Category: Articles

WA Government Bans Fracking, pending a scientific inquiry

On 5 September 2017 the West Australian government announced that it had banned fracking in the South West, Peel and Perth metropolitan regions and put in place a statewide moratorium, pending an independent scientific inquiry. The moratorium prohibits companies from using fracking during exploration or production.

A committee, to be chaired by the Environmental Protection Authority (EPA) chair Dr Tom Hatton, will conduct the scientific inquiry into fracking. The Inquiry will seek independent expert advice about the process of fracking in Western Australian geologies and environments. The scope is to understand the immediate and long-term impacts of the fracking process on environment, water, agricultural productivity and community. The synthesis of this input by the inquiry will inform Government about the viability of this process in Western Australia. For further details on the Inquiry please click here.

“The scientific inquiry will use credible scientific and historical evidence to assess each level of risk associated with fracking and outline regulatory mechanisms to identify and minimise potential risks to the environment, health, agriculture, heritage and the community.”
(Department of Mines, Industry Regulation and Safety acting Executive Director Petroleum Denis Wills)

However, unlike other broader inquiries across Australia, this inquiry is more limited in scope because it is not considering the fracking industry and its socio-economic impact on other industries, and the comparative value of fracking against other energy producing technologies. 

EDOWA will provide updates and commentary on the inquiry as it progresses.

How to Regulate Diffuse Water Pollution from Agriculture

Jeanette Jensen is currently doing a PhD in the area of environmental and water resources law with the title ‘How to Regulate Diffuse Source Water Pollution from Agriculture? A Comparative Analysis of the Australian and the European Union Legal Frameworks’. She recently graduated with a Master of Mining and Energy Laws from the University of Western Australia. She also holds LL.B. and LL.M. degrees from the University of Copenhagen. Prior to commencing her PhD, she worked as a research assistant to Professor Alex Gardner on research project CRC for Water Sensitive Cities and to Professor John Chandler on research project Petroleum Resource Regulation and Policy.

Diffuse source water pollution (DSP), or non-point source pollution, may be defined as ‘all sources of pollution that enter waters other than from identifiable entry points’, and can thus ‘encompass contaminants that enter waters through surface water run-off or by soil percolation through soil’.[1] The agricultural practices that typically lead to these events are the application of fertilisers and pesticides, tillage practices, habitat alteration, animal waste and soil erosion.[2] These activities can cause nutrient pollution in terms of water eutrophication, soil siltation, and chemical deterioration of water,[3] which impacts have wide-ranging damaging effects on the environment and the economy. For example, eutrophic lakes impact recreation, ecosystem integrity, and human and animal health.[4] Cyanobacteria, the active ingredient in most harmful freshwater algal blooms,[5] ‘deposit unsightly, bad-smelling, mucilaginous clumps of dead and senescing cells on the shore and surface of lakes’, can poison livestock, pets, and humans, and some iproduce toxins that kill aquatic animals.[6]

Researchers first recognised DSP around the late 1960s.[7] In 2005, it was considered ‘today’s leading water quality problem, and diffuse source pollution from agriculture and the urban periphery, its most intractable dimension’.[8] This remains the case today.[9] The most well-known Australian example in which agricultural DSP has manifested is the Great Barrier Reef (GBR).[10] The nutrients have caused significant declines in many habitats and species, especially in the inshore southern two-thirds of the Region, declines in ecosystem processes and natural heritage values.[11] Agricultural land use is also one of the main sources of nutrients in Australian inland waters.[12] In March 2016, the spread of blue-green algae over almost 500km of the Murray River claimed reservoirs, rivers, wetlands and parts of Victoria’s two biggest irrigation districts and induced a water crisis, as taps to towns and farms in some areas had to be turned off to avoid potential public health risks.[13]

In south-western Australia, a number of important coastal estuarine systems are threatened by agricultural DSP. The Peel-Harvey Estuary, which is a Ramsar-listed wetland of international importance,[14] has suffered decades of nutrient pollution compromising water quality.[15] Again, agricultural land use along the rivers feeding the Estuary is the main source of the excess nutrients causing severe toxic algal blooms.[16] Another Western Australian example is the Vasse Wonnerup and Geographe Bay wetlands. The State Government has recently allocated $7.15 million to reduce nutrients in the catchment, including from agriculture.[17] Finally, a warning similar to that for the Murray River in Victoria was issued for a possibly toxic algal bloom in Perth’s Canning River in March 2016.[18] In fact, the Swan-Canning river system has experienced annual algal growths over the past two decades.[19]  In summary, while DSP has been recognised for over thirty years to have a severe impact on water quality, it is still ‘the unfinished business of water quality regulation in Australia’.[20] Non-statutory instruments and voluntary measures have been preferred to tackle the problem, however, with limited success.[21]

According to the OECD:

The relative lack of progress with reducing diffuse source pollution reflects the complexities of controlling multiple pollutants from multiple sources, their high spatial and temporal variability, associated transaction costs, and limited political acceptability of regulatory measures.[22]

Indeed, DSP is deemed hard to regulate.[23] The multiple pollutants from multiple sources, which accumulate into a problem, combined with the spatial and temporal variability due to, inter alia, the physical features of the site and climatic conditions make it difficult to identify, measure and attribute individual emissions.[24] This in turn makes it difficult to utilise the traditional pollution abatement mechanisms of liability and enforcement,[25] which have been very successful in reducing point-source pollution, such as industrial waste from a pipe or drain. Its political sensitivity may be accorded to the impact on the industry and its significance for society.[26]

The main culprits of agricultural DSP are nitrogen[27] and phosphorus,[28] and nitrogen and phosphorus fertilisers are commonly considered fundamental to improving crop yields and economic returns.[29] It has been estimated that nitrogen ‘accounts for an estimated 40% of the increase in per capita food production in the past 50 years’.[30] For this reason, the sources of DSP from agriculture can be ‘politically untouchable’.[31] According to Keeney and Hatfield, solutions will ‘involve looking beyond the edge of effects to redesigning agriculture that will tighten up the N[itrogen] cycle’, and ‘policies will need to be developed that assure the farmer and the public that such measures will not cost productivity, and that a redesigned agriculture can provide for future food needs’.[32]

This research project aims to propose how to regulate to solve the problem of agricultural diffuse source pollution in Australia. While the agricultural nitrogen balances are high and in need of attention in many European countries as well, there have been some improvements over the past 25 years attributed to regulatory measures, such as the Nitrates Directive.[33] In Denmark, ‘a fairly strict regulatory regime has resulted in almost a 50 per cent reduction in nitrogen leaching since the mid-80s’.[34] For these reasons, this researcher will conduct a comparative analysis with the European Union legal frameworks with the purpose of exploring what Australia can learn from the EU by comparison and propose reforms based on these findings.

 

[1] William Howarth, ‘Diffuse Water Pollution and Diffuse Environmental Laws – Tackling Diffuse Water Pollution in England’ (2011) 23(1) Journal of Environmental Law 129, 130.

[2] Neil Gunningham and Darren Sinclair, ‘Policy instrument choice and diffuse source pollution’ (2005) 17 Journal of Environmental Law 51, 52; Cesare Dosi and Theodore Tomasi (eds), Nonpoint Source Pollution Regulation: Issues and Analysis (Kluwer Academic Publishers, 1994) ix, x.

[3] OECD, ‘Water Quality and Agriculture: Meeting the Policy Challenge’ (2012) 42.

[4] John A. Downing, Susan B. Watson and Edward McCauley, ‘Predicting Cyanobacteria Dominance in Lakes’ (2001) 58(10) Canadian Journal of Fisheries and Aquatic Sciences 1905, 1905.

[5] Cloé Garnache et al, ‘Solving the Phosphorus Pollution Puzzle: Synthesis and Directions for Future Research’ (2016) 98(5) American Journal of Agricultural Economics 1334, 1347, citing Anna M. Michalak et al, ‘Record-setting algal bloom in Lake Erie caused by agricultural and meteorological trends consistent with expected future conditions’ (2013) 110(16) Proceedings of the National Academy of Sciences of the United States 6448.

[6] Downing, Watson and McCauley, above n 4.

[7] Vladimir Novotny (ed), Nonpoint Pollution and Urban Stormwater Management (Technomic Publishing, 1995) 1.

[8] Gunningham and Sinclair, Policy instrument choice and diffuse source pollution, above n 2, 52.

[9] EEA, ‘The European environment — state and outlook 2015: synthesis report’ (2015) 64, 66; OECD, ‘Diffuse Pollution, Degraded Waters: Emerging Policy Solutions’ (2017) 3.

[10] Jon Brodie et al, 2013 Scientific Consensus Statement (27 August 2014) Reef Water Quality Protection Plan Secretariat <http://www.reefplan.qld.gov.au/about/scientific-consensus-statement/>; Australian Government and Queensland Government, ‘Reef 2050 Long-Term Sustainability Plan’ (Department of the Environment and Energy, Australian Government, 2015) 10, 24-25, 42 (‘Reef 2050 Long-Term Sustainability Plan’) <http://www.environment.gov.au/marine/gbr/publications/reef-2050-long-term-sustainability-plan>.

[11] Reef 2050 Long-Term Sustainability Plan, above n 10, app C.

[12] J. Ball et al, ‘Inland Waters – Australia State of the Environment Report 2000’ (Theme Report, CSIRO Publishing on behalf of the Department of teh Environment and Heritage, 2001) 57; State of the Environment 2011 Committee, ‘Australia State of the Environment 2011’ (Independent report to the Australian Government Minister for Sustainability, Environment, Water, Population and Communities, 2011) 231, 236; Robert M. Argent, ‘Australia state of the environment 2016: inland water’ (independent report to the Australian Government Minister for the Environment and Energy, Australian Government Department of the Environment and Energy, Canberra, 2017) <https://soe.environment.gov.au> 18, 78.

[13] Chris McLennan, ‘Water crisis worsens as Murray River blue-green algae spreads’, The Weekly Times (online) 8 March 2016 <http://www.weeklytimesnow.com.au/agribusiness/water/water-crisis-worsens-as-murray-river-bluegreen-algae-spreads/news-story/f9f6c3c1b3989eecccd13982d0e46a1d?utm_source=Weekly%20Times%20Now&utm_medium=email&utm_campaign=editorial>.

[14] The Peel-Yalgorup System, of which the Peel-Harvey Estuary is a part, was listed under the Convention on Wetlands of International Importance especially as Waterfowl Habitat 1971, opened for signature 2 February 1971, 996 UNTS 245 (entered into force 21 December 1975).

[15] Keith Bradby, Peel-Harvey – The Decline and Rescue of an Ecosystem (Greening the Catchment Taskforce, 1997) 147.

[16] Peel-Harvey Catchment Council, ‘Peel-Yalgorup System Ramsar Site Management Plan’ (Government of Western Australia, 2009) 24; Australian Government, ‘Australia’s National Programme of Action for the Protection of the Marine Environment from land-Based Activities – Case study 20: Peel-Harvey waterway’ (2006) <http://155.187.2.69/coasts/pollution/npa/pubs/peel-harvey.pdf>.

[17] Department of Water (WA), Vasse Geographe Strategy <http://www.water.wa.gov.au/water-topics/waterways/vasse-wonnerup-waterways-and-wetlands>.

[18] Andrew O’Connor, ‘Toxic algae bloom warning for Perth’s Canning river’, ABC News (online) 12 March 2016 <http://www.abc.net.au/news/2016-03-12/toxic-algae-bloom-warning-for-perth-river/7242420>; Linda Skates, ‘Swan and Canning Rivers: auditor-general’s report finds declining health in Perth waterways’, ABC News (online) 20 August 2014 <http://www.abc.net.au/news/2014-08-13/spotlight-on-the-health-of-the-swan-river/5668056>.

[19] Neil Gunningham and Darren Sinclair, ‘Non-point pollution, voluntarism and policy failure: lessons for the Swan-Canning’ (2004) 21 Environmental and Planning Law Journal 93, 94-95.

[20] Rebecca Nelson, ‘Regulating Nonpoint Source Pollution in the US: A Regulatory Theory Approach to Lessons and Research Paths for Australia’ (2010) 35 University of Western Australia Law Review 340, 349.

[21] See, eg, Gunningham and Sinclair, Non-point pollution, voluntarism and policy failure, above n 19.

[22] OECD, Diffuse Pollution, Degraded Waters, above n 9, 3.

[23] Gunningham and Sinclair, Non-point pollution, voluntarism and policy failure, above n 19.

[24] Gunningham and Sinclair, Policy instrument choice and diffuse source pollution, above n 2, 52; D.R. Keeney and J.L. Hatfield, ‘The Nitrogen Cycle, Historical Perspective, and Current and Potential Future Concerns’ in J.L. Hatfield and R.F. Follett (eds), Nitrogen in the Environment: Sources, Problems, and Management (Elsevier Science, 2008) 1, 7-10; Helle Tegner Anker, ‘Agricultural nitrate pollution – regulatory approaches in the EU and Denmark’ (2015) 2 Nordic Environmental Law Journal 7, 8; OECD, Water Quality and Agriculture, above n 3, 19.

[25] Gunningham and Sinclair, Non-point pollution, voluntarism and policy failure, above n 19, 95-96; Cesare Dosi and Tomasi, above n 2, x-xi.

[26] Gunningham and Sinclair, Non-point pollution, voluntarism and policy failure, above n 19, 95-96.

[27] D.R. Keeney and Hatfield, above n 24, 1-2.

[28] European Environment EEA, State and Outlook 2015, above n 9, 66; John Lucey, Nutrient losses from intensively grazed dairy pastures (1 May 2015) Department of Agriculture and Food <https://www.agric.wa.gov.au/pasture-management/nutrient-losses-intensively-grazed-dairy-pastures>.

[29] D.R. Keeney and Hatfield, above n 24, 1.

[30] Ibid 1.

[31] Nelson, above n 20, 341.

[32] D.R. Keeney and Hatfield, above n 24, 2.

[33] Council Directive 91/676/EEC of 12 December 1991 concerning the protection of waters against pollution caused by nitrates from agricultural sources [1991] OJ L 34/1; European Commission, Report from the Commission to the Council and the European Parliament on the implementation of Council Directive 91/676/EEC concerning the protection of waters against pollution caused by nitrates from agricultural sources based on Member States reports for the period 2008-2011, COM(2013) 683 final (2013); EEA, State and Outlook 2015, above n 9, 64, 66; 2-11. But see ibid 67.

[34] Anker, above n 24, 7.

Centre for Stories Provide Scott Ludlam’s Speech with EDOWA

This post was first published on www.centreforstories.com, hosts of EDOWA’s Dreaming Green event.

On June 6th, Centre for Stories hosted an event in collaboration with Environmental Defender’s Office WA (EDOWA) for World Environment Day 2017. ‘Dreaming Green: Envisioning a Sustainable Future Through Storytelling’ was a fundraiser event hoping to raise money for EDOWA’s crowdfunding campaign.

Our two speakers for the evening were Kate Kelly,  convenor of the Save Beeliar Wetlands campaign group, and Senator Scott Ludlam, Deputy Leader of the Australian Greens and the West Australian Greens representative in the Senate. Both speakers were kind enough to share with us a small part of their journey in environmental activism, delivering two inspiring talks.

We were lucky enough to have food and drinks supplied by a group of generous donors: Nail BrewingFlora & Fauna Northbridge, The Herdsman, and Talijancich Wines.

This is Senator Scott Ludlam’s talk as recorded on the evening. Thank you to everyone who was involved in this wonderful event.

EDOWA News June 2017

Welcome to the June edition of the EDOWA News.

We recently visited the Helena and Aurora Range with the Wildflower Society of WA as part of the work we have been doing with several conservation groups to protect this magnificent range from a mining project. You can read about this work here. We are next in the mining Warden’s Court on 30 June. Thank you to the Wilderness Society for creating this video of our trip here!

The end of the financial year is almost upon us, which means that it is time for us to ask existing EDOWA members to renew your membership. If you aren’t already an EDOWA member this is also a perfect time to become one. Membership forms can be found online here.

While we welcomed news from the State and Federal governments that some funding would be restored to the community legal sector, to date EDOWA has not yet been included in any funding package. We continue to encourage the Attorney General and other Ministers to restore some EDOWA funding to ensure our survival beyond the end of this year. This also highlights how vitally important it is for the community to show support by becoming members or donating to ensure there is an independent community legal centre giving voice to the environment.

Join EDOWA & Piddington Society for Land Use Seminar June 29

The Environmental Defender’s Office WA and Piddington Society invite you to attend our CPD Land Use Seminar which will explore developments in Planning, Native Title and Environmental Law.

The seminar is taking place on 29 at the Curtin University city campus Business School, located at 57 Murray Street, from 5.30pm until 9.00pm. Following the seminar will be refreshments and a live performance from award winning band Southern Edge featuring (among other luminaries) notorious Native Title and Land Access lawyers Michael Meegan and Graham Castledine.

Tickets are available via TryBooking.

EDOWA’s Land Use seminar features presentations from:

 

  • Declan Doherty – Environmental Defender’s Office WA: The new Biodiversity Conservation Act: Opportunities and areas for further reform (CA4)

 

  • Shannon Davis – Solomon Brothers: Trends and innovation in the property industry (CA2)

 

  • Mark Gregory – Castledine and Gregory: Planning law: Recent developments in planning and policy law (CA4)

 

  • Sophie Kilpatrick – Cross Country Native Title Services: Treaties in the native title landscape (CA2/CA3)

 

  • Robert Cunningham – Curtin University: Information Environmentalism: Theoretical lessons from the contemporary environmental movement when thinking about governance of information in the 21st century (CA1)

 

  • John Southalan – Resources Law Network: OECD Guidelines and Chinese Due Diligence Guidelines (CA2)

 

EDOWA extends special thanks to its sponsors Solomon Brothers, Curtin University, and Castledine & Gregory.

You can buy tickets via TryBooking.

Cost: $150
Early Bird Registration: $110 (closing soon)
Piddington Members: $80 (enter the code Pidd at checkout)
EDOWA Members: $80 (enter the code EDO at checkout)

Meet the EDO: Jonathon Davidson, Communications Officer

So you can get to know us better, we are introducing you to all the key players at EDOWA who make sure the office stays running.

Here is a brief chat with Jonathon Davidson, communications all-rounder.

How long have you been with EDO?
I have been working for EDOWA for the better part of six months since first discovering the opportunity in the beginning of 2017. I was lucky enough to learn about the gig through alternative radio station RTRFM 92.1, where EDOWA Principal Solicitor Declan Doherty was a board member in his youth!

What’s the best thing about working at EDOWA?
So often at EDOWA we hear things like, “I had no idea you guys existed – I am so glad I’ve found you!” The best thing about EDOWA is being able to offer legitimate assistance, sometimes to those people who have been more or less laughed out of every other forum. It is rewarding to enable the ‘small players’ to take on big groups.

What is the most challenging thing about working at EDO?
I come to EDOWA from a communications and journalism background, so having to quickly learn legalese has been a challenge. This can be difficult in internal communications materials, particularly with interstate entities, where common terms for widespread practices may not stay uniform. But I love the challenge, and have only refined my skill.

Favourite environmental law case? 
Because I come from the underworld of media and comms, I am unfamiliar with case law . What I can offer is my favourite environmental investigation, conducted by The Bureau of Investigative Journalism, who found a series of lakes in India were the collective dumping ground of dozens of pharmaceutical companies, which is now breeding organic superbugs resistant to all widely used antibiotics in India. I am also immensely interested in the toxicity of Dolhpins in the Swan River.

Accessing Environmental Justice Seminar

Introduction

On 11 May 2017 EDOWA hosted the Accessing Environmental Justice seminar at Flux in Perth. The seminar marked the launch of our Justice for our Environment crowdfunding campaign. We would like to thank our guest speakers former High Court Chief Justice the Hon. Robert French AC, Professor Carmen Lawrence and Professor John Bailey who all delivered engaging and thought provoking presentations. Photographs of the event can be found on our Facebook page.

Please watch our recording of the event below 

Please find below transcript of the presentation given by Carmen Lawrence. 

EDOWA Carmen Lawrence