sources 3 Geosequestration 4 Energy Efficiency Requirements D Climate Change Action at the Local Level E Contribution of the Courts to Climate Change Law 1 Establishing a Causal Link 2 Indirect and Cumulative Impacts 3 Role of Environmental Principles (a) The Anvil Hill Case (b) The Taralga Case 4 A Lingering Issue: Scientific Proof of Climate Change 5 A Continuing Role for the Courts F Participation by the Non-Governmental Sector in Climate Change Law IV Key Challenges for Climate Change Law A The Challenge of Internationalisation B The Challenge of Participation C The Challenge of Integration D The Challenge of Regulatory Coordination V Conclusion
I INTRODUCTION
It is only a matter of decades since lawyers first began to hail the emergence of the new field of 'environmental law'. (1) Environmental law has since developed rapidly and now encompasses a range of sub-specialities, including international environmental law, biodiversity law and water law. (2) The latest branch of the metaphorical environmental legal tree to take shape is that of 'climate change law'. It has emerged against the backdrop of intensifying scientific, economic, social and political debates over the impacts of greenhouse gas ('GHG') emissions on the world's climate system. In response, there has been an accumulation of case law, legislative development and international regulation that makes up a distinctive body of legal principles and rules identified as 'climate change law'. As a leading environmental law barrister recently declared, climate change law 'is an organising principle whose time has arrived'. (3)
The birth of a new legal discipline is often a matter of interest only to sub-specialists in an already speeialised field. The ramifications of the emergence of climate change law, however, promise to be more far-reaching. For a start, the extent of the climate change problem is so broad that it has the potential to affect many sectors of social life and legal scholarship. To take but a few examples, climate change law is likely to be relevant to insurers considering the scope of risks to include in insurance contracts, international bodies concerned with threats to peace and security in the face of water shortages, and domestic energy retailers drawing on different sources of power generation to supply consumers.
In addition, climate change presents enormous challenges for socioeconomic governance systems. (The federal government's leading climate change adviser, Professor Ross Garnaut, has recently described climate change as 'a diabolical policy problem.') (4) Consequently, devising legal solutions to climate change is likely to involve profound changes to existing governance and regulatory frameworks, with reverberations felt in many other areas of law such as constitutional law, administrative law and property law.
Against this backdrop, this article seeks to provide an introduction to the new field of climate change law and to highlight the key issues that it will face as its development proceeds apace. While the topic of this article is the distinctive area of climate change law, it is argued that an important aspect of this new disciplinary field must be an awareness of, and efforts to ensure effective integration with, other parts of the environmental regulatory framework, as well as with the diverse disciplines (such as science, economics and social science) that underpin conceptions of the climate change challenge. Part II begins with a discussion of the factors that have led to the emergence (or, perhaps more accurately, re-emergence) of climate change law as a dynamic field of legal endeavour. This is followed in Part III by a synopsis of the major areas of legal development and principle that make up the overall body of existing climate change law. Finally, Part IV turns to consider the key issues facing the future development of climate change law, such as the effects of internationalisation of the greenhouse problem, the need to ensure avenues for widespread participation in climate change regulation, and the challenges of integrating and coordinating governance as well as regulatory frameworks across political and disciplinary boundaries.
II THE BACKDROP FOR THE EMERGENCE OF CLIMATE CHANGE LAW
As Tim Bonyhady and Peter Christoff note in their 2007 book Climate Law in Australia, the problem of climate change and legal responses to it have some history. (5) Indeed, the first scientific article discussing possible global warming as a result of carbon dioxide ('C[O.sub.2]') emissions was published in 1896, (6) though an international scientific and legal framework for dealing with climate change did not develop until a century later in the early 1990s. (7) In recent years, we have witnessed more intense scientific and sociopolitical debates over climate change, with a growing sense of urgency regarding the need to address the problem. In Australia, Bonyhady and Christoff comment that 2006 was the year that climate change matured into an issue of significant public (and inevitably political) concern. (8) This has led to a profusion of legal developments that together coalesce to form the new body of law dubbed 'climate change law'.
A number of factors have been important in bringing about a renewed focus on climate change issues and in paving the way for the emergence of climate change law. A major influence has been the consolidation of scientific data on climate change that has marginalised (albeit not entirely silenced) climate change sceptics. For instance, the Intergovernmental Panel on Climate Change ('IPCC')--whose work is underpinned by the contributions of hundreds of scientists worldwide--released its Climate Change 2007: Synthesis Report--Summary for Policymakers ('IPCC Fourth Assessment Report') in 2007 declaring warming of the Earth's climate system to be 'unequivocal'. (9) The IPCC also warned that global warming of more than two degrees Celsius above 1990-2000 levels threatens to have a variety of severe impacts, such as increases in human mortality, widespread loss of biodiversity, mass coral reef mortality, deglaciation, a greater frequency of extreme weather events, decreasing global agricultural productivity and food shortages. (10) In the face of such scientific consensus and concern, even the most reluctant governments have acknowledged the reality of climate change and the importance of taking actions to address the problem. In Australia, for example, the former federal government led by John Howard gave up its long-professed scepticism over climate change in 2007. The then Prime Minister announced a raft of measures in July 2007, including the introduction of an emissions trading scheme. (11) Other government institutions, such as the courts, have followed suit by recognising (with some exceptions) the reality and importance of climate change. (12)
Another factor instrumental in altering governmental attitudes to climate change has been the release of major economic analyses predicting the high cost over the long-term of a failure to address anthropogenic climate change (that is, climate change due to human activities). For instance, The Economics of Climate Change: The Stern Review ('Stern Review') released in 2006 had an enormous impact worldwide. (13) The Stern Review, commissioned by the British Treasury, stressed that the benefits of strong and early action to address climate change far outweigh the economic costs of not acting, and also warned of very serious impacts on economic growth and development if climate change went unmitigated. (14) In Australia, the findings of the Stern Review have recently been echoed in the various reports prepared by the federal government's climate change adviser, economist Ross Garnaut. (15) In The Garnaut Climate Change Review: Final Report ('Garnaut Review'), Garnaut points out that Australia has a larger interest in a strong mitigation strategy to address climate change than other developed countries as:
We are already a hot and dry country; small variations in climate are more damaging to us than to other developed countries. We live in a region of developing countries, which are in weaker positions to adapt to climate change than wealthy countries with robust political and economic institutions. The problems of our neighbours would inevitably become our problems. And the structure of our economy means that our terms of trade would be damaged more by the effects of climate change than would those of any other developed country ... (16)
For the general public, scientific and economic analyses of global warming may have been less salient in influencing opinion than media reporting of probable dire consequences for the climate, coupled with recent weather patterns that are suggestive (though by no means probative) of warming already occurring. Many point to the influence of Al Gore's 2006 film, An Inconvenient Truth, in bringing the looming 'climate crisis' to worldwide public attention. (17) In Australia, public concern was further excited by reports describing 2005 as the 'hottest year on record' (18) and by continuing conditions of severe drought in many areas of the country. (19) Such factors may well have been influential in the Australian Labor Party's success at the November 2007 election, campaigning on a platform of a new approach and urgency of policy development in the area of climate change. Certainly, it was significant that the first major act of the Rudd government after its election was to ratify the Kyoto Protocol to the United Nations Framework Convention on Climate Change ('Kyoto Protocol'), (20) the centrepiece of the international regulatory framework for addressing climate change. (21)
III THE SCOPE OF CLIMATE CHANGE LAW
Scientific, economic and sociopolitical developments regarding climate change have prepared fertile ground for the emergence of a new body of law designed to address the problem. As Bonyhady and Christoff point out, this novel legal field is not confined simply to international treaties and new legislation aimed directly at mitigating global warming. (22) Rather, it encompasses aspects of the existing environmental and broader legal framework, employing them in new ways to respond to aspects of the climate change problem. (23) While legal tools are not the only means used to address greenhouse pollution and its impacts, the law nonetheless stands to make a very important contribution to managing climate change. In particular, legislation (domestic and international) is needed to underpin the governance and regulatory frameworks put in place to control human behaviours that have effects on the climate system. The law also has a vital part to play in providing a forum for mediation between the many different interests and actors involved in the field of climate change policy. In this regard, legal mechanisms such as those facilitating participation, accountability, (judicial) review and dispute resolution can be employed to enhance the quality and social acceptance of climate change initiatives.
As for its sister field of environmental law, climate change law has a very broad scope, touching on areas often not considered 'environmental' in nature. (24) Given that the scale of climate change can be pitched globally (for example, ocean warming) or locally (for example, extinction of a rare species with climate-induced habitat changes), climate change law involves governance systems extending from the international level to the national and local levels. While maintaining a common focus on addressing the issue of climate change, the regulatory tools of climate change law are likewise drawn from a wide range of legal fields, including administrative law, property law, tort law, corporations law, human rights law and international law. The following sections within this Part of the article provide an overview of the main categories of climate change law that are now emerging. These are organised by reference to two criteria: (1) those of scale (for example, international, national or local); and (2) the most critical or prominent actors operating in the area (for example, governments, courts or non-governmental actors). (25) Although categorisation is employed to ease the task of comprehending climate change law, an important issue for the field remains how the various parts link together to form a cohesive whole (a challenge to which I return in Part IV of the article).
A International Climate Change Regulation
1 The Global Climate Change Regime: The UNFCCC and the Kyoto Protocol
The negotiation of a framework convention on climate change at the United Nations Conference on Environment and Development in 1992 may well be looked to as the birth of climate change law. The United Nations Framework Convention on Climate Change ('UNFCCC') is by no means an ambitious legal framework for addressing global warming as it contains no film commitments for countries to reduce GHG emissions. (26) Nonetheless, the UNFCCC sets out key guiding principles for international climate change regulation and establishes the institutional machinery necessary for the ongoing operation and adaptation of the climate change regime. (27) One of the most important of the principles elaborated by the UNFCCC is that parties should protect the climate system 'in accordance with their common but differentiated responsibilities and respective capabilities.' (28) Accordingly, developed country parties (listed in Annex I of the Convention) are to 'take the lead in combating climate change and the adverse effects thereof.' (29) This principle forms the basis for a delineation between the responsibilities of developed and developing (or Annex I and non-Annex I) countries regarding climate change, with the former expected to undertake the majority of action necessary to reduce GHG emissions to sustainable levels. While this division of responsibility remains a perennially controversial aspect of the international climate change regime, (30) it would appear to have widespread support as evidenced by the 192 ratifications that the UNFCCC has received.
The absence of more than 'soft targets and timetables with many loopholes' (31) in the UNFCCC quickly led to negotiations for a more stringent international agreement, eventually resulting in the conclusion of the Kyoto Protocol in 1997. (32) This treaty has an overall goal of reducing developed country parties' emissions of relevant GHGs (33) 'by at least 5 per cent below 1990 levels in the commitment period 2008 to 2012.' (34) No such obligation is placed on developing countries. (35) Developed country parties, however, accepted differentiated targets in order to meet this overall goal, with some countries, such as the members of the European Union, agreeing to 8 per cent reductions by 2012 relative to 1990 levels, whereas others such as Australia agreed to more generous targets. (36) In Australia's case, the designated 2012 target is 8 per cent above 1990 levels, which nonetheless represents a significant reduction from current levels of GHG emissions. (37) No targets for commitment periods beyond 2012 are specified by the Kyoto Protocol: these are instead the subject of ongoing international negotiations. The Bali Conference of the Parties in late 2007 saw discussions on possible post-2012 targets, with emissions cuts of the order of 25-40 per cent below 1990 levels by 2020 being considered for developed countries and some proposals to introduce targets for developing countries. So far, however, agreement has been limited to a commitment for ongoing international engagement intended to result in a new agreement by the end of 2009. (38)
A key aspect of international climate change law to emerge out of the Kyoto Protocol that will have ongoing significance for any post-2012 agreement was the endorsement of market mechanisms as a means of facilitating developed countries' reduction of emissions at lowest cost. (39) These mechanisms--known as 'joint implementation', the 'clean development mechanism' and 'emissions trading'--essentially allow developed countries to shift part of the burden of undertaking emissions reductions offshore where GHG abatement can be undertaken at lower cost. (40) For example, a country such as Japan with limited opportunities for reducing emissions at home might fund projects in country areas of Australia to plant forests that absorb C[O.sub.2] from the atmosphere, claiming the carbon savings achieved towards its own domestic target. (41) Alternatively, a company in Australia might invest in a hydroelectric power plant in a developing country such as Fiji in order to secure carbon credits that can be used to meet emission standards back at home. (42) These mechanisms of the Kyoto Protocol have facilitated the emergence of an international carbon trading market whereby developed countries will be able to buy and sell carbon credits generated from global emissions reduction activities in order to satisfy the targets established under the Kyoto Protocol. (43) These targets are given some teeth by the relatively stringent compliance procedures of the Kyoto Protocol that allow complaints of noncompliance to be brought before the Enforcement Branch of the Compliance Committee of the Kyoto Protocol. The Enforcement Branch is capable of applying sanctions, such as a suspension from eligibility to participate in international carbon trading. (44)
2 Climate Change Issues in Broader International Law
While the UNFCCC and the Kyoto Protocol make up the core of international climate change law, they are by no means the only global legal fora in which issues of climate change are addressed. Indeed, the refusal of the former United States administration of President George W Bush to ratify the Kyoto Protocol has encouraged the institution of other international mechanisms concerned with climate change. (45) In the Australasian region, an important mechanism is the Asia-Pacific Partnership on Clean Development and Climate. (46) This mechanism has been strongly criticised for its weak stance on emissions targets and its potential to undermine the Kyoto Protocol. (47) Nonetheless, it serves an important function in bringing together major emitters such as the US, India and China, and has led to substantial funding commitments--Australia has pledged $100 million for 2006-10--directed principally to devising technological solutions to climate change including the promotion of renewable energy. (48)
Beyond environmental fora, we might expect to see the emergence of climate change-related law in a range of international legal settings in the near future. For instance, climate change has been identified as a potential threat to international peace and security, (49) raising the prospect that the issue might one day be the subject of United Nations Security Council resolutions and action. (50) Likewise, climate change is emerging as an important issue to many international human rights bodies, with a particular focus on addressing the phenomenon of 'climate change refugees': peoples from low-lying island nations likely to be rendered homeless and stateless if sea levels continue to rise. (51) International law in the areas of trade and financial regulation will most probably also have many points of intersection with climate change law in the future. During the period when Australia stood outside the Kyoto Protocol as the only developed country besides the US to refuse to ratify the treaty, there were murmurs in Europe about resorting to trade measures to tax Australian products produced in a GHG-intensive manner. (52) In years to come, increased border taxes and other trade measures may be used by some countries as a means to induce others to move towards low-carbon economies. (53)
B National Climate Change Regulation
Australia's federal framework, and lack of a specific constitutional power with respect to the environment, makes perennial the question of which level of government should deal with an environmental issue such as climate change. (54) It is now well-established in Australian constitutional law that, pursuant to the external affairs power, (55) a treaty ratified by the federal government provides a sufficient basis for the enactment of federal law, provided this legislation is reasonably appropriate and adapted to implementing the terms of the treaty. (56) Following Australia's ratifications of the UNFCCC and Kyoto Protocol, the federal government is provided with a broad international palette from which to draw in enacting national implementing legislation. (57) Such legislation supplies the primary (albeit not the only) mechanism for the federal government to undertake the regulation of climate change at the national level.
1 Howard-Era Regulation: Voluntary Measures and the MRET
With Australia's ratification of the Kyoto Protocol in December 2007, the development of national climate change law has accelerated to a frenetic pace. This contrasts with the relatively low-key status of federal legal development in the climate change area over the decade following the conclusion of the Kyoto Protocol in 1997. While it would be incorrect to say that there was no climate change law established over that period, no mandatory emissions controls were introduced. This reflected the former Howard government's strongly held belief that
[t]aking precipitate or costly action to reduce emissions, if not placed within a sensible international and domestic framework, would erode Australian industry's ability to compete internationally and would impose serious and damaging costs on the Australian economy. (58)
Consequently, the principal climate change measures introduced between 1997 and 2007 were of a voluntary, 'no regrets' nature. (59) The centrepiece of this approach is what was formerly the federal Greenhouse Challenge Programme and what is currently the Greenhouse Challenge Plus Programme, which provides various incentives for companies to inventory their emissions, develop action plans for minimising emissions and report on their performance. (60) However, the voluntary nature of the Greenhouse Challenge Plus Programme is seen as a key limitation of its effectiveness, with assessments condemning it as 'essentially a business as usual approach that does not provide the strong incentives for Australian business to significantly reduce its greenhouse gas emissions.' (61)
The sole mandatory climate change-related measure introduced by the Howard government was the Mandatory Renewable Energy Target ('MRET'). Established by the Renewable Energy. (Electricity) Act 2000 (Cth), the MRET requires wholesale purchasers of electricity ('liable entities') to contribute proportionately towards the generation of an additional 9500 gigawatt hours ('GWh') of renewable energy per year by 2010. (62) Owners of renewable energy generation assets that are accredited under the legislation earn renewable energy certificates, (63) which may be sold to liable entities or third parties. (64) If a liable entity does not present enough certificates to cover its liability, a penalty of $40 per megawatt hour ('MWh') applies. (65) In effect, this is a tax designed to induce liable entities to increase their use of renewable electricity sources and hence decrease their reliance on greenhouse polluting coal-fired power. (66)
The MRET scheme has attracted criticism from environmental groups given its low renewable energy target. (67) Based on 1997 figures, the 9500 GWh annual requirement is equivalent to a mere two per cent increase in the proportion of total electricity produced via renewable methods. (68) Even then, assessments of the legislation have suggested that with rising energy consumption in Australia, the MRET will deliver only a 0.3-0.9 per cent increase in renewable energy use. (69) In 2003, a review of the legislation was undertaken that recommended a steady increase in the MRET between 2010 and 2020 towards a target of 20 000 GWh. (70) In response, the Howard government agreed to extend the MRET scheme until 2020 but without increasing the target beyond the existing two per cent. (71) By contrast, the new Rudd government has pledged to increase the share of renewable energy in Australia to 20 per cent by 2020, (72) which will involve lifting the MRET from 9500 GWh to 45 000 GWh in 2020 (augmenting the approximately 15 000 GWh of existing renewable capacity to reach a level of 60 000 GWh). (73) The Rudd government, via the Council of Australian Governments ('COAG') Working Group on Climate Change and Water, is currently canvassing options for the design of an expanded MRET scheme, (74) and has released exposure draft legislation in the form of the Renewable Energy (Electricity) Amendment Bill 2008 (Cth).
2 National Emissions Trading Scheme
A key issue for the operation of the revised MRET scheme will be its relationship with the other major plank of federal climate change law presently under development: the national emissions trading scheme. The Rudd government has stated its ambition for Australia to have such a scheme in place by 2010. (75) This will involve the introduction of a market-based mechanism that caps overall levels of GHG emissions for a given period, but allows emissions permits to be traded so that participants can achieve reductions at the lowest possible cost--that is, a cap-and-trade scheme. (76) The primary driver for adoption of an emissions trading scheme in Australia has been a desire for compatibility with similar mechanisms at the international level under the Kyoto Protocol, and in other regions such as the EU. While the endorsement of a market-based emissions trading scheme for reducing GHG emissions has not occurred without a detailed consideration of the advantages and drawbacks of such an approach, (77) the question in Australia has really become one of how an emissions trading scheme will work rather than whether it is necessary.
An important input into federal government policy in this regard has been the review undertaken by Garnaut. The Garnaut Review was published on 30 September 2008, recommending medium- to long-term policy options to address climate change. (78) It was preceded by several other reports and discussion papers containing recommendations on such matters as the design of an emissions trading scheme and targets for emissions reductions. (79) In the Garnaut Review, Garnaut urged that Australia 'express its willingness to reduce its own entitlements to emissions from 2000 levels by 25 per cent by 2020 and by 90 per cent by 2050', (80) although only in the context of the conclusion of an international agreement with an objective of holding GHG concentrations to 450 parts per million ('ppm') C[O.sub.2] equivalent. (81) An important part of facilitating an effective global agreement was said to be the development of a domestic mitigation strategy with an emissions trading scheme as its centrepiece. (82)
As regards the design of a national emissions trading scheme, Garnaut reiterated his key recommendations from earlier drafts of the final report for a cap-and-trade system with an initial cap of 108 per cent of 1990 levels to 2012 and subsequent caps of increasing stringency. (83) In addition, Garnaut argued for a broad coverage of sectors in the scheme, including the transport sector. (84) His recommendation was for permits to be regularly auctioned (rather than allocated...
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