Category: Articles

April Bulletin 2018

Read on below to view the latest WA Environmental news, opportunities for public participation on a number of development proposals and regulatory proposals affecting the state and national environment, and more!

Fracking Inquiry EDOWA Submission March 19

On 19 March 2018, EDOWA lodged a detailed submission to the Independent Scientific Panel Inquiry into Hydraulic Fracture Stimulation in Western Australia 2017 (Fracking Inquiry). Our submission focused on the third item of the Fracking Inquiry’s Terms of Reference: regulatory mechanisms that may be employed to mitigate or minimise risks to an acceptable level. It outlines the legal and regulatory regime as it would apply to fracking activities in Western Australia under the Petroleum and Geothermal Energy Resources Act 1967 (WA) and the Environmental Protection Act 1986 (WA), highlights the inadequacy and issues associated with these regimes, and provides 41 recommendations for improvement. In making this submission we made it clear that we did not endorse fracking (even if the regulatory regime was improved), and that the State should be focusing on investing in renewable energy and reducing greenhouse gas emissions.

CASE STUDY – POWDER RIVER BASIN, USA. M. PAPAVASSILIOU & R. HAMILTON

 

WildEarth Guardians; Sierra Club v United States Bureau of Land Management, and Wyoming Mining Association; BTU Western Resources, Inc.; State of Wyoming; National Mining Association, 15-8109 1 (10th Cir, 2017).

CASE STUDY – MARA PAPAVASSILIOU AND RUBY HAMILTON

 

SUMMARY

In an appeal against a decision of the Federal District Court, the US 10th Circuit Court has found that the US Bureau of Land Management’s decision to approve four mining leases in the Powder River Basin region in Wyoming contravened the National Environmental Policy Act. The Court said that because the Bureau had based its decision on an “arbitrary and capricious” analysis of the greenhouse gas emissions that would result from the combustion of coal extracted from the mines, it had failed to provide “adequate disclosure to allow public participation” in a government decision.

 

FACTS

Background

In 2010, the US Bureau of Land Management (BLM) approved four coal leases to extend the life of two coal mines near the town of Wright, in the Powder River Basin region of Wyoming. The Powder River Basin region is the single largest contributor to United States’ domestic coal production. The subject mines account for approximately 19.7% of the United States’ annual domestic coal production, and contain approximately two billion tons of recoverable coal. The mines were set to cease operation after previously leased reserves were depleted.

Mining lease approval regulations

Under the Federal Land Policy and Management Act and the BLM’s own regulations, the BLM is responsible for approving mining infrastructure and issuing mining leases. Pursuant to the National Environmental Policy Act (NEPA), the BLM must prepare Environmental Impact Statements for mining leases. The National Environment Policy Act requires the BLM to compare the impact of its preferred action to a ‘no action’ alternative, to illustrate the environmental impact of the preferred action. This ‘alternatives analysis’ is the “heart of” the Environmental Impact Statement.  

The Final Environmental Impact Statement

The BLM published its Final Environmental Impact Statement for the leases in July 2010.The Final Environmental Impact Statement contained a number of material, uncontested facts, including;

  • anthropogenic carbon dioxide emissions contribute to climate change;
  • the quantity of the coal proposed to be mined in the leases would result in approximately 382 million tons of annual carbon dioxide emissions from electricity generation, the equivalent of about 6% of the United States’ total 2008 emissions; and
  • a shift to non-coal energy sources would result in less carbon dioxide being emitted.

The Final Environmental Impact Statement predicted that demand for coal in the US would grow during the life of the leases, and that “all forms of electric generation would grow at a proportional rate to meet forecast electric demand”. The Final Environmental Impact Statement concluded that because overall demand for coal was predicted to increase, and that all forms of electric generation would grow at a proportional rate, a refusal to grant the leases (and therefore constrain supply from the Wright Area) would have no consequential impact on demand for coal.

Following the Final Environmental Impact Statement, the BLM issued a Record of Decision for each of the four tracts, deciding to offer them for lease.

In 2012, WildEarth Guardians and the Sierra Club challenged the four Records of Decision and the Final Environmental Impact Statement in the Federal District Court, objecting to the BLM’s no action alternative analysis that a refusal to grant the leases would not result in lower national carbon dioxide emissions. The District Court dismissed the challenge, and determined that the BLM’s analysis was reasonable. The Plaintiffs appealed this issue in the 10th Circuit Court.

 

DECISION

The Court found the BLM’s decision to approve the leases was “arbitrary and capricious”, and therefore contravened the National Environmental Policy Act.

In the National Environmental Policy Act context, an agency’s Environmental Impact Statement is arbitrary and capricious if it fails to take a “hard look” at the environmental effects of the alternatives before it. This standard focuses on “the rationality of an agency’s decision making process rather than on the rationality of the actual decision”, a principle that also governs judicial review of executive action in Australia.

Irrational, “arbitrary and capricious”, and unsupported by data

The BLM’s decision was determined to be “arbitrary and capricious” as it was based on the “irrational and unsupported” assumption that there would be no “real world” difference between issuing the leases and refusing to do so. The BLM had argued that the coal that would be mined from the lease areas could be “perfectly substituted” by coal mined from another location, and that there would therefore be no overall effect on greenhouse gas emissions if the leases were not granted. This conclusion presumed that reduced supply of coal from the Wright Area would have no impact on coal price, or that an increase in coal price would not affect demand for coal, or decrease coal’s share of the energy mix.

The Court determined that this “perfect substitution” argument was not supported in the Final Environmental Impact Statement by hard data. The BLM failed to point to any information “indicating that the national coal deficit of 230 million tons per year incurred under the no action alternative could be easily filled from elsewhere, or at a comparable price”. The Court noted the Final Environmental Impact Statement’s principle reliance on the Energy Information Administration’s 2008 Energy Outlook Report, which predicted, in sections not referenced in the Final Environmental Impact Statement, that overall US coal demand would decline in response to increased coal price.

The Court stated that though the mere presence of evidence contrary to an agency’s conclusion would not invalidate the agency’s decisions, and though a “strong presumption” of deference towards agencies’ decisions exists, the assumption in question “nevertheless [fell] below the required level of data necessary to…permit a reasoned choice between the [alternatives]”. The Court found that the BLM did not ignore the effects of coal consumption, but rather “analyzed them irrationally”.

The Court iterated that even if it could conclude that the BLM had enough data before it to choose between the preferred and no action alternatives, it would still conclude that the perfect substitution assumption was arbitrary and capricious because the assumption underpinning the no action alternative itself was irrational. The Court accepted the argument that this assumption “[ignored] basic supply and demand principles”. The Court asserted that an “agency may choose the more environmentally harmful alternative, provided its reasons for doing so are disclosed and rational”. However it found there had been no “reasonable, good faith, objective presentation” of the topics required in an Environmental Impact Statement by the National Environmental Policy Act.

Remedy

The Court did not vacate the leases. The Court declined to do so because:

  • the Plaintiffs’ challenge rested on a “fairly narrow” issue;
  • the leases were already being mined; and
  • the parties did not address what would happen to the leases which had already been issued.

The Court noted that the District Court could choose to vacate the entire Final Environmental Impact Statement and Records of Decision, or could “fashion some narrower form of injunctive relief”. The Court reversed the District Court’s finding that the BLM’s actions were reasonable, and remanded the BLM to revise its Environmental Impact Statements and Records of Decision.

 

COMMENTARY

The decision that the National Environmental Policy Act had been contravened was not expected from the typically conservative 10th Circuit Court, which is also now the highest US court to rule on accounting for climate change impacts. The decision affirmed that US government agencies must reasonably and objectively take climate change impacts into account when making decisions governed by the National Environmental Policy Act.

The Court’s characterisation of the Plaintiff’s challenge as “fairly narrow” is, with respect, disappointing, since this characterisation, and the fact that mining in the lease areas had already commenced, underpinned the Court’s decision to not vacate the leases.  This characterisation could be questioned, since the Court itself described the inclusion of the no action alternative in the Environmental Impact Statement as “the heart of” the Environmental Impact Statement. The fundamental purpose of the National Environmental Policy Act was described by the Court as being “[to prevent] uninformed agency decisions and [to provide] adequate disclosure to allow public participation in those decisions”. In addition, the Court found that the BLM’s erroneous perfect substitution assumption was “key to the ultimate decision”. Failure to meet the basic requirements of the ‘no action alternative’ of the Environmental Impact Statement would therefore suggest that the National Environmental Policy Act had been substantially, rather than narrowly, contravened. This was stated by the Court when it asserted that the Final Environmental Impact Statement’s “[failure] to adequately distinguish between [the alternatives] defeated NEPA’s purpose”.  

Whether or not the leases remain in force will be decided by the District Court later in 2018.

In Australia, decisions by Ministers and government agencies often concern mines and industrial developments with significant greenhouse gas emissions implications, like the coal mines in this case. Australian courts have been slow to recognise climate change and the contribution of individual operations to it. This has been problematic for challenges such as that conducted by the Australian Conservation Foundation against the approvals for the Adani Carmichael coal mine (Australian Conservation Foundation Incorporated v Minister for the Environment and Energy [2016] FCA 1042).

Of course, this US case is not a legal authority in Australia for requiring government decision-makers to consider the climate change impacts of individual operations’ emissions. However, given the similarity of some legal principles in Australian and US administrative law, this case could provide valuable support for future arguments by advocates in the fight against climate change.

EDOWA receives Generous Donation from Innovative Students

Over the past few months, a group, consisting of Rossmoyne SHS students Michael Lee, Charlotte Kirke, Chaki Ramesh and Rafid Hasan, have reinvented the second hand shopping experience for a social innovation competition. With the generosity of Riverton library, they were able to test our ideas at the library’s courtyard.

Through surveys of local communities, the students saw public dissatisfaction with low accessibility, fatigued appearance, and questionable cleanliness. In response, their team worked to incorporate many technological and policy innovations to second hand stores to boost the circular economy.

Their store, has thus far proved a successful business venture, promoting an ethical shopping experience, allowing us to get feedbacks on our ideas, whilst raising over $800 for the Environmental Defender’s Office of WA in a few short days. Thank you for your donation!

Their team has entered the Diamond Challenge under the Social Innovation category, an international competition for high school entrepreneurs. We wish them all the best and hope that The Freers qualifies for the next round.

 

LAW GRADUATE OPPORTUNITY—PRACTICAL LEGAL TRAINING PLACEMENT

The Environmental Defender’s Office WA (EDOWA) 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 February 2018.

If you are interested in joining EDOWA’s team, please email your cover letter, CV and academic transcript to Declan Doherty at ddoherty@edowa.org.au by 22 December 2017.

Gondwana Link Workshop

South Western Australia has been identified as one of 35 of the World’s major biodiversity hotspots that are currently threatened by habitat loss and degradation, with our biodiversity being in decline. This is not just due to the changing climate, but is also being caused by human activities such as land clearing, land fragmentation, invasive species and unsuitable use and management of our natural resources. With that in mind, EDOWA has been working with Gondwana Link, on a law reform project that is reviewing existing conservation and biodiversity laws, applicable in Australia’s south-west, for the purposes of identifying law reform opportunities to improve a large scale biodiversity outcomes. In addition to law reform recommendations, other outcomes of the project will include the launch of new and updated EDOWA factsheets relevant to biodiversity conservation.

As part of the Gondwana Link project, the EDOWA hosted a targeted focus session in Albany on 12 October 2017. Participants on the day included local landholders, members of the Western Australia Landcare Network, Greening Australia, Conservation Council of WA, and representatives from DBCA, Gondwana Link and the EDOWA.

The focus session aimed to further inform the project on some of the constraints, barriers and opportunities that stakeholders are facing in their efforts to achieve conservation based outcomes in the south west. Key themes of the day were habitat management and protection, invasive species management, land tenure challenges and fire management.

The day was a great success, with much passion and knowledge ensuring that the project has a great understanding to move forward with. The learnings from this session will now become the focus of the upcoming legal audit, which is central to how we identify and utilise law reform opportunities to improve biodiversity outcomes.

 

Carbon Budgets Seminar Summary

Carbon Budgets Seminar

Thank you to everyone who attended our Carbon Budgets Seminar on 10 October 2017. In particular we would like to thank our speakers, David Ritter (Greenpeace), Professor John Chandler (UWA) and Michael Bennett (UWA / EDOWA) for their interesting presentations, which certainly generated a lot of debate and discussion at the end. In case you missed this event, we have a summary of the impact of carbon budgets below prepared by Marc Allen, Technical Director from Engeco.

THE CARBON BUDGET

In recent years, discussions around greenhouse gas (GHG) management and action on climate change have featured carbon budgets as a core concept. The concept of the carbon budget is relatively simple, it’s the total amount of greenhouse gases we can emit that will give us a likely chance of meeting our climate targets. In the Intergovernmental Panel on Climate Change (IPCC) fifth assessment report (AR5), the carbon budget was quantified for a number of scenarios showing the probability of certain temperature rises by the year 2100. The full set of scenarios is shown below:

In order to have a 66% probability of limiting temperature rise to 2 degrees by 2100, the global carbon budget (from 1870) is estimated to be 2,900 Gt of CO2-e (2,900,000,000,000 tonnes.) [IPCC AR5 Synthesis Report]. This sounds like a lot but it does include that which was emitted between 1870 and today. (Note – the 66% isn’t a true probability, rather it is the carbon budget that corresponds to 66% of model outputs resulting in temperature rise of less than 2 degrees by 2100. A subtle difference but worth acknowledging.)

The lower part of the table above shows that the carbon budget from 2011 is 1,000 Gt of CO2-e, which implies that estimated total GHG emissions between 1870 and 2011 were 1,900 Gt of CO2-e. According to Carbon Brief, who provide an update on performance to the carbon budget annually, global emissions between 2011 and 2016 consumed 238 Gt of this budget – which leaves 762 Gt CO2-e. Annual anthropogenic emissions (fuel combustion, cement, land use change etc.) are estimated at approximately 40 Gt CO2-e currently. This means that there is approximately 20 years of available budget left at current rates.

Now the IPCC report was released prior to the events at COP21 in 2015. This is where, via the Paris Agreement, the world agreed to limit temperature rise to “well below 2 degrees C … and to pursue efforts to limit the temperature increase to 1.5 degrees”. The IPCC also provided detail on carbon provided detail on carbon budgets for 1.5 degrees Celsius. The Synthesis report of AR5 indicated that the budget for a 66% chance of 1.5 degrees temperature rise by 2100 is 400 Gt of CO2-e from 2011. This would then leave just 4 years to decarbonise fully.

TRAJECTORIES OF EMISSIONS REDUCTIONS

So clearly the concept of a carbon budget is important. It appears that the growth in global emissions has plateaued as growth in emissions has greatly reduced for the last three years in a row – driven in part by a move away from coal as a primary energy source in both China and the US, the world’s two largest emitters in absolute terms. This provides some hope that the carbon budget might be met – for two degrees at least.

Equally important however, is the trajectory taken to get to the budget. These trajectories can be seen as the emissions reductions pledges made by countries as part of their Nationally Determined Contributions (NDC) under the Paris Agreement. Given the budget is just that, a limit on the total amount of emissions allowable, the emissions reduction trajectories set how quickly we can get there. Earlier action can be considered to be more cost effective as delay means that more steep emissions reductions will be required, which will be more of a shock on the global economy. There may then come a time where the rate of emissions reduction required is so steep that emissions removal is required.

Any technology to remove carbon dioxide from the atmosphere once it has dispersed to ~400 parts per million is likely to be very expensive, and negative emissions concepts such as bio-energy carbon capture and storage have not yet been proven at scale. Given the global carbon budget to achieve 1.5 degrees is already quite tight, it is probable that CO2 removal will be a necessity for this scenario. A number of 2 degree scenarios also shows negative emissions in the latter half of the century, given expected/assumed emissions reduction trajectories. This is an acknowledgement of the fact that a total decarbonisation within 20 years is considered unlikely. From a carbon budget point of view, current thinking is that there will be an element of overshoot and then negative emissions at a later time.

The IPCC has published detail on Representative Concentration Pathways (RCPs), which are different paths that emissions can take, leading to different temperature rise outcomes. RCP 2.6 corresponds to a temperature rise of less than 2 degrees by 2100 (the 2.6 refers to radiative forcing not temperature), though still includes a degree of negative emissions between 2050 and 2100. A new set of pathways is being developed by the IPCC and will form part of a special report that is intended to be released in September 2018 and explores 1.5 degree temperature rises.

ACTIONS THAT CAN BE TAKEN

Companies should understand what different scenarios of climate change action mean for their bottom line. When planning scenarios for developing a company’s response to climate change risks, trajectories for emissions reductions must be looked at in conjunction with carbon budgets. as stakeholders are increasingly looking at both when judging future performance of a company. The trajectories can provide insight into the expected level of price signal applied to GHG emissions and into changing commodity prices and how rapidly they may move relative to now. The budget provides detail on whether expected trajectories can meet overall climate targets.

Another action that can be taken is to consider setting science based targets for their organisations, and using their internal analysis to determine their targets to influence their supply chain. Science based targets look at climate science and the effort required to meet global temperature targets to generate company based targets – which are then publicly disclosed. It is important to explore emissions across the whole value chain of the company including suppliers and the use of products to determine total impacts on the company from climate action and to encourage science based targets for key providers in the supply chain.

We thank the sponsor of the Carbon Budgets seminar, Engeco for providing this summary.