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2017 AJEL 1 (2017)

handle is hein.journals/ajel4 and id is 1 raw text is: 

AJEL   2017


                          THROUGH THE LANDFILL GAS METHOD?

                             TIM BAXTER   AND  GEORGE   GILLIGAN*

      Since the repeal ofAustralia's carbon pricing mechanism in 2014, the Emissions Reduction Fund
      ('ERF') has formed the 'centrepiece' of Commonwealth action on climate change. Criticised in
      some quarters, the ERF nonetheless has the potential to be a powerful weapon to remove the low
      hanging fruit of Australia's greenhouse gas emissions. However, its structure has become an
      example  of slippage between a strong enabling Act and far weaker delegated legislation
      undermining the intent of the original legislation. This article uncovers structural deficiencies in
      the methodology for landfill gas capture and destruction such as stretching the term 'additional'
      to include its opposite, and raises other, more general issues with the ERF including the
      insufficiently accountable independent audit and review process. These deficiencies have obvious
      impacts upon the transparency and legitimacy offunding these projects under the ERF. Important
      questions are raised about whether substantial public revenue should be spent in this area. Given
      these methods are included in Australia's emissions reduction calculations, a spectre of doubt is
      cast over whether Australia is actually achieving its domestic and international emissions
      reduction goals.

                                    I       INTRODUCTION

The  present Australian government   was  the first, and to date the only, national government in
the world   to oversee  the repeal  of a carbon   price.' In the lead-up  to the  repeal, senior
ministers described  the original legislation as a 'great big new  tax on  Australian families'2
that  'attempt[ed] to  cut  emissions  by  cutting  economic   growth'  . When the Coalition
government   led  by Prime  Minister  Tony   Abbott  came  to power   following  the September
2013   federal election, these  earlier statements  had  effectively  slammed   the  door  on  a
conventional  Emissions   Trading  Scheme   ('ETS')  and also  a carbon tax, the most  common
broad-scale   greenhouse gas ('GHG') control strategies. As a replacement, the

* Tim  Baxter LLM(JD)  (Monash), MPhil candidate, Melbourne Law School; Associate Australian-German
Climate and Energy College; George Gilligan MA (LaTrobe), MPhil, PhD  (Cambridge); Senior Research
Fellow, Melbourne Law School, The University of Melbourne; Visiting Fellow, Faculty of Law, University of
New  South Wales. The authors would like to acknowledge Elizabeth Sheargold and Anita Talberg for many
helpful discussions, as well as Damien Lockie, who assisted with a technical point of much consternation. We
would also like to thank our anonymous reviewers whose suggestions were gladly received and acted upon. For
the purpose of this article, the law is that which is in force as at 1 July 2017. All calculations are correct as at 15
Sept 2017. The research performed for this article was part of a project funded by Australian Research Council
Discovery Grant DP1200101485 entitled Carbon Offsets: Regulation for Success.
1 Rob Taylor and Rhiannon Hoyle, 'Australia Becomes First Developed Nation to Repeal Carbon Tax' Wall
Street Journal (online), 17 July 2014 <http://www.wsj.com/articles/australia-repeals-carbon-tax-1405560964>.
2 Commonwealth,  Parliamentary Debates, House of Representatives, 2 February 2010, 4 (Tony Abbott)
3 Greg Hunt,  '$2.55 Billion Confirmed for Emissions Reduction Fund' (Media release, Department of
Environment, 13 May 2014)<https://www.environment.gov.au/minister/hunt/2014/mr20140513.html>.

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