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CLIMATE CHANGEChapter Eight

Independent Review of the ENvIRONMENT PROTECTION AND BIODIvERSITy CONSERvATION ACT 1999 132

Chapter 8: Climate Change


Key points ■ Climate change is likely to have major impacts on biodiversity and, as such, it should be considered as

part of this review.

■ The Australian Government is implementing a strategy for tackling climate change in Australia. This strategy is built on three pillars: reducing Australia’s carbon pollution; adapting to unavoidable climate change; and helping to shape a global solution.1

■ This chapter considers the potential for the EPBC Act to address the first two pillars of the Australian Government strategy – mitigation of climate change via a ‘greenhouse trigger’, and adaptation to climate change through changing impact assessment and biodiversity protection measures.

■ The relevance of a ‘greenhouse trigger’ depends on the implementation of the Australian Government’s proposed Carbon Pollution Reduction Scheme (CPRS), and whether a trigger would be complementary to the CPRS.

Climate change adaptation and mitigation8.1 In responding to climate change there are two potential policy approaches:

■ The first is climate change mitigation, which attempts to reduce the emission of greenhouse gases2 into the atmosphere and subsequently reduce anthropogenic climate change. Possible mitigation measures include traditional command and control responses such as a ‘greenhouse gas trigger’, and economic instruments, such as a capandtrade scheme or a carbon tax.

■ The second policy approach is climate change adaptation. Adaptation has been described as ‘the principal way to deal with the unavoidable impacts of climate change. It is a mechanism to manage risks, adjust economic activity to reduce vulnerability and to improve business certainty’.3 Adaptation for the purpose of biodiversity protection would involve responses that would allow for risk management and help maintain the diversity and perseverance of species.

8.2 Submissions to this review considered that the EPBC Act may be a vehicle for both mitigation of, and adaptation to, climate change. This chapter deals with these approaches separately.

Incorporating climate change in the Act’s objects8.3 A number of submissions indicated that the profile of climate change and its treatment under the Act would

be improved if climate change was referenced in the objects of the Act.4 The Southern Councils Group submitted that given ‘the seriousness of global warming, consideration should be given to listing greenhouse gas emissions as a necessary consideration either separately or in the context of ESD’.5

8.4 It was suggested this would improve outcomes for mitigation and adaptation. The concept of changing the objects of the Act is discussed further in Chapter 2 of this report.

1 Australian Government, Carbon Pollution Reduction Scheme: Australia’s Low Pollution Future, White Paper, vol 1, (executive summary), p.xv. Available at Department of Climate Change Website (2008), http://www.climatechange.gov.au/whitepaper/index.html at 10 April 2009.

2 This chapter uses the term greenhouse gas to include: carbon dioxide, methane, nitrous oxide, sulphur hexafluoride, hydrofluorocarbons and perfluorocarbons.

3 Council of Australian Governments, National Climate Change Adaptation Framework (2007) http://www.coag.gov.au/coag_meeting_outcomes/2007-04-13/docs/national_climate_change_adaption_framework.pdf at 4 June 2009.

4 e.g. Submission 008: Climate Action Network Australia; and Submission 002: Climate Action Coogee.5 Submission 159: Southern Councils Group, p.3.

133 Chapter Eight CLIMATE CHANGE


Climate change mitigation

Current provisions of the Act8.5 When making a controlled action decision, decision-makers under the EPBC Act are not required

specifically to consider greenhouse gas emissions. This principle was confirmed in the Your Water Your Say case, where it was found that:

To establish the ground that a decision-maker has failed to take a relevant consideration into account … it must be shown that he or she was bound by law to have regard to the particular consideration … The question of greenhouse gas emissions was not such a matter.6

8.6 This confirms the previous case Wildlife Preservation Society of Queensland Proserpine/Whitsunday Branch Inc v Minister for the Environment& Heritage,7 where an application for judicial review was brought pursuant to the Administrative Decisions (Judicial Review) Act 1977 challenging a decision deeming two coal mines as not controlled actions. It was argued that there was a causal link between the mining and the burning of coal, and protected matters under the EPBC Act, and that this amounted to a significant impact on these matters. The judge in this case, Dowsett J, dismissed the claims, and concluded that he was:

far from satisfied that the burning of coal at some unidentified place in the world, the production of greenhouse gases from such combustion, its contribution towards global warming and the impact of global warming upon a protected matter, can be so described.8

Key points raised in public submissions

rationale for mitigation under the ePBc

8.7 Submissions were conscious that ‘when the Act was passed climate change was not perceived as the threat it now is.’9 Environment groups noted that climate change will have severe impacts on biodiversity.10

8.8 It was suggested that Australia’s international obligations demand action on climate change.11 The NSW young Lawyers contended that ‘any genuine and progressive commitment to the Kyoto Protocol means direct implementation of statutory triggers, which can effectively catch and address projects posing serious threat to carbon reductions’.12

8.9 The Australian Network of Environmental Defender’s Offices (ANEDO) suggested that Australia’s greenhouse obligations are less prescriptive than was suggested by the NSW young Lawyers and rather ‘require the Commonwealth to take domestic action to mitigate our emissions’.13

8.10 Submissions also noted that a greenhouse gas trigger was previously proposed by the Australian Labor Party and was part of the 2007 ALP election platform.14

8.11 While the need to ‘do something’ about climate change because it is the ‘single greatest threat to our environment’15 was expressed forcefully in submissions, there was less discussion about why a greenhouse gas trigger was a better option than other mitigation mechanisms. The urgency of climate change mitigation was stressed by environment groups. Greenpeace commented that:

Climate change poses a significant threat to the global and Australian environment. There is increasing evidence from the natural world that climate change is happening faster than predicted by the 4th Assessment Report of the Intergovernmental Panel on Climate Change.16

8.12 Environment Tasmania, commenting on the need for urgent action, stated that the focus should be on 6 Your Water Your Say Inc v Minister for the Environment, Heritage and the Arts [2008] FCA 670, para [22] (per Heerey J).7 Wildlife Preservation Society of Queensland Proserpine/Whitsunday Branch Inc v Minister for the Environment& Heritage [2006] FCA 736.8 Wildlife Preservation Society of Queensland Proserpine/Whitsunday Branch Inc v Minister for the Environment& Heritage [2006] FCA 736 para.72.9 Submission 116: Mackay Conservation Group, p.1; see also Submission 151: Southern Rivers Catchment Management Authority.10 See e.g. Submission 020: Environment Tasmania.11 Submission 074: New South Wales young Lawyers Environmental Law Committee; and Submission 086: Greenpeace.12 Submission 074: New South Wales young Lawyers Environmental Law Committee, p.4.13 Submission 189: Australian Network of Environmental Defender’s Offices, p.13.14 See e.g. Submission 008: Climate Action Network Australia.15 Submission 152: North Queensland Conservation Council, p.1.16 Submission 086: Greenpeace, p.2.



mitigation rather than adaptation:

The abatement of emissions, rather than post-emissions amelioration is of prime importance given the need to de-carbonise economies in the next few decades in order to avoid catastrophic and runaway climate change.17

8.13 Submissions noted that the Act does not allow for consideration of climate change, or that climate change is not considered in the implementation of the Act,18 and that this arises from the difficulty in causally linking greenhouse emissions and a significant impact on a protected matter.19 In a case study on a referral of an open cut mine coal mine at Anvil Hill, Greenpeace noted that ‘most greenhouse intensive projects are not referred’ under the EPBC Act.20 The Queensland Conservation Council noted further that ‘the Minister has no grounds to require offsets or abatement measures in approval conditions’.21 It should be noted here that while this is generally the case, it may not be so for projects where the ‘environment’ is the matter protected.

8.14 The view was put forward that not having a greenhouse gas trigger was a shortcoming, or a ‘glaring omission’ in the legislation.22 Dr Chris McGrath suggested that an:

anomalous situation exists, whereby the EPBC Act aims to protect matters of NES such as World Heritage properties, but does not effectively regulate the greatest threat to those matters—climate change. This is like having a comprehensive criminal law that does not address illegal drugs.23

8.15 The logic behind this assumption, that greenhouse gas mitigation is a natural function of environmental protection and biodiversity conservation legislation, is based on a purposive analysis of the Act, whereby the functions of the Act should flow from its objects. In this light, Environment Tasmania claimed that ‘the ignorance of the Act [of climate change] severely devalues the Act’s intentions in achieving sound environmental outcomes.’24 Another view is that the suitability of including a greenhouse gas trigger should be judged on the structure of the Act, that is, whether a command and control regulatory regime based around assessment and approval of individual actions is the best delivery mechanism for greenhouse abatement.

greenhouse gas trigger – mechanism and design

8.16 The most commonly proposed greenhouse mitigation mechanism in public submissions was a greenhouse gas trigger. The basic design of a trigger involves the insertion of greenhouse gas emissions as a new matter of national environmental significance (NES) under the Act. The trigger would operate by setting a threshold of emissions released over a certain period – or over the life cycle of the project;25 projects which produce above that threshold will need to undergo assessment and approval under the Act. It is proposed that through the assessment, emissions would be avoided or reduced by mandating bestpractice technology, or offset.

8.17 Environment groups also suggested that a greenhouse gas trigger would ‘support the transition to a cleaner economy based on renewable energy and green collar jobs’.26 The Ourimbah Precinct Committee suggested that the benefit of a greenhouse trigger would be that emissions from particular industries ‘should be made explicit and be defended by those who would profit from the developments’.27

8.18 Proposed thresholds for a trigger varied, as did the specifics of proposals. Dr Chris McGrath’s proposal trigger, which received support in a number of subsequent submissions, set a limit of between 25,000-100,000 tonnes of carbon dioxide equivalent.28

8.19 An alternative proposal put forward by Climate Action Network Australia would prohibit the construction

17 Submission 020: Environment Tasmania, p.4.18 This distinction is made in Submission 017: Dr Chris McGrath, p.5.19 This is explored in a detailed discussion of the case Wildlife Preservation Society of Queensland Proserpine/Whitsunday Branch Inc v Minister for the

Environment& Heritage [2006] FCA 736, in Submission 190: Friends of the Earth (Australia).20 Submission 086: Greenpeace, p.2.21 Submission 152: North Queensland Conservation Council, p.1.22 Submission 055: Conservation Council (ACT Region), p.3.23 Submission 017: Dr Chris McGrath, p.5.24 Submission 020: Environment Tasmania, p.3.25 As was proposed in Submission 181: WWF.26 Submission 118: Moreland Energy Foundation, p.1.27 Submission 147: Ourimbah Precinct Committee, p.4.28 Submission 017: Dr Chris McGrath.



or expansion of coal fired power plants; or construction or expansion of coal mines; or a change in land use of land clearance resulting in emissions greater than 125,000 tonnes of carbon dioxide equivalent per year; or logging in mature forests.29 It was suggested that the prohibition would operate similarly to the current EPBC Act controls on uranium mining. Greenpeace supported these prohibitions on coal mines and power stations, and also proposed a requirement for assessment of synthetic fuel projects.30

8.20 If a greenhouse trigger were inserted into the Act, a number of consequential amendments would be required. Dr Chris McGrath supports insertion of specific criteria into the Act guiding the assessment of carbon intensive projects which would ensure ‘best practice environmental management’.31 Greenpeace also provided criteria for assessing the acceptability of greenhouse gas emission intensive projects, where all less intensive alternatives must be investigated, all mitigation or avoidance options pursued and any remaining emissions permanently offset.32 The Conservation Council (ACT Region) suggested stronger provisions, which would create a cap for the total emissions an action could produce.33 Climate Action Network Australia proposed that definitions relating to climate change and associated issues, and greenhouse gas emissions-specific penalty provisions also be inserted into the Act.34

8.21 The Greater Mary Association proposed a different model, whereby a mechanism should be available to compare the greenhouse gas emissions produced by an action against alternative proposals. This would then go to determining the acceptability of the project for the purposes of approval.35

8.22 A number of submissions proposed mechanisms that would result in biodiversity protection that would have a dual function of protecting ‘the carbon stored in natural ecosystems (‘green’ carbon’).36 The Green Institute submitted that ‘green carbon stores are effectively permanent because their biological diversity makes them selfgenerating, resilient and adaptive’.37

8.23 One option for greenhouse gas abatement is the greater use of nuclear power. It is noted that the EPBC Act currently requires approval for the undertaking of nuclear actions.

submissions opposed to inserting greenhouse mitigation measures into the act

8.24 The National Association of Forest Industries disagreed with proposals to ‘lock up’ carbon in forests. They submit that the forestry is the only carbon positive industry. They quote the Fourth Assessment Report of the Intergovernmental Panel on Climate Change, which states that production forestry will play an important role in greenhouse gas abatement.38

8.25 A number of other industry groups were also opposed to the insertion of mitigation measures into the EPBC Act. It was suggested that a greenhouse trigger would be duplicative to other carbon reduction methods.39 The Australian Petroleum Production and Exploration Association (APPEA) contended that:

The rationale for capturing projects that emit a threshold amount of CO2-e per a year or during the life of a project

cannot be sustained in today’s climate change landscape. The introduction of a greenhouse trigger into the EPBC Act only duplicates, inefficiently at that, the raft of current and future greenhouse policy measures’.40

29 Submission 008: Climate Action Network Australia; this type of prohibition was also supported in Submission 181: WWF.30 Submission 086: Greenpeace.31 Submission 017: Dr Chris McGrath.32 Submission 086: Greenpeace.33 Submission 055: Conservation Council (ACT Region).34 Submission 008: Climate Action Network Australia.35 Submission 129: The Greater Mary Association, p.2.36 e.g. Submission 162: The Green Institute, p.4.37 Submission 162: The Green Institute, p.4.38 Submission 133: National Association of Forest Industries.39 Submission 065: BP Australia.40 Submission 073: Australian Petroleum Production and Exploration Association, p.15.



8.26 APPEA also criticised the command and control regulation of emissions through a greenhouse trigger. They contend that:

Implementing a greenhouse trigger in the EPBC Act potentially leads to a range of economically inefficient outcomes including having Government determine:

■ technology;

■ production processes; and

■ energy inputs.

Current and planned policies bring greenhouse emissions into the business decision process more effectively and efficiently.41

8.27 The National Generators Forum expressed:

caution about the addition of climate change as a matter of NES. The issue is global and generic in nature and it would be difficult to transcribe into a matter of NES for assessment purposes as virtually any action may be considered to have climate change implications.42

8.28 The National Association of Forest Industries suggests that there is ‘a lack of supporting climate change policy’ for a greenhouse trigger.43 Woodside are also critical of proposals for a greenhouse gas trigger because it would result in investment uncertainty.44

8.29 An additional concern put forward by the Australian Property Institute is that a greenhouse gas trigger would ‘lead to a significant number of development applications being referred to the Commonwealth for determination, resulting in an indefinite timeframe for resolution of those development applications.’45 They indicate however, that clear targets and the insertion of appropriate timeframes would reduce these negative outcomes.

carbon Pollution reduction scheme (cPrs)

8.30 In public submissions there was limited detailed discussion of the interaction of a proposed greenhouse gas trigger and the Australian Government’s proposed emissions trading scheme – the CPRS.

8.31 Environment groups noted what they believed to be the low targets and limited coverage of the CPRS, and argued that it was not a panacea to greenhouse gas emissions.46 They therefore concluded that there was a need for a greenhouse gas trigger as an additional measure.47 Dr Chris McGrath notes that:

The [CPRS] commencing in 2010 will not avoid severe impacts to Australia’s major natural assets such as the Great Barrier Reef and, consequently, will not be effective in avoiding dangerous climate change.48

8.32 The NSW young Lawyers Committee also submitted that the exemptions in the proposed CPRS, such as agriculture and emission intensive trade exposed industries, could potentially be covered by a greenhouse gas trigger.49

8.33 ANEDO submitted that the CPRS sets a target, but the scheme does not show how mitigation should specifically occur. It submits that assessment of greenhouse intensive projects under the EPBC Act could provide this missing detail.50

41 Submission 073: Australian Petroleum Production and Exploration Association, p.16.42 Submission 122: National Generators Forum, p.2.43 Submission 133: National Association of Forest Industries, p.15.44 Submission 120: Woodside Energy.45 Submission 148: Australian Property Institute, p.1.46 Submission 189: Australian Network of Environmental Defender’s Offices, p.13.47 Submssion 074: New South Wales young Lawyers Environmental Law Committee.48 Submission 017: Dr Chris McGrath, p.4. The ‘gross’ inadequacy of the CPRS targets was also cited as a reason for additional measures such as a

greenhouse gas trigger, in Submission 162: The Green Institute, p.4.49 Submission 074: New South Wales young Lawyers Environmental Law Committee.50 Submisison 189: Australian Network of Environmental Defender’s Offices.



8.34 Moreland Energy Foundation submitted that:

A greenhouse trigger would complement existing Government policy measures to address Australia’s greenhouse gas emissions by ensuring that projects which are likely to create significant emissions are assessed and their impact minimised or prevented.51

8.35 Another argument, put forward by the North Queensland Conservation Council, noted the difficulty in achieving the proposed target of 60% reductions in greenhouse gas emissions by 2050 and suggested that this will ‘require the government to exploit every possible opportunity to ensure that new projects minimise their emissions.’52

8.36 Contesting these points, industry groups strongly indicated that a greenhouse gas trigger would not be complementary to the CPRS. BP Australia submitted that:

With the introduction of the [CPRS], it is not clear why additional measures to address climate change are required in the Act. By introducing a price on carbon through the CPRS, a project proponent must address the issue of greenhouse gas emissions and decide how to manage their liability as part of their business case. Additional legislative frameworks through the Act are therefore not required.53

8.37 APPEA specifically addresses the issue of complementarity:

More recently the Garnaut Report noted the role of complementary measures is to ‘lower the cost of meeting emission reduction trajectories, as well as adapting to the impacts of climate change by addressing market failures’. It is clearly the case that implementing a greenhouse gas trigger does not translate into addressing a market failure above and beyond current greenhouse policies.54

8.38 APPEA further indicate that the CPRS is ‘acknowledged as being the lowest cost abatement policy to reduce carbon emissions’55 and that ‘the EPBC Act does not and can not provide the appropriate legislative framework for addressing climate change.’ 56 The National Generators Forum suggested that a CPRS would more effectively and efficiently address issues with the emission of greenhouse gases.

8.39 The issues of efficiency in having a CPRS and a greenhouse gas trigger are addressed by Woodside Energy, who suggest that, once the CPRS is operating, a greenhouse gas trigger will:

limit choices properly made by the project proponents to respond to the market created by the emissions trading scheme; they pose significant risk of arbitrarily burdening projects with unnecessarily high costs, are likely to duplicate [CPRS] responses and offer little prospect of a net environmental or economic benefit either to the developer or the community.57

8.40 The Government of victoria also commented that:

Once a ‘cap’ is set under the CPRS, there is no environmental benefit to be gained from assessing greenhouse gas emissions associated with a proposal, as reducing the emissions associated with the proposal will just make emissions ‘permits’ available for other polluters.’58

51 Submission 118: Moreland Energy Foundation, p.1.52 Submission 152: North Queensland Conservation Council, p.1.53 Submission 065: BP Australia, p.2.54 Submission 073: Australian Petroleum Production and Exploration Association, p.16.55 Submission 073: Australian Petroleum Production and Exploration Association, p.16.56 Submission 073: Australian Petroleum Production and Exploration Association, p.25.57 Submission 120: Woodside Energy, p.2.58 The Senate Select Committee on Climate Policy, Report (2009) http://www.aph.gov.au/senate/committee/climate_ctte/report/index.htm at

18 June 2009, para [5.10].



8.41 This view was supported by the findings of the Senate Select Committee on Climate Policy, which noted that:

The Productivity Commission, in their submission to the committee, stated ‘under a ‘pure’ ETS with a binding quota, the quantum of emissions is fixed. In this case, other abatement policies aimed at sectors covered by the ETS could change the composition of emissions reductions but not total emissions.’ In other words, additional actions can only change the composition of the emissions mix, or influence the cost of abatement (including easing costs for particular parts of the community), or achieve other policy goals, such as industry development.59

senate inquiry into the operation of the ePBc act

8.42 The Senate Inquiry’s Terms of Reference required the Committee to examine the Act’s ‘effectiveness of responses to key threats identified within the EPBC Act, including … climate change.’60

8.43 The Committee recommended:

that the appropriateness of a greenhouse trigger under the Act and the nature of any such trigger, should it be required, be carefully considered in light of the findings of the independent review and in the context of the government’s overall response to climate change, in particular the CPRS. 61

8.44 In reaching this recommendation the Committee’s report made a number of key findings including that:

■ the ‘significance test’ does not allow for easy consideration of greenhouse gas emissions because these emissions only impact on protected matters in an indirect and cumulative sense;

■ introducing a greenhouse gas trigger may have implications in the context of the CPRS and these must be carefully considered. The Committee also noted that the proposed CPRS will define the government’s primary framework for action on climate change and, accordingly, the role, scope and operation of a greenhouse gas trigger in the Act would need to be considered in light of the final design of that scheme; and

■ greenhouse gas emissions are a listed key threatening process under the Act, but a threat abatement plan has not been developed.

8.3.3 Discussion of key points

rationale for reducing climate change

8.45 Climate change is a threat, or more appropriately a risk, to biodiversity conservation as ecosystems and species adapt to changed climatic parameters. However, the arguments that there is an obligation on the Australian Government to implement a greenhouse gas trigger are not convincing. Despite the fact that an effective greenhouse gas trigger may aid Australia’s international obligations as they relate to greenhouse gas emissions, it is clear that there is no obligation to insert statutory triggers into any particular piece of legislation. The Australian Government maintains the capacity to choose the most effective means of mitigation, which it has indicated is an emissions trading scheme in the form of the CPRS.

8.46 It was argued in submissions that the lack of a greenhouse gas trigger was a major shortcoming in the Act, as climate change is a significant threat to biodiversity and the objects of the Act are to allow for biodiversity protection and environmental conservation. This does not recognise that the threat of climate change is fundamentally different to the other threats to biodiversity. This is due to the long lag time between emission and impact; the strongly cumulative nature of the impacts and the global dimensions of the problem; and the need for major economic and environmental reforms, and probably societal reforms, to achieve adequate mitigation. Therefore it may not be appropriate to treat climate change mitigation under the same legislation as that controlling threats to biodiversity; alternatively, it may be argued that climate change is of such significance that it should be addressed in its own piece of legislation, not just as part of the EPBC Act.

59 The Senate Standing Committee on Environment, Communications and the Arts, The operation of the Environment Protection and Biodiversity Conservation Act 1999: Terms of Reference (2009) http://www.aph.gov.au/senate/committee/eca_ctte/epbc_act/tor.htm at 4 May 2009, s.2(d).

60 The Senate Standing Committee on Environment, Communications and the Arts, The operation of the Environment Protection and Biodiversity Conservation Act 1999: First report (2009) http://www.aph.gov.au/senate/committee/eca_ctte/epbc_act/report/report.pdf at 4 May 2009, Recommendation 2.

61 The Senate Standing Committee on Environment, Communications and the Arts, The operation of the Environment Protection and Biodiversity Conservation Act 1999: First report (2009) http://www.aph.gov.au/senate/committee/eca_ctte/epbc_act/report/report.pdf at 4 May 2009, Recommendation 2.



8.47 Conversely, climate change is a national issue with potentially national-scale impacts on biodiversity and the environment in general. It needs national-scale and uniform responses. The argument that ‘if climate change is not a matter of national environmental significance, what is?’ has considerable power.

cPrs and ePBc act mitigation

A greenhouse gas trigger

8.48 As noted earlier, most debate surrounding greenhouse mitigation is now focusing on market based mechanisms.

8.49 The Bill for the Australian Government’s proposed CPRS has been tabled and, at the time of writing, is currently before Parliament – although the public debate suggests it is unlikely to have a smooth passage through the Parliament, if at all. There is also uncertainty about the final details for the CPRS.

8.50 The Senate Inquiry recommended that this review examine the appropriateness of a greenhouse gas trigger in the context of the Government’s response to climate change, in particular the CPRS. The test for determining the appropriateness of a greenhouse trigger, or indeed other greenhouse abatement mechanisms, is whether it will be complementary to the CPRS.

8.51 The Australian Government has adopted principles which identify types of measures that will be complementary to the CPRS. These include:

■ mechanisms which will target market failures not expected to be addressed by the scheme, or that impinge on its effectiveness;

■ mechanisms which adhere to principles of efficiency, effectiveness, equity and administrative simplicity;

■ mechanisms which are targeted to market failures which are amenable to government action and, in the case of regulatory measures, are guided by best practice regulatory principles;

■ mechanisms targeted to manage impacts for particular sectors of the economy; and

■ mechanisms which are implemented by the level of government best able to deliver the measure.62

8.52 Measures that have been identified as complementary include energy efficiency measures, mandatory renewable energy targets, and carbon capture and storage. The Australian Government also commissioned a review into complementary measures.63

8.53 The Productivity Commission in its submission to the Garnaut Review noted that the CPRS should be the primary mechanism by which significant cuts in greenhouse gas emissions should be delivered.64 It is suggested that ‘this is because the market is likely to achieve an efficient outcome through the decentralised price-responsive actions of everyone in the economy’.65

8.54 The proposals that have been put forward to this review for a wide-ranging regulatory regime achieved through the imposition of a greenhouse gas trigger are inconsistent with the reliance on the price signal that lies at the heart of the CPRS. There may be an argument for a greenhouse trigger where there is no price signal, for example emissions from native vegetation clearance. However, if a CPRS is introduced in the relatively near future, this review would not support the creation of a broad based greenhouse gas trigger.

8.55 The observation made in the victorian Government submission that in a permit-based system, reduction in emissions through project approvals simply frees up permits for others is worth considering.

62 Carbon Pollution Reduction Scheme: Australia’s Low Pollution Future, White Paper, vol 1.63 The Strategic Review of Australian Government Climate Change Programs (Wilkins Review) (2008)

http://www.finance.gov.au/publications/strategic-reviews/index.html at 28 May 2009.64 Productivity Commission, Garnaut Review Submission (2008) http://www.pc.gov.au/research/submission/garnaut at 28 May 2009.65 As is explained in detail in Andrew Macintosh ‘A greenhouse trigger: where did it go and what of its future’ in Tim Bonyhday and Peter Christoff

(eds), Climate Law in Australia (2007) pp.44-56.



8.56 Both sides of Australian politics have played with the idea of a greenhouse gas trigger.66 In 2000 the then Environment Minister consulted the States on a potential trigger based on controlled actions emitting greater than 500,000 tonnes of carbon dioxide equivalent per year. As recently as 2006 the Australian Labor party also introduced from Opposition a proposal for a trigger based on controlled actions emitting greater than 500,000 tonnes of carbon dioxide equivalent per year. The Australian Greens have proposed three different triggers with thresholds of 50,000, 500,000 and 100,000 tonnes of carbon dioxide equivalent per year.

Operation of a greenhouse gas trigger prior to the CPRS

8.57 If there is to be a delay in effective establishment of the CPRS then there is a much stronger case for introduction of a greenhouse gas trigger to drive down emissions in the interim period.

8.58 If this path were pursued then consideration should be given to ‘sunsetting’ the obligation so as to avoid potentially perverse outcomes once a market mechanism was operational.

Other proposals

8.59 It is noted that there are two other proposals for greenhouse mitigation under the EPBC Act, including a prohibition on designated proposals and an offset scheme for land clearance.

8.60 While not truly complementary to the CPRS, specific prohibitions may be warranted if there are strong public policy grounds for preventing certain greenhouse intensive activities. A 10-year moratorium on new coal fired power stations without carbon capture and storage is a possible example of this prohibition. This moratorium may aid achievement of the goal of stabilisation of atmospheric concentrations of greenhouse gases at around 450 parts per million of carbon dioxide equivalent, which is strongly in the national interest. The question remains as to whether this is the most appropriate way to achieve such a goal, especially as carbon capture and storage is a not yet proven technology.

8.61 Proposals for mechanisms which help lock up green carbon, such as an offset scheme for land clearance, are more likely to be complementary to the CPRS. This is in part because the CPRS does not purport to cover carbon losses from land clearance and deforestation.67 It is also notable that the Australian Government’s White Paper on the CPRS made plain that the Government was looking for mitigation measures where the CPRS does not apply. It stated:

If sources of emissions cannot be covered, the Government will, where practical, apply alternative mitigation measures. The purpose of such measures will be to ensure that firms with uncovered sources of emissions make an equivalent contribution to achieving Australia’s national emissions reductions objectives and have incentives to undertake abatement.68

8.62 The obvious area to consider is land clearance which currently accounts for a significant level of Australia’s greenhouse gas emissions and is not covered by the CPRS. Imposing an equivalent carbon price on polluters responsible for land clearance could be both equitable and efficient.

8.63 One means of doing so would be to establish an offset scheme for land clearance. While the government put forward a range of arguments for why deforestation should be excluded from the CPRS,69 these arguments are less applicable to an offset scheme, as the offset scheme would be much simpler than the CPRS for landholders to comply with and government to administer.

8.64 A potential scheme could apply above a certain threshold. The value of the offset required could be set periodically by Government to give certainty and, as envisaged by the CPRS White Paper, would be roughly the same as the ‘price’ under the CPRS. The offset would be based on carbon content of the land cleared – with regulations identifying different categories of vegetation, either using existing categories developed by the National Carbon Accounting System or modifying these categories.

66 As is explained in detail in Andrew Macintosh ‘A greenhouse trigger: where did it go and what of its future’ in Tim Bonyhday and Peter Christoff (eds), Climate Law in Australia (2007) pp.44-56.

67 Carbon Pollution Reduction Scheme: Australia’s Low Pollution Future, White Paper. 68 Carbon Pollution Reduction Scheme: Australia’s Low Pollution Future, White Paper, vol 1, 6-6, see also 6-45, 6-62.69 Carbon Pollution Reduction Scheme: Australia’s Low Pollution Future, White Paper, vol 1, 6-61.



8.65 While the statutory provisions for determination of the price and the payments might have to be in a separate piece of legislation for technical constitutional reasons, the EPBC Act could be amended so that the revenue generated by the offset payments would go into a new statutory fund to be used to purchase land and grow trees.

Climate change adaptation

Key points raised in public submissions8.66 There were fewer submissions on climate change adaptation than on greenhouse gas emission mitigation.

8.67 Submissions in relation to climate change adaptation discussed:

■ the likely biodiversity implications of climate change and the consequences for biodiversity management;

■ changes to existing provisions of the EPBC Act to better manage climate change impacts; and

■ the potential for fundamental shifts in the operation of the Act in biodiversity management.

Biodiversity implications of climate change

8.68 Submitters identified potential impacts of climate change on biodiversity, and suggested ways that these increased pressures could be managed. Birds Australia believed that ‘climate change will exacerbate the effects of fragmentation on most taxa through range alterations and altered hydrological and weather regimes.’70 The National Parks Association of Queensland, quoting the Queensland EPA, similarly noted that ‘loss of many species and changes in composition and functioning of ecosystems is inevitable.’71 The Office of the Environmental Sustainability Commissioner (victoria) submitted that climate change may lead to increased pressures from extreme fire and flood events, as well as a hotter, drier and more variable climate.72 The Invasive Species Council (Australia) noted the synergistic interaction between invasive species and climate change, and that climate change will potentially expand the range of invasive species and their impacts on biodiversity.73

8.69 The ANEDO contended further that, in light of climate change, ‘biodiversity management will become increasingly difficult as species and ecological communities change their geographic distributions, abundances and interactions.’74

8.70 Other submitters noted that the implications of climate change for biodiversity were subject to considerable debate.75 The Nature Conservation Council of NSW noted that:

it appears that the traditional approach of conservation – where efforts have been made to preserve individual species in specific areas/landscapes – does not address the fact that it is very difficult to predict how species and ecosystems will respond to climate change.76

8.71 Submitters indicated that this additional pressure required some form of action. The NSW young Lawyers submitted that:

Given the importance of climate change as one of the two most important issues affecting conservation of biodiversity in Australia, it is essential that the current review process consider how climate change may be better addressed, particularly in the conservation of biodiversity.77

70 Submission 066: Birds Australia, p.5.71 Submission 100: National Parks Association of Queensland, p.2. The concern that climate change will lead to a greater number of species

extinctions was put forward in Submission 145: Office of the Commissioner of Sustainability and Environment (victoria).72 Submission 145: Office of the Commisioner of Sustainability and the Environment (victoria).73 Submission 166: Invasive Species Council (Australia). The concern about invasive species and climate change was also put forward in Submission

181: WWF.74 Submission 189: Australian Network of Environmental Defender’s Offices , p.39.75 Submission 112: Australian Recreational and Sportfishing Industry Confederation, p.7.76 Submission 188: Nature Conservation Council of New South Wales, p.2.77 Submission 074: New South Wales young Lawyers Environmental Law Committee, p.7.



8.72 Submissions raised a number of ecological functions that they believed should be the focus of the Act, or afforded additional protection in light of the increasing pressures of climate change. These included:

■ habitat in the range of species affected by climate change;78

■ habitat connectivity;79

■ climate refugia sites;80

■ wildlife corridors;81

■ mosaics;82

■ trigger points (‘areas where species and assemblages are found that have potential to radiate out from a localised point in response to changing climate’);83

■ critical habitat;84

■ representative ecosystems;85

■ key functional species;86

■ large patches of vegetation;87 and

■ structural complexity.88

amending the ePBc act to improve adaptation mechanisms

8.73 The CSIRO contended that ‘the current Act does not provide a long-term basis for addressing biodiversity conservation in the context of climate change’.89 Submitters noted a general need to address these issues in Act including that:

■ ‘consideration should be given to improving the capacity and flexibility of the Act to respond to environmental pressures in a fastchanging environment;’90 and

■ ‘climate change considerations should be explicitly brought into decisionmaking throughout the EPBC Act.’91

Listing

8.74 It has been suggested that the additional pressures of climate change create a need to be ‘forward thinking to include species and communities for listing that are “potential” candidates even if not currently listed, based on best scientific evidence.’92

78 Submission 066: Birds Australia.79 Submission 066: Birds Australia.80 Submission 100: National Parks Association of Queensland; Submission 105: Noosa Integrated Catchment Association and; Submission 182:

Humane Society International – who submit that the definition of critical habitat should be expanded to include climate refugia.81 Submission 100: National Parks Association of Queensland; and Submission 105: Noosa Integrated Catchment Association.82 Submission 100: National Parks Association of Queensland.83 Submission 100: National Parks Association of Queensland, p.2.84 Submission 135: CSIRO, p.3.85 Submission 189: Australian Network of Environmental Defender’s Offices.86 Submission 189: Australian Network of Environmental Defender’s Offices.87 Submission 189: Australian Network of Environmental Defender’s Offices.88 Submission 189: Australian Network of Environmental Defender’s Offices.89 Submission 135: CSIRO, p.2.90 Submission 181: WWF, p.25.91 Submission 182: Humane Society International, p.4.92 Submission 018: Ipswich City Council, p.3.



8.75 The Humane Society International recommended that:

The predicted impacts of climate change on a species or ecological communities should be considered explicitly when deciding whether to list them as threatened. Such an approach would assist the Government [to] deal with the threat climate change poses to biodiversity in a pre-emptive rather than reactive manner ... Given that climate change presents such a grave and pervasive threat to biodiversity, it would be prudent for the EPBC Act to become more pre-emptive in dealing with it.93

8.76 It was suggested that future listing of ecological communities may be problematic, as the composition of a particular community may change due to the impacts of climate change. CSIRO noted that ‘the logic behind using a fixed list of communities to assess conservation status (as assumed in the current Act) is likely to fail under climate change.’94

8.77 The ANEDO further proposed a ‘climate change vulnerability assessment’ as a required step when determining the listing of a species or ecological community.95

Environmental Impact Assessment (EIA)

8.78 Submissions proposed a number of suggested changes to the EIA provisions in the Act to better engage with climate change including:

■ that EIA should engage with scenario planning as a way of dealing with climate change impacts on biodiversity;96

■ that, in light of climate change, the future feasibility of projects should be assessed— an example was provided of a dam that would not fill with water as a consequence of changing climate;97

■ that offsetting under the Act needs to explicitly consider the value of enhanced habitat connectivity in dealing with climate change,98 or that offsets should not be allowed to compromise the resilience and functionality of ecosystems;99

■ that increased biodiversity pressures from sea level rise needs to be considered;100

■ that in the face of climate change there needs to be an altered approach to the ‘significant impact’ test whereby ‘the onus of proof in the Act should be reversed so that only actions which can be shown to have no significant impact on matters of national environmental significance should be contemplated’; 101 or

■ that there could be a move to ‘site based assessment’ which could then consider the importance of the site for adaptation, including whether it could be a climate refuge or a wildlife corridor.102

93 Submission 182: Humane Society International, p.25.94 Submission 135: CSIRO, p.2.95 Submission 189: Australian Network of Environmental Defender’s offices.96 Submission 105: Noosa Integrated Catchment Association.97 Submission 129: Greater Mary Association.98 Submission 066: Birds Australia.99 Submission 189: Australian Network of Environmental Defender’s Offices, p.59.100 Submission 199: Government of South Australia.101 Submission 153: The Wilderness Society, p.8.102 Submission 189: Australian Network of Environmental Defender’s Offices.



General improvement

8.79 It was suggested that the unpredictability of climate change means that specifying EPBC Act amendments to manage uncertain climate change would not be a productive approach. While some submissions identified climate change as a ‘new challenge’ for biodiversity protection,103 the counterpoint was put forward that climate change will be an additional pressure on top of the existing stressors for biodiversity and should be viewed as such. The Office of the Environmental Sustainability Commissioner (victoria) submitted that: ‘Climate change threatens biodiversity directly, by affecting ecosystem processes and habitats, and indirectly, by compounding the impacts of existing and ongoing pressures on biodiversity’.104

8.80 The implication is that existing biodiversity tools need to be better utilised and that existing threats and impacts need to be better managed rather than that new tools be developed. The Invasive Species Council suggested that climate change ‘threats highlight the current lack of effective regulation and management of invasive species’.105 This view was also reflected in a biodiversity workshop held by this review.

8.81 Australian Recreational and Sportfishing Industry Confederation conversely argued that:

the threat of climate change should not be used as an excuse to further restrict recreational fisheries either through extension of no fishing zones or through listing of recreational fishing as a key threatening process until such time as scientific evidence proves this.106

fundamental shifts

8.82 The Green Institute claimed that in light of climate change there needs to be a ‘paradigm shift’ so that environmental damage is no longer sanctioned, but rather stopped. The Institute further submitted that there needs to be a shift to ‘a regime based on attempting to recover rather than prevent threatened species and communities,’ to ensure efficiency, risk minimisation and reduce expenses.107

8.83 The Green Institute proposed that ‘climate change also requires reappraisal of much of the thinking that underpins conventional approaches to biodiversity protection. Landscape connectivity becomes critically important in the face of uncertainty about future climate and habitat availability for protecting genetic, species and ecosystem diversity and function.’108

8.84 Several environmental groups introduced the notion of ecological triage (that is, only protecting species that have a chance of survival). The Nature Conservation Council submitted that ‘the national conservation approach may need to change to thinking about how opportunities can best be provided for as many different species as possible to survive climate change’.109

8.85 ANEDO and the CSIRO also called for a rethinking of broader biodiversity conservation policy, and a possible move to ecological triage because policy objectives including protecting all species in situ will be impossible to achieve.110

8.86 ANEDO provided several key principles which they believe need to underpin the EPBC Act’s response to climate change. Firstly, it proposed that there needs to be greater adaptive management under the Act and that the Act will need to recognise and manage uncertainty. Secondly, it proposed that there is a need to prioritise protection and recovery methods and to consider triage. Finally, it proposed the possibility of assisted migration of particular species to allow for their survival.111

103 Submission 188: Nature Conservation Council NSW, p.8.104 Submission 145: Office of the Environmental Sustainability Commissioner (victoria), p.3.105 Submission 166: Invasive Species Council (Australia). 106 Submission 112: Australian Recreational and Sportfishing Industry Confederation, p.7.107 Submission 162: The Green Institute, p.5.108 Submission 162: The Green Institute, p.5. The idea of a ‘wholesale revision of the Act in order to address climate change’ is also suggested in

Submission 188: Nature Conservation Council NSW, p.2.109 Public consultation - Dr Mark Lonsdale, CSIRO, pers. comm. (Canberra, 17 February 2009).110 Submission 189: Australian Network of Environmental Defender’s Offices; Submission 135: CSIRO.111 Submission 189: Australian Network of Environmental Defender’s Offices.



8.87 The CSIRO submitted that:

The way native species and ecosystems, and threats to them, will respond to climate change will have inevitable consequences for the conservation of biodiversity.

The changing nature of biodiversity dictates we must reformulate the core objects of biodiversity conservation. The current (implicit) objective of preventing any change to biodiversity (in selected places) will become untenable. We will need to shift to something like ‘managing the change to minimise the loss’. We need to get there, but we don’t know how to do it yet.112

8.88 During public consultations for this review, the CSIRO indicated that in light of climate change, the EPBC Act could continue to function effectively for approximately another 10 years before it would need major reforms. A delay in reforming the Act may have benefits, as the science regarding the impacts of climate change on biodiversity is still developing.113

Landscape approaches

8.89 Following calls for enhanced habitat connectivity to shield species from climate change implications, submitters suggested that landscapescale assessments would enable the Commonwealth to take an ecosystems-based approach to decision-making in relation to biodiversity protection, protected areas strategies, threatened species recovery and threat abatement. The Colong Foundation for Wilderness emphasised the importance of large tracts of wilderness as having the required ecological resilience to deal with climate change pressures.114 The ANEDO also recommended moving to an ‘ecosystem based approach’ and focusing on ‘protecting key functional species and diversity within functional groups’ to increase ecosystem resilience.115 It further submitted that this would involve the identification, listing and protection of keystone species rather than all threatened species.

senate inquiry into the operation of the ePBc act

8.90 The Senate Inquiry did not discuss climate change adaptation beyond consideration of climate change as a key threatening process under the Act.

Discussion of key points8.91 COAG has produced a framework on climate change adaptation which recognises that:

Many ecosystems are likely to be adversely affected by increasing temperatures, changes to rainfall patterns, the spread of pests and weeds, changed fire regimes and sea–level rise. Higher temperatures, possible changes in ocean currents, and potential changes in ocean chemistry are likely to affect marine ecosystems. Impacts on biodiversity will affect ecosystem services such as water filtration, soil quality and shelter.

Reducing other stresses on biodiversity, such as overuse and pollution, is likely to ameliorate species loss, system degradation and range contraction due to climate change. Healthy ecosystems are more resilient to climate change impacts and able to ‘bounce back’. Some ecosystems are particularly vulnerable such as coral reef systems, coastal wetlands (including Kakadu) and saltmarshes, alpine areas, rainforests, fragmented terrestrial ecosystems and the kwongan heathlands of south–west Western Australia.

Most of Australia’s World Heritage properties are listed for their natural heritage values and are likely to be vulnerable to the impacts of climate change.116

112 Submission 135: CSIRO, 3.113 Public consultation - Dr Mark Lonsdale, CSIRO, pers. comm. (Canberra, 17 February 2009).114 Submission 119: Colong Foundation for Wilderness.115 Submission 189: Australian Network of Environmental Defender’s Offices, p.40.116 COAG, National Climate Change Adaptation Framework (2007) http://www.coag.gov.au/coag_meeting_outcomes/2007-04-13/docs/national_

climate_change_adaption_framework.pdf at 4 June 2009.



8.92 This review generally agrees with this position, and notes that there is a need to develop better systems to protect biodiversity in light of the additional pressure of climate change.

8.93 As discussed above, there is a dispute between submissions who advocate that specific adaptation mechanisms be inserted into the Act and those who support better use of existing mechanisms or an improvement in the status quo of biodiversity protection. This review is considering a number of measures that will provide for better protection of biodiversity in general, such as the use of landscape scale assessments. The benefits of specific mechanisms which allow for climate change adaptation will depend on the merits of each proposed measure and these will need to be explored further.

8.94 Greater context for the proposals made above can be found in the relevant chapters of the interim report, including:

■ threatened species and ecological communities (Chapter 12);

■ biodiversity conservation,, recovery planning and threats management (Chapter 13);

■ environmental impact assessment (Chapter 4); and

■ strategic assessments and bioregional planning (Chapter 10).

climate change (in: independent review of the environment … · 134 independent review of the...

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