Recent Developments in Australia Climate Change Litigation: Forward Momentum from Down Under
![handle is hein.journals/sdlp8 and id is 132 raw text is: RECENT DEVELOPMENTS IN AUSTRALIAN CLIMATE
CHANGE LITIGATION: FORWARD MOMENTUM FROM DOWN UNDER
by Tracy Bach &Justin Brown*
INTRODUCTION
tudies indicate that Australia has one of the worst envi-
ronmental records of any developed country.1 Particu-
larly striking is its role in the climate change debate:
despite being the current leading emitter of greenhouse gases in
the world on a per capita basis, Australia originally joined the
United States in refusing to sign the Kyoto Protocol.2 These dis-
parate climate change positions have a common denominator:
coal.3 Australia is the world's fourth largest coal producer and
largest coal exporter, sending out approximately sixty percent of
its annual production, which accounts for almost thirty percent
of global coal exports.4 Not only is the country's trade economy
reliant on coal,5 so too is its electricity production: over seventy-
five percent of Australia's electricity comes from burning coal.6
Fuels for Electricity
Black coal
54.8% A
Oil
1.3% Other
H100 Hydra
EMIL .8%
Gas
114.2%
Brown coal
21.9%
FIGURE 17
As Dr. Mark Diesendorf, Director of the Sustainability
Centre at Sydney's University of Technology, pointed out, [t]
he greenhouse pollution produced by these [coal fired] power
stations is equivalent to the annual emissions from about forty
million cars, four times Australia's actual car fleet.8
But today, the business as usual mentality and relative
environmental indifference is quickly becoming a thing of the
past. Ubiquitous climate change headlines both popularize the
issue and arguably educate the public.9 The Intergovernmen-
tal Panel on Climate Change's (IPCC) Fourth Assessment
Report unequivocally documents the scientific consensus on cli-
mate change's anthropogenic sources.l° Closer to home, record
drought in Australia and its toll on the agricultural sector-par-
ticularly cotton exports-has raised awareness and concern over
global warming.tI Such a massive turn in public perception has
led to a political reevaluation of Australia's climate change posi-
tion. On November 24, 2007, Labor Party candidate Kevin Rudd
was elected Prime Minister in the world's first climate change
election. 12 Promising to make the issue a priority, Rudd immedi-
ately signed the Kyoto Protocol and played an active role in the
United Nations' climate summit in Bali. 13
The growing scientific consensus about climate change and
Australians' fears about irreversible ecological impacts have led
to a search for more proactive domestic regulation via environ-
mental impact assessments (EJAs). During the past five years,
Australian conservation foundations have spearheaded a grass-
roots movement to use the courts as a tool for climate change
reform. In so doing, these environmental advocates have pushed
the judiciary to interpret and apply the Environment Protection
and Biodiversity Conservation Act of 1999 (EPBC Act) to cli-
mate change. Through a series of cases,14 courts decided that
EIAs required under the EPBC Act and relevant state environ-
mental planning statutes15 must consider climate change and
its intergenerational effects. Reaching this conclusion required
case-by-case analysis of the EPBC Act's terms in light of its
overall purpose. It also required a measure of courage, for, by
taking a general environmental protection statute and applying
it progressively to the home-grown causes of global climate
change, Australian judges have stepped into a breach that legis-
lators and executive branch agencies have typically avoided. 16
This Article seeks to explain how Australian jurisprudence
came to take this position on climate change. In Part I, we briefly
describe the EPBC Act, its key principles and provisions, and
how these ideas made their way into national legislation. In
Part II, we explore the recent climate change decisions of vari-
ous federal and state trial and appellate courts. We specifically
analyze how key EPBC Act provisions have been interpreted
to require recognition of global and intergenerational account-
ability for Australia's coal industry. Finally, in our conclusion
we discuss how the EPBC Act and Australian courts contribute
to the broader narrative of climate change litigation currently
occurring around the world. 17
PART I:
ENVIRONMENT PROTECTION AND BIODIVERSITY
CONSERVATION ACT OF 1999
The EPBC Act established a schema of EIA requirements
and guidelines. Although a federal statute, individual Australian
states and territories look to its principles and structure when
* Tracy Bach is a professor of law at Vermont Law School (VLS). Justin Brown
is aJ.D. candidate, May 2009, at VLS. Professor Bach and Justin Brown have con-
ducted this research for the Climate Legacy Initiative (CLI), a scholarly collab-
orative of VLS and the University of Iowa College of Law. For more information
about the CLI, visit http://www.vermontlaw.edu/cli/index.cfm?doc-id=1403.
SUSTAINABLE DEVELOPMENT LAW & POLICY](ViewImageLocal?handle=hein.journals/sdlp8&div=30&collection=&method=preview&ext=.png&size=3)
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Recent Developments in Australia Climate Change Litigation: Forward Momentum from Down Under
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