Bushfire survivors just won a crucial case against the NSW environmental watchdog, putting other states on notice

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Laura Schuijers, The University of MelbourneThis week was another big one in the land of climate litigation.

On Thursday, a New South Wales court compelled the state Environment Protection Authority (EPA) to take stronger action to reduce greenhouse gas emissions. It’s the first time an Australian court has ordered a government organisation to take more meaningful action on climate change.

The case challenging the EPA’s current failures was brought by a group of bushfire-affected Australians. The group’s president said the ruling means those impacted by bushfires can rebuild their homes, lives, and communities, with the confidence the EPA will also work to do its part by addressing emissions.

The group’s courtroom success shows citizens can play an important role in bringing about change. And it continues a recent trend of successful climate cases that have held government and private sector actors to account for their responsibility to help prevent climate-related harms.

Who are the bushfire survivors?

Members of the group, the Bushfire Survivors for Climate Action, identify as survivors, firefighters and local councillors impacted by bushfires and the continued threat of bushfire posed by climate change.

Their stories paint a picture of devastating loss, and fear of what might be to come. One member, who lost her home, tells of harrowing hours looking for friends and family amid a dark, alien moonscape. Another, a volunteer firefighter, describes the smell of charred and burnt flesh and the silence of the incinerated forests that haunted him.

Fiona Lee, a member of the Bushfire Survivors group, stands in the ruins of her home after a bushfire swept through.
Bushfire Survivors for Climate Action

The group argues that because the NSW EPA is required, by law, to protect the environment through quality objectives, guidelines and policies, these instruments also need to cover greenhouse gas emissions.

Their reasoning is hard to fault: climate change is one of the environment’s most significant threats. In today’s world, you can’t protect the environment without addressing climate change.

To establish this point, the bushfire survivors presented the latest report from the Intergovernmental Panel on Climate Change, which was released while the trial was being heard. The report describes how the temperature rise in Australia could exceed the global average, and predicts increasingly hotter and drier conditions.

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Read more:
Climate change has already hit Australia. Unless we act now, a hotter, drier and more dangerous future awaits, IPCC warns

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An unperformed duty

The EPA’s statutory duty to protect the environment was already known before the litigation began. That’s because the duty is contained within the EPA’s own legislation.

The Bushfire Survivors brought their case to the NSW Land and Environment Court.
Bushfire Survivors for Climate Action

The EPA protects the environment from other types of pollutants by issuing environment protection licences, monitoring compliance, and imposing fines and clean-up orders. The bushfire survivors were seeking to force the EPA to address greenhouse gas emissions as well.

The EPA unsuccessfully tried to establish it is not required to address any specific environmental problem — i.e. climate change. And it argued that even if it is, it has already done enough.

But the court agreed with the bushfire survivors that the EPA’s instruments already in place aren’t sufficient, leaving the duty “unperformed”.

The court didn’t specify exactly how the EPA should remedy the fact it isn’t adequately addressing climate change, meaning the EPA can decide how it develops its own quality objectives, guidelines and policies, in a way that leads to fewer emissions. It is not the court’s job to make policy.

The EPA might, for example, target the highest-emitting industries and activities, via controls or caps on greenhouse gases.

Importantly, however, the court said the EPA doesn’t have to match its actions with a particular climate scenario, such as a global temperature rise of 1.5℃.

Other states on notice

Although this ruling is specific to NSW, other state environment protection authorities also have legal objectives to protect the environment.

This case may cause other Australian environmental authorities to consider whether their regulatory approaches match what the law requires them to do. This might include a responsibility to protect the environment from climate change.

Another thing we know from the NSW case is that simply having policies and strategies isn’t enough.

The court made it clear aspirational and descriptive plans won’t cut the mustard if there’s nothing to “set any objectives or standards, impose any requirements, or prescribe any action to be taken to ensure the protection of the environment”.

The EPA tried to point to NSW’s Climate Change Framework and Net Zero Plan as a way of showing climate change action. But neither of these was developed by the EPA.

The EPA also presented documents it did develop, including a document about landfill guidelines, a fact sheet on methane, and a regulatory strategy highlighting climate change as a challenge for the EPA.

The court found these weren’t enough to address the threat of climate change and discharge the EPA’s duty, calling the regulatory strategy’s description of climate change “general and trite”.

An Australian first, but not an anomaly

Globally, climate litigation is playing a role in filling gaps in domestic climate governance. Cases in Europe, North and South America, and elsewhere have led to courts pushing governments to do more.

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Read more:
In a landmark judgment, the Federal Court found the environment minister has a duty of care to young people

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One of the world’s first major successful climate change cases, Massachusetts v EPA, was similar to the bushfire survivors’ case. Back in 2007, the state of Massachusetts, along with other US states, sued the federal US EPA. They were seeking to force regulatory action on greenhouse gas emissions, and a recognition of carbon dioxide as a pollutant under the Clean Air Act.

While the NSW case comes 14 years after the US case, there has been plenty of courtroom action in Australia in the meantime, with cases against the financial sector, government actors, and corporations.

The Australasian Centre for Corporate Responsibility just filed a lawsuit against Santos.
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In fact, on the same morning as the bushfire survivors’ case, a lawsuit was filed against oil and gas giant Santos in the Federal Court.

The Australasian Centre for Corporate Responsibility will argue statements made in Santos’s annual report are misleading and deceptive. These statements include that natural gas is a “clean fuel” and that it has a “clear and credible” plan to achieve net-zero emissions by 2040.

Climate change is an inevitable problem, and one that will be costly. Lawsuits seeking to force action now aim to limit how great the costs will be down the track. By targeting those most responsible, they are a means of seeking justice.

Laura Schuijers, Research Fellow in Environmental Law, The University of Melbourne

This article is republished from The Conversation under a Creative Commons license. Read the original article.

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Want to see the business case for green energy? Just look at China

John Mathews and Hao Tan, University of Newcastle

The narrative around renewable energy sources is typically framed almost entirely in terms of their contribution to reducing carbon emissions and thereby providing a means to tackle climate change. From this perspective, the drive for renewables is inseparably linked to international negotiations over reducing carbon emissions, which will come to a head at the United Nations summit in Paris towards the end of this year.

But this framing of the story struggles to explain the rise of China as the world’s renewables superpower. It is investing more in renewable energy production and manufacturing of renewable energy devices than any other country. Is China making these huge investments – not to mention launching a national emissions trading scheme – purely to accommodate the world’s desire to see carbon emissions reduced?

This is the question that we address in our new book, China’s Renewable Energy Revolution, published this month.

Our argument is that China is motivated by much more immediate concerns. Because of the dominant role played by coal in its rise as the world’s largest manufacturing economy, China suffers from catastrophic air pollution, particularly the toxic mix of tiny particulate matter that penetrates deep into the lungs of people breathing the air of Beijing, Tianjin, or other major industrial cities. The issue has prompted anger and social agitation, with the public demanding that environmental laws be enforced. (See, for example, the explosive impact of the documentary Under the Dome, by investigative journalist Chai Jing.)

Yet the real problem for China in continuing on a “business as usual” pathway is that it would become increasingly dependent on imports of coal, oil and gas – and therefore grow more vulnerable to price fluctuations and sudden interruptions to supply. More pointedly, as a relative newcomer to the global fossil fuel market, China is forced to locate supplies from more and more unstable parts of the world, putting it at financial risk from war, revolution and terrorism even in distant lands.

These concerns over energy security, and the immediate issue of air pollution, are in our view likely to be weighing more heavily on the Chinese leadership than concerns about climate change.

New paths to growth

Our view is that China is running into the limits of a predominantly fossil-fuelled expansion and now needs to find a new development pathway based on green growth and clean technology. This, we argue, is what lies behind its vast investments in renewables.

In per capita terms, China is of course not yet abreast of the developed countries in its overall energy consumption or its renewable energy use. But this is not evidence that China is going “light” on renewables; on the contrary, as a rising middle-level power, it still has plenty of room to grow its already large renewable energy industries.

Solar energy looks like having a bright future in China.
Reuters/William Hong

Even though per capita use is still modest, the absolute size of the renewables investment in China allows new industries to scale up, which in turn leads to lower costs as efficiencies are captured. Through the principle of circular and cumulative causation, this leads to further market expansion and further cost reductions. The cost reductions then create opportunities for countries in the rest of the world to become involved in renewable energy as well.

China is already on the record in viewing its clean technology sectors as key drivers of future prosperity and export platforms. The 12th Five-Year Plan, which ends this year, set out the comprehensive goals for China’s economic development. It featured seven Strategic Emerging Industries (SEIs) that were earmarked for special promotion, including three industries closely related to the burgeoning energy transition: energy saving and environment protection; new energy sources; and new-energy-powered cars.

The plan laid out a target that production value-added from these seven SEIs should reach 8% of China’s gross domestic product (GDP) by 2015. This target has since been raised to reach 15% of GDP in 2020. There could be no clearer demonstration of how China views the link between building energy security, improving environmental protection and creating the export platforms of tomorrow.

There’s a lot of financial mileage in battery-powered cars.
Reuters/Stringer China

China’s green business case

As we see it, China has a lot more riding on its renewables revolution than (just) climate change concerns. Important as these are, it is a profoundly convenient truth that the more China builds its export platforms around renewables, smart energy grids, and clean transport technologies such as fast rail and electric vehicles, the more it drives down its own carbon emissions and the costs of these clean technologies for everyone else.

The lesson for industrialised countries such as Australia is that renewables do not have to be framed solely as an issue of climate change and its mitigation. In keeping with the new emphasis of the Turnbull government on a 21st-century agenda, with the focus on tackling the challenges and seizing the opportunities created by industries of the future (such as renewables) rather than sticking with those of the past (coal), it is the business case that needs to be made.

China has shown very clearly that renewables make excellent business sense in the 21st century. Now it is up to Australian leaders, such as the new energy minister, Josh Frydenberg, and assistant innovation minister, Wyatt Roy, to act on the same understanding and help build – finally – a great renewables industry in Australia.

John Mathews, Professor of Strategic Management, Macquarie Graduate School of Management and Hao Tan, Senior Lecturer, Faculty of Business and Law, University of Newcastle

This article was originally published on The Conversation. Read the original article.

Japan Looses Whaling Case

Last United States Jaguar Killed?

Is it possible that the last known Jaguar in the United States has been killed by a government employee? This could indeed be the case according to news reports out of the United States.

The Jaguar was caught in Arizona and released with a radio tag. However, the animal was soon found to be in poor health and was captured again and put down. It would seem that injuries sustained in the original capture of the Jaguar led to its death and the possible extinction of the Jaguar in the United States and certainly within Arizona. The capture of the Jaguar appears to have been in violation of the Endangered Species Act.

For more information see:

http://www.azstarnet.com/news/state-and-regional/article_c1fa70e7-ec29-50ee-8de2-015fcbd515e7.html

http://www.ens-newswire.com/ens/jan2010/2010-01-22-091.html