Category: Articles

Submission to Senate Inquiry into Australia’s Faunal Extinction Crisis

EDOWA has today lodged a submission to the Senate Inquiry into Australia’s Faunal Extinction Crisis. The Inquiry is conducted by the Commonwealth Senate Standing Committees on Environment and Communications.

Our submission, prepared jointly with the Conservation Council of WA, uses the Yeelirrie uranium project as a case study to highlight the urgent need for law reform to address the extinction crisis. This submission is in addition to an earlier  submission by the EDOs of Australia, lodged in 2018.

After working on the recent litigation challenging the State approval of the Yeelirrie project, and investigating the Commonwealth approval, we believe our environmental protection legislation is not meeting community expectations and preventing extinction.

In our submission we argue that the project approvals illustrate gaps and weaknesses in current law. Law reform should extend to a new federal environmental protection statute, and a national Environmental Protection Authority – and in the short term our current legislation should be amended to ensure that Ministers cannot approve a project in the knowledge it will cause extinction, and against accepted scientific advice.

You can read the EDOWA/CCWA submission in full below.

If you would like to help EDOWA fight the extinction crisis, head to our crowdfunder to donate before it closes next Monday!

Law Graduate Opportunity – Practical Legal Training Placement at EDOWA

The Environmental Defender’s Office WA invites dedicated and self-motivated law graduates to apply for its Practical Legal Training placement.

This position is unpaid and three days per week. Ideally, candidates will have a demonstrated interest in environmental law or a related field.

As EDOWA has limited resources, this position requires an enthusiastic and diligent individual who is capable of working both independently and as part of a dedicated team.
 
Our PLT placement provides a unique experience due to EDOWA being Western Australia’s only environmental community legal centre. As a law graduate at EDOWA, you will undertake work that is varied, hands on and challenging in a friendly and vibrant work environment. In particular, you will be responsible for:
• Conducting legal research;
• Drafting advices to clients;
• Preparing and maintaining client files;
• Attending court (Wardens Court, Magistrates Court, Supreme Court) as required;
• Meeting with clients;
• Participating in community outreach seminars and workshops.
 
By the end of this placement, you will have developed high-level legal skills and be ready to save the world, one tree at a time!
 
The ideal start date for this placement would be from August 2019.
 
If you are interested in joining EDOWA’s team, please email your cover letter, CV and academic transcript to Tim Macknay at tmacknay@edowa.org.au by 22 July 2019.

EDOWA Launches ‘Against Extinction’ Crowdfunder Campaign!

The Environmental Defender’s Office WA (Inc) is excited to announce the official launch of its new fundraising campaign, ‘Against Extinction‘. This campaign is focused on fighting the extinction crisis and protecting WA’s unique native flora and fauna.

Help EDOWA fight the extinction crisis!

Worldwide, a recent report by the United Nations warns that more than one million species are under threat of extinction. If extinction rates continue to accelerate, it will have serious and unpredictable impacts  – not only on nature, but on humanity as well. This extinction crisis is occurring primarily as a result of ecological exploitation and climate change and has become a hot topic internationally following the recent Extinction Rebellion protests in the UK and Australia.

The United Nations report highlights that Australia has the highest rate of mammal extinctions in the world and that vital changes are required to restore and protect nature.

The extinction crisis is also a live issue here in Western Australia, where our well-loved and iconic endangered and threatened species such as the Carnaby’s cockatoo, quokka and numbat are under serious and immediate threat.

But there is hope – while Australia has a terrible extinction record to date, the continent is also home to some of the last untouched landscapes on the planet. We need to work together to reduce our greenhouse gas emissions, protect our unique forests and native vegetation, and prevent the development of ecologically destructive industries.

Donations are crucial for the survival of both EDOWA and WA’s unique species. We are aiming to raise $25,000 in the next 8 weeks to enable us to continue fighting the extinction crisis by working hard towards:

  • The effective regulation and reduction of Western Australia’s greenhouse gas emissions;
  • The protection of species from ecologically destructive developments such as the Yeelirrie uranium mine which risks the extinction of 12 unique subterranean fauna species;
  • The preservation of Western Australia’s pristine and unique forests and biodiversity from destructive clearing and logging.

Please donate today.

Thank you for supporting EDOWA, the State’s only legal voice for the environment. Your donations are greatly appreciated, and will help fight the extinction crisis here in Western Australia!

Keep an eye out over the coming weeks for more details about our closing event on 8 August.

Fact Sheet on EPA Greenhouse Gas Assessment Guidance

On 14 March 2019 the Western Australian Environmental Protection Authority (EPA) withdrew its revised Environmental Factor Guideline and Technical Guidance on Mitigating Greenhouse Gas Emissions (GHG Assessment Guidance) published on 7 March 2019 in order to undertake further consultation. The draft GHG Assessment Guidance and a Background Paper were released on 10 June 2019 for 12 weeks of public consultation ending on 2 September 2019.

EDOWA has published a Q&A style fact sheet that outlines the legislative framework that applies to the EPA’s draft GHG Assessment Guidance and the content of these documents.

The aim of this fact sheet is to inform public submissions and correct some misconceptions in the media surrounding the function and validity of the draft GHG Assessment Guidance. EDOWA encourages interested members of the public to visit the EPA’s consultation hub to make submissions.

 

2040 Fundraiser Film Screening

Join EDOWA at a special screening of the new documentary “2040” from award-winning director Damon Gameau. An open letter to the director’s 4-year-old daughter, 2040 explores a hypothetical future if existing solutions to environmental issues are embraced now. Told through a compelling mix of traditional documentary and “fact-based dreaming”, this film offers a hopeful perspective on addressing climate change.

Before the film screens you can hear from our new Principal Solicitor, Tim Macknay, on EDOWA’s climate change work. Proceeds will help us continue to hold WA’s biggest polluters to account and strengthen legal and policy frameworks.

You can watch the trailer below, and make sure to purchase tickets here – tickets are $25 ($9 goes to EDOWA). We look forward to seeing you!

 

When: Sunday, 9 June 2019 (Tim will speak at 6.00pm, film screens at 6.30pm)

Where: Luna on SX (13 Essex Street, Fremantle)

RSVP to the Facebook event here.

 

 

Meet our new Principal Solicitor Tim Macknay

 

We are excited to welcome Tim Macknay as the new Principal Solicitor of EDOWA.

Born and bred in Western Australia, Tim has worked in environmental law and policy since 2006. This includes work for industry in private practice, government work and pro bono work for environmental NGOs and community legal centres. Before commencing at EDOWA, Tim had a senior legal role with the Department of Water and Environmental Regulation.

Tim has long been an admirer of EDOWA’s work and is delighted to have the opportunity to take a more direct role in addressing the climate crisis and in protecting WA’s irreplaceable forests, wildlife and coastlines.

Welcome Tim!

Case Note: Gloucester Resources Limited v Minister for Planning [2019] NSWLEC 7

The Rocky Hill case has been heralded as a landmark decision for the recognition of climate change in relation to environmental approvals and decision-making. In this case note, EDOWA solicitors Ruby Hamilton and Sarah Flynne examine the key aspects of the case and what it could mean for WA.

A summary version of the case note is below, and you can  download the full note here.

We note that the proponent has lodged a notice of intention to appeal against the decision.

1. BACKGROUND

On 8 February 2019, the New South Wales Land and Environment Court (NSWLEC) handed down a decision relating to an application for consent to develop a coal mine in the Gloucester Valley, a rural-residential area. The proposal included open-cut pits and vegetation clearing with planned recovery of 21 million tonnes of metallurgical coal (used for producing steel, distinct from thermal coal which is burned to generate electricity). The Planning Assessment Commission (delegated by the Minister for Planning) refused the application for consent and the proponent, Gloucester Resources Ltd, appealed this decision.

The NSWLEC decision, by Chief Judge Preston, dismissed the mine proponent’s appeal, confirming the decision to refuse consent. Preston CJ summarised the reasons for this decision as follows:

The mine will have significant adverse impacts on the visual amenity and rural and scenic character of the valley, significant adverse social impacts on the community and particular demographic groups in the area, and significant impacts on the existing, approved and likely preferred uses of land in the vicinity of the mine.

The construction and operation of the mine, and the transportation and combustion of the coal from the mine, will result in the emission of greenhouse gases, which will contribute to climate change.

These are direct and indirect impacts of the mine. The costs of this open cut coal mine, exploiting the coal resource at this location in a scenic valley close to town, exceed the benefits of the mine, which are primarily economic and social. Development consent should be refused.

(see [8], line breaks and emphasis added)

The proceedings

This case was a merits review proceeding in which the NSWLEC “stands in the shoes” of the original decision-maker in relation to the application, and re-makes that decision. Its decision stands as though it was made by the Minister or the Minister’s delegate, rather than as a Court ruling on legal validity or interpretation.

2. THE DECISION

Preston CJ undertook a comprehensive review of the positive and negative impacts of the mine, using a cost-benefit analysis to determine that the approval should be refused. In considering the direct and indirect impacts of the mine, Preston CJ generally found that the social and economic benefits would be short-term and minor, and would be outweighed by potentially major long-term adverse social, environmental and economic impacts. The “distributive inequity” of the benefits primarily accruing to the proponent and the costs impacting on the community was a key finding in the decision.

In concluding the decision, Preston CJ held that:

an open cut coal mine in this part of the Gloucester valley would be in the wrong place at the wrong time. Wrong place because an open cut coal mine in this scenic and cultural landscape, proximate to many people’s homes and farms, will cause significant planning, amenity, visual and social impacts. Wrong time because the GHG emissions of the coal mine and its coal product will increase global total concentrations of GHGs at a time when what is now urgently needed, in order to meet generally agreed climate targets, is a rapid and deep decrease in GHG emissions. These dire consequences should be avoided.

(see [699])

Climate change findings

One of the key impacts considered in the case was greenhouse gas (GHG) emissions and climate change. Preston CJ confirmed that the principles of ecologically sustainable development (ESD) require consideration of climate change impacts and made the following key findings in relation to climate change:

  • increased GHG concentrations in the atmosphere have already affected, and will continue to affect, the climate system;
  • a rapid and deep decrease in GHG emissions is urgently needed in order to meet generally agreed climate targets;
  • approval of the project, which will increase GHG emissions, is likely to run counter to actions that are required to achieve rapid reductions in GHG emissions necessary for net zero emissions and limiting temperature rise to 1.5-2ºC;
  • Scope 3 and downstream GHG emissions are relevant considerations in the determination and assessment of proposals;
  • the mine’s direct and indirect GHG emissions will contribute cumulatively to global GHGe and climate impacts;
  • mitigation and offset actions must be specific and certain to justify approval of projects with GHG emissions; and
  • assumptions of market substitution and carbon leakage are unproven.

Preston CJ emphasised that each proposal must be assessed on its merits and this assessment must involve consideration of GHG emissions and climate impacts.

3. SIGNIFICANCE OF DECISION FOR WESTERN AUSTRALIA

While this decision of the NSWLEC is encouraging in terms of official recognition and application of climate change science, it is important to bear in mind the nature of the decision and its status in relation to WA’s legislative and regulatory framework.

Nature of the decision

The NSWLEC has the jurisdiction to conduct merits review appeals and judicial review proceedings. WA does not have an environmental court or tribunal with similar jurisdiction, with WA courts only having jurisdiction to hear judicial review proceedings concerning legal questions. As this case is a merits review proceeding in which the NSWLEC was sitting as an administrative tribunal, it does not create a binding precedent for courts in WA.

Further, New South Wales’ environmental protection legislative and policy framework under the Environmental Planning and Assessment Act 1979 (NSW) (NSW Act) differs to the regime established in the Environmental Protection Act 1986 (WA) (EP Act). The NSW Act integrates planning and environmental law and expressly requires the public interest to be considered in assessing a proposal’s likely environmental, social and economic impacts. The ESD principles included in the NSW legislation are identical to those listed in WA legislation, except that the WA legislation also includes the principle of waste minimisation. The shared ESD principles include:

  • the precautionary principle;
  • the principles of inter-generational equity;
  • the principle of conservation of biological diversity and ecological integrity; and
  • improved valuation, pricing and incentive mechanisms.

Application to Western Australia

Despite the above, the Court’s consideration of the ESD principles and findings in relation to GHG emissions and climate change impacts is likely to be influential for decision-makers and courts in WA. Preston CJ’s reasoning and findings are particularly applicable to two key decision making processes in WA – environmental impact assessments of significant proposals by the Environmental Protection Authority (EPA), and the Minister for Environment’s role in approving and conditioning those proposals.

Environmental Protection Authority – assessment
In conducting environmental impact assessments in accordance with its objectives to protect the environment and prevent environmental harm in s 15 of the EP Act, the EPA is required to have regard to the ESD principles included as the central objects of the EP Act in s 4A. This case confirms that the principles of ESD require consideration of the impact of a development on climate change. Further, much of the case turned upon an assessment of the “direct and indirect impacts” of the mine proposal – an assessment which is analogous to an EPA environmental impact assessment against ‘key environmental factors’ under s 44(2) of the EP Act. The case highlights the need for such assessment to consider a proposal’s GHG emissions, its contribution to climate change, and impacts on people and the environment on a local and global scale.  Accordingly, this case confirms that the EPA is required to comprehensively consider GHG emissions and climate impacts in assessing and reporting on the environmental impacts of significant proposals under the EP Act.

Minister for Environment – approvals
In WA the Minister for Environment often exercises a similar function to the NSW Minister for Planning in this case. As the decision-maker in environmental approvals, the Minister for Environment may impose conditions on any approval that are directed to the control of environmental harm. This case makes clear that GHG emissions and climate change impacts are relevant considerations in exercising this function, being scientifically established as contributing to environmental harm. A failure by the Minister to consider these impacts may lead to a decision being considered unreasonable.

If administrative decision-makers in WA accept the findings from the case and carry out their roles accordingly, they should ensure that new projects and any potential GHG emissions remain within the carbon budget. As Preston CJ accepted in the case, with carbon budgets already exhausted by existing projects, fossil fuel developments must be phased out and any new projects must demonstrate that they will achieve net zero emissions through avoiding/minimising GHG emissions and, to the extent that they cannot achieve this, identify specific and concrete offsets.

4. EPA GHG GUIDANCE

The EPA’s guidance on GHG emissions released on 7 March 2019 established a separate environmental factor guideline and technical guidance for GHG emissions and confirmed that the EPA is obliged to consider the effect of proposals with the potential to increase WA’s GHG emissions. This guidance was consistent with the findings in Gloucester and required proponents of projects subject to environmental impact assessment under the EP Act to describe:

  • scope 1 and scope 2 GHG emissions per annum and over the life of the proposal;
  • scope 3 emissions, where there is an established link between the proposal’s activity and these emissions and they will be relatively large;
  • proposed measures to avoid emissions through best practice design and benchmarking;
  • proposed continuous improvement measures to reduce emissions over the life of the proposal; and
  • proposed measures to offset all residual (net) direct emissions associated with the proposal that meet the offset integrity principles and are based on clear, enforceable and accountable methods.

This guidance was withdrawn on 14 March 2019 for further consultation.