HSC Legal Studies Day 2018 - lha.uow.edu.auweb/@lha/documents/... · HSC Legal Studies Day 2018...

21
HSC Legal Studies Day 2018 Option 2: Global Environment Protection Sarah Wright Lecturer, School of Law

Transcript of HSC Legal Studies Day 2018 - lha.uow.edu.auweb/@lha/documents/... · HSC Legal Studies Day 2018...

HSC Legal Studies Day 2018Option 2: Global Environment Protection

Sarah Wright

Lecturer, School of Law

Global Environment Protection

• The greatest environmental challenge facing our times from a global perspective is…

Climate Change

• Why?

▪ Urgent effective action needed

▪ There is ‘no Planet B’

▪ Collective response required

2

‘Spaceship Earth’!

3

‘Earthrise’ (Photo credit/source: Bill Anders/ NASA)

- Kenneth Boulding

Ecologically Sustainable Development

• What is Ecologically Sustainable Development (ESD)?

▪ ‘ecologically sustainable development requires the effective integration of social, economic and environmental considerations in decision-making processes’ (Protection of the Environment Administration Act 1991 (NSW) (POEA Act) s 6(2))

• Number of relevant principles eg:▪ Precautionary principle

▪ Intergenerational equity

▪ Intragenerational equity

▪ ‘conservation of biological diversity and ecological integrity’

▪ ‘improved valuation, pricing and incentive mechanisms’

(see eg POEA Act s 6(2))

4

Environment

SocialEconomics

ESD

International Instruments Addressing

Climate Change

• 1992: United Nations Framework Convention on Climate Change (UNFCCC)

▪ Kyoto protocol

▪ 2015: The Paris Agreement

5

United Nations Framework Convention

on Climate Change (UNFCCC)

Objectives (Article 2):“achieve … stabilization of greenhouse gas concentrations in the atmosphere at a level that would prevent dangerous anthropogenic interference with the climate system. Such a level should be achieved within a time frame sufficient to allow ecosystems to adapt naturally to climate change, to ensure that food production is not threatened and to enable economic development to proceed in a sustainable manner”

6

UNFCCC

Principles (Article 3):

• Protect climate system – for present and future generations▪ Common but differentiated responsibilities

▪ Developed nations to take the lead

• Consideration to specific needs and circumstances of developing countries

• Implement the precautionary principle

• Promote sustainable development

7

UNFCCC

• Commitments (Article 4) eg:▪ National emission inventories (Art 4.1(a))

▪ Implement programs to mitigate climate change (Art 4.1(b))

▪ ‘Promote sustainable management, and promote and cooperate in the conservation and enhancement … of sinks and reservoirs of all greenhouse gases … including biomass, forests and oceans …’ (Art 4.1(d))

▪ Prepare for adaptation (Art 4.1(e))

▪ Climate change considerations to be taken into account in policies and actions (Art 4.1(f))

▪ Developed countries to adopt national policies and measures to mitigate climate change – limit greenhouse gas (GHG) emissions and protect/enhance GHG sinks and reservoirs (Art 4.2(a))

▪ Carry out and share climate change research (Art 4.1(g)/Art 5)

▪ Education, training and public awareness programs (Art 4.1(i)/Art 6)

• No obligations in terms of specific targets for GHG reduction

8

Kyoto Protocol

• Adopted 1997, entered into force 16 February 2005

▪ Australia ratified 12 December 2007 (Rudd Govt)

• Binding targets for developed counties (Annex B):

9

Commitment period Overall GHG emissions reduction target

Australian target

1st: 2008-2012 5% below 1990 levels 108% of 1990 levels

2nd: 2013-2020 (not yet in force)

18% below 1990 levels 5% below 2000 levels, option to increase to 15-25%

10

Source: Climate Change Authority, Comparing Countries’ Emission Targets: A Practical Guide (March 2015) http://www.climatechangeauthority.gov.au/node/331

Kyoto Protocol

• Implement policies and measures to reduce GHGs (Art 2)

• Flexibility in meeting targets:

▪ Invest in other countries projects

• But most reductions must come from domestic action

• Issues/criticisms?

▪ Developing countries have no binding targets

▪ eg China (biggest emitter), India

▪ US (2nd biggest emitter) not ratified

▪ Some countries withdrew

▪ Other countries would not recommit to 2nd period

11

Paris Agreement

• December 2015

• 195 signatories▪ 176 have ratified

• Entered into force 4 Nov 2016▪ Australia ratified Nov 2016

▪ ‘The Paris Agreement … for the first time … brings all nations into a common cause to undertake ambitious efforts to combat climate change and adapt to its effects … As such, it charts a new course in the global climate effort’

(United Nations, ‘Summary of the Paris Agreement’ http://bigpicture.unfccc.int/#content-the-paris-agreemen)

12

Paris Agreement

• Aim (Art 2): ‘strengthen the global response to the threat of climate change’, including:

▪ Hold temp increase ‘to well below 2°C’

▪ But try to limit to 1.5°C

• GHGs to peak ASAP and then be rapidly reduced (Art 4)

• All countries (both developed and developing) pledged their Intended Nationally Determined Contributions (INDC)

▪ ‘ambitious efforts’ expected (Art 3)

→Implement domestic measures to achieve them (Art 4)

→5 yearly ‘global stocktake’ and pledges to be reviewed ieincreased (Art 4)

▪ Australia’s INDC:

▪ 26-28% below 2005 levels by 2030 (=19-22% below 2000)

13

Paris Agreement

Issues/concerns?

• Based on current pledges → temperature rise of 2.7°C

• Success dependent on strong and collective domestic action

• Is climate change a priority for current/changing short term govts?

14

Source: The Climate Group/Twitter

Commonwealth Instruments

• Rudd/Gillard Govt:▪ Ratified Kyoto Protocol (2007)▪ Passed Clean Energy Legislation Package

▪ ‘carbon tax’/emissions trading

• Abbott Govt▪ Abolished carbon tax – 1 July 2014▪ Replaced with Direct Action Plan (current mechanism)

• $2.55 billion Emissions Reduction Fund• Cth govt buys credits generated from voluntary emissions

reduction projects• Safeguard mechanism

• Approach to energy is important▪ Renewable Energy Target (RET)▪ Proposed National Energy Guarantee

15

Role of the States

In a federal system, what role should the states play?

▪ Australia: • Winding back of some state programs on passage of

carbon tax, which was then repealed• What now for the states/territories?

▪ US:• President Trump indicated withdrawal from Paris

Agreement→ US States and cities pledged to meet the Paris Agreement

16

Are Legal Instruments Enough?

Do We Need Litigation to Force Change?

Recent Australian climate litigation example:• Proposed Carmichael Coal Mine in Queensland

• Approval granted under Environment Protection and Biodiversity Conservation Act 1999 (Cth)

▪ Challenged in Australian Conservation Foundation Inc v Minister for the Environment and Energy [2017] FCAFC 134

▪ Concern over likely impacts on Great Barrier Reef

▪ GHG emissions – transport and combustion of coal from mine

17

• Judicial review proceedings –must establish a legal error in the decision

• The challenge failed

Are Legal Instruments Enough?

Do We Need Litigation to Force Change?

International case examples:

• Urgenda Foundation v The State of The Netherlands▪ Successful tort action▪ Govt to reduce GHG emissions to 25% of 1990 levels

by 2020▪ Appealed: heard May 2018

• Juliana v United States of America▪ Applicants – 21 American youths▪ ‘Their complaint asserts that, through the government's

affirmative actions that cause climate change, it has violated the youngest generation’s constitutional rights to life, liberty, and property, as well as failed to protect essential public trust resources.’(Our Children’s Trust https://www.ourchildrenstrust.org/us/federal-lawsuit/)

18

Photo Credit/Source: Robin Loznak/ Climate Liability News

Are Legal Instruments Enough?

Do We Need Litigation to Force Change?

International case example:• New York City v BP plc

▪ Suit against BP and four other companies

▪ Sued in tort – nuisance and trespass

▪ Seeking damages for climate change impacts

19

Is the Law Enough?

What is the Role of ….

20

Companies

Financial institutions

Insurers

Governments

Communities

Climate Change

All hands on deck?

IndividualsMedia

Education

Investors

NGOs

ResearchTechnology

Questions?