Who needs a Climate Trigger?
What is Australia’s current National Environment Law?
Australia’s main national environment law is the Environment Protection and Biodiversity Conservation Act 1999 or EPBC Act.1
The EPBC Act was drafted in the late 1990s by the Howard government’s Environment Minister, Senator Robert Hill.
The Act defines nine matters of national environmental significance2 that would trigger an environmental assessment, but not the most obvious matter of all, climate change.
Figure 1: Extract from EPBC 1999 Act listing the nine matters covered by the Act
An Environmental Assessment could be triggered by any of the nine matters in Figure 1. However, the Federal Environment Minister cannot consider matters that fall outside this federal legislation.
So what is Missing?
At the time of drafting the Act, a ‘Climate Trigger’ was omitted, but was the subject of a subsequent discussion paper that ultimately failed to produce a result.
That is why the government has no option but to defend its conditional support for fossil fuel projects:3
“The Albanese government will continue to support new fossil fuel projects so long as they 'stack up' from an economic and environmental perspective.”
Federal Resources Minister Madeline King MP
There are about 114 new coal and gas projects headed to the environment minister’s desk for approval, all of which could receive approval if they “stack up” against the nine triggers in the existing EPBC Act.
Climate Trigger in the Morrison era
On 27 February 2020, the Senate referred Greens’ Senator Sarah Hanson-Young’s Environment Protection and Biodiversity Conservation Amendment (Climate Trigger) Bill 2020 to the Senate Environment and Communications Legislation Committee for inquiry and report by 14 October 2020.4
The reporting date for the inquiry received eight deferments, with the last deferment extended out to 2 August 2022. However, the federal election on 21 May 2022 intervened.
Climate Trigger in the Albo era
With the election of a new government, the 2020 EPBC Amendment Bill lapsed and was replaced by a new Bill, the Environment Protection and Biodiversity Conservation Amendment (Climate Trigger) Bill 2022 [No. 2].5
What will the “Climate Trigger” Bill do?
The purpose of the Bill is to amend the EPBC Act, as described in Figure 2, to add a tenth matter of national environmental significance, that is to contribute to meeting Australia’s obligations under the Climate Change Conventions.
Figure 2: Purpose of Amendment to EPBC Act is to meet Australia’s NDC
In Summary, the Bill sets out to
Figure 3: Summary of the amendments proposed in the Environment Protection and Biodiversity Conservation Amendment (Climate Trigger) Bill 2022 [No. 2]
In pursuit of that objective, the Amendment requires the Climate Change Authority to determine a “Carbon Budget” to 2050.
Figure 4: Requirement for the Climate Change Authority to determine the National Carbon Budget to 2050
The Bill also identifies two levels of emissions that will require specific ministerial treatment.
The first concerns actions that will generate more than 100,000 tonnes of GHGs per annum – classified as “prohibited impact emissions”.
The second concerns actions that will generate more than 25,000 tonnes of GHGs per annum, but less than 100,000 tpa – classified as “significant emissions”.
Figure 5: Definitions of “Prohibited” and “Significant” impact on emissions
The Bill then provides direction for the Minister when considering actions with “prohibited” or “significant” impact on emissions.
Figure 6: Definition of ministerial response to “prohibited” and “significant” impact on emissions actions
So where is the Bill now?
On 8 September 2022 the Senate referred the Environment Protection and Biodiversity Conservation Amendment (Climate Trigger) Bill 2022 to the Environment and Communications Legislation Committee for inquiry and report by 28 February 2023. The closing date for submissions was 13th October 2022.
Significance for CCLA
The EPBC was written in 1999 and needs to be updated to reflect current science and national emissions reduction commitments.
The government has legislated a new NDC6 of 43% emissions reductions below 2005 levels by 2030.
The government has committed to reform the existing Safeguard Mechanism as the principal means of achieving the new NDC.
The government is now faced with a dilemma:
It has declined to commit to an embargo on new, and extensions of existing, fossil fuel projects, of which there are more than 100 in the pipeline, some of which could significantly increase national emissions if they proceed to production.
But, in its present form, the EPBC 1999 prohibits ministerial intervention in environmental approvals that could render the NDC unachievable.
Legislating the Environment Protection and Biodiversity Conservation Amendment (Climate Trigger) Bill 2022 would give the government the means to reject projects that pose a significant or prohibited impact on emissions, without the need for a blanket embargo on fossil fuel projects.
While this is “second-best” to a blanket embargo, it is worth pursuing as a pragmatic first step.
From a long-term perspective, ACD is clearly the best mechanism for bringing down Australia’s emissions at a rate that can be determined by the initial price and annual increments.
However, it will take several months, following any commitment to ACD, for the government to design and enact the necessary legislation.
Then, by its very nature, ACD will take time – some years, perhaps – to actually bite, given that we advocate for a low initial price, with annual increments, to give the community and business time to adapt to the new pricing regime.
It is entirely likely that the fossil fuel industry will simply absorb the low initial imposts.
The Canadian “Backstop Legislation” came into effect in 2019, with an initial price of C$20/t, rising by C$10 pa to reach C$50/t in 2022. Canada is committed to increase the price to C$170/t by 2030.
Without a Climate Trigger, which can be legislated as early as March or April 2023, one or more major fossil fuel projects could be set in train with the prospect of rendering Australia’s climate targets unachievable.
It is, therefore, in CCLA’s interest to Lobby MPs to support the Environment Protection and Biodiversity Conservation Amendment (Climate Trigger) Bill 2022 [No.2]
References
1 Australian Government Department of Climate Change, Energy, the Environment and Water (DCCEEW), National environment law: The basics - environmental impact assessments and approvals of projects, https://www.dcceew.gov.au/sites/default/files/documents/project-assessments-basics_1.pdf
2 “Should we include a climate-change trigger in national environmental law?”, Peter Burnett, Sustainability Bites, https://sustainabilitybites.home.blog/2022/07/26/should-we-include-a-climate-change-trigger-in-national-environmental-law/
3 Federal Resources Minister Madeline King MP, The Guardian, 11 August 2022, https://www.theguardian.com/environment/2022/aug/11/labor-to-back-new-fossil-fuel-projects-that-stack-up-economically-and-environmentally
5 Parliament of Australia, Environment Protection and Biodiversity Conservation Amendment (Climate Trigger) Bill 2022, https://www.aph.gov.au/Parliamentary_Business/Bills_Legislation/Bills_Search_Results/Result?bId=s1344
6 NDC: Nationally Determined Contribution – to the Paris commitment to keep global warming within 1.5C above pre-industrial levels.
Appendix A - Evidence of failure of EPBC Act 1999 to protect MNES
The EPBC Act 1999 was created to protect nine ‘matters of national environmental significance’ (MNES).
Since 1999, the EPBC Act has been applied on a piecemeal basis and has been criticised elsewhere for its failure to take a holistic view of the environment.
This statement by Professor Graeme SamuelA1 highlights that failure:
Cumulative impacts on MNES are not holistically addressed, as the Commonwealth and the States and Territories do not manage their environmental and heritage responsibilities in concert. The overall result for the nation is net environmental decline, rather than protection and conservation.
The following entries demonstrate how it has failed to protect most of those MNES, particularly by excluding consideration of the overall impacts on most of the MNES caused by a warming climate - ie, the lack of a ‘climate’trigger’.
World Heritage Properties
A failure to include a Climate Trigger has compromised the effectiveness of the EPBC Act to protect world heritage properties because Australia is not immune to the global impacts of climate change, as highlighted by UNESCO:A2
World Heritage properties are affected by the impacts of climate change at present and in the future. Their continued preservation requires understanding these impacts to their Outstanding Universal Value and responding to them effectively.
RAMSAR Wetlands
A statement on climate change and wetlands by the Head of the Australian Ramsar Administrative Authority highlights the failure of the EPBC Act to effectively protect RAMSAR wetlands without a Climate Trigger. Furthermore, that omission deprives Australia of the opportunity to consider the value of these wetlands as a means of mitigating the impacts of climate change.A3
Australia’s Ramsar listed wetlands and other water-dependent ecosystems are vulnerable to the impacts of climate change. Changes to inflows associated with increasing temperatures, more variable rainfall and more extremes are affecting rivers and wetlands nationally. Sea level rise and storm surge are impacting coastal wetlands.
Wetlands can be vulnerable to the impacts of climate change, including changes in rainfall, temperature, sea levels and extreme weather events. Wetlands can also play an important role in our responses to a changing climate, through capturing and storing carbon to reduce greenhouse gas emissions, and through moderating the impact of hazards such as flooding, storm surge and sea level rise.
Nationally threatened species and ecological communities
Loss of habitat has been an obvious contributor to the demise of species. But a warming climate, driven by rising concentrations of greenhouse gases in the atmosphere, has triggered climatic events of increasing frequency and severity which have caused flora and fauna to be wiped out in massive bushfires, heatwaves and floods, events that are now making human habitation difficult in expanding areas of the continent because of inclement weather and the prohibitive cost of insurance.
DCCEEW’s report, Threatened species & ecological communitiesA4, highlights how the piecemeal approach to environmental protections engendered by the EPBC Act has led to Australia becoming a leader for species extinction.
Australia is home to between 600,000 and 700,000 species, many of which are found nowhere else in the world. About 84 per cent of plants, 83 per cent of mammals, and 45 per cent of birds are only found in Australia.
Changes to the landscape and native habitat as a result of human activity have put many of these unique species at risk. Over the last two hundred years many species of plants and animals have become extinct.
Since colonisation, about 100 of Australia’s unique flora and fauna species have been wiped off the planet. The rate of loss, which is as comprehensive as anywhere else on Earth, has not slowed over the past 200 years, devastatingly illustrated in this statement:A5
Figure A1: Australia’s record of species extinction
Internationally renowned ecologist Professor Hugh Possingham has watched for the past 20 years as the national environmental laws he helped design have failed to protect Australia's threatened species and unique ecosystems.
Since the Environmental Protection and Biodiversity Conservation Act passed in 1999, the list of threatened species and ecosystems has grown by more than one-third – from 1483 to 1974.
A chart (Figure A1), published in the Sydney Morning HeraldA5, is a stark demonstration of the failure of the EPBC Act without a Climate Trigger.
Australian and migratory species
Plants and animals all over the world are redistributing and changing their behaviour in response to warming temperatures. Observing these changes tells us a lot about our changing climate. Extracts from CSIRO’s ECOSA5 report bear witness:
Every year we get more evidence that the climate is changing, in the ocean and on land.
Reports of heat records, marine heatwaves, declining rainfall and drying landscapes, shifting ocean currents, and intensifying bushfire seasons are becoming commonplace.
Australia’s unique species of plants and animals are already feeling this shift and are showing signs of an ‘adapt, move or die’ response.
Ocean warming has facilitated the invasion of the long-spined sea urchin and the accompanying loss of giant kelp in the waters off Tasmania.
New research presented showed that prior studies have underestimated the proportion of species impacted by climate change.
Mass die-off events during days of extreme heat have been recorded in flying foxes and the Roe’s Abalone in Western Australia.
In reptiles, a change in the offspring sex ratio has also been linked to increasing temperatures.
Climate change is already driving significant changes in the phenology, distribution and abundance of Australian birds, as demonstrated by these extracts from Birdlife International.A6
A number of studies have shown that climate change is already driving significant changes in the phenology, distribution and abundance of Australian birds.
Climate change is likely to have a deleterious impact on many Australian birds.
Climate change is also likely to exacerbate other threats such as habitat loss and invasive species. For example, eucalypt woodlands are threatened by more frequent fires which will facilitate the spread of fire-adapted weeds such as gamba grass Andropogon gayanus which in turn will promote further fires. Modelling shows that this African invasive could become established across much of northern Australian, threatening birds such as the endangered Gouldian Finch Erythrura gouldiae (Low 2007).
The Great Barrier Reef
In July 2019, the Great Barrier Reef Marine Park Authority (GBRMPA) released this statement on climate change:A7
Climate change is the greatest threat to the Great Barrier Reef (the Reef) and coral reefs worldwide.
Global emissions of greenhouse gases such as carbon dioxide from the burning of fossil fuels, agriculture and land clearing are causing climate change. It is estimated these human activities have driven approximately a 1.0°C increase in global average temperature above pre-industrial levels.
This change in climate is forecast to bring further destructive marine heatwaves due to increased sea temperature. Associated impacts from altered weather patterns — such as more intense storms, tropical cyclones and flood events — ocean acidification and rising sea level also damage coral reef ecosystems.
Strong global action to curb climate change is needed urgently to give the Great Barrier Reef the best chance of survival.
Figure A2: Global average temperature increase and what this means for coral reefs
The GBRMPA report included the chart at Figure A2, demonstrating the potential threat to the Great Barrier Reef without a Climate Trigger in the EPBC Act.
Commonwealth parks and reserves
A Birdlife International reportA8 says that climate change poses a growing challenge for managers of all Commonwealth parks and reserves.
Increasing temperatures, sea level rise and changes in rainfall patterns will lead to changes in habitats and the abundance, distribution and composition of native species. Climate change may also exacerbate existing pressures from weeds and introduced pest animals. Changing landscapes and climatic conditions will also have implications for existing recreational and cultural values.
Fracking and climate change
The last ‘matter of national environmental significance’ in the EPBC Act is concerned with water resources in relation to coal seam gas development and large coal mining development.
It omits reference to other forms of ‘unconventional gas extraction’ – generally known as “Fracking” or ‘hydraulic fracturing’ – of which coal seam gas is a special case. Other forms of fracking, ‘shale gas’ and ‘tight gas’ extraction are also employed in Australia.
While the impact of fracking on ground water resources is extremely serious, the EPBC Act excludes consideration of the climate change impact of the emissive products of fracking. These extracts from Climate News AustraliaA9 bear witness to the serious impacts of fracking on the environment.
The natural gas industry creates greenhouse emissions. This adds to the climate crisis.
The reason for this is that natural gas is composed nearly entirely of methane. Methane is a powerful greenhouse gas. There is over 230 times more carbon dioxide in the atmosphere than methane. But methane heats the atmosphere 86 times more in 20 years. It heats the atmosphere up to 34 times more than carbon dioxide in 100 years.
Research shows that the fossil fuel industry has underestimated its methane emissions by 25 to 40 per cent globally. The natural gas industry releases about 19 per cent of Australia’s greenhouse gas emissions. That is according to official records. However, the gas industry does not measure its “fugitive emissions” correctly. This is the methane that gas producers release during drilling and processing. So, the Australian natural gas industry has a larger impact on the climate than it claims.
References - Appendix A
A1 Prof Graeme Samuel AC, Independent Review of the EPBC Act – Final Report,, October 2020, https://epbcactreview.environment.gov.au/resources/final-report/executive-summary
A2 UNESCO, Climate Change and World Heritage, https://whc.unesco.org/en/climatechange/
A3 DCCEEW, Wetlands and climate change - information resources, https://www.dcceew.gov.au/water/wetlands/climate-change-resources
A4 DCCEEW, Threatened species & ecological communities, https://www.dcceew.gov.au/environment/biodiversity/threatened
A5 Mike Mike Foley, 'Really depressing': National environment laws failing to deliver, Sydney Morning Herald, 14 June 2020, https://www.smh.com.au/politics/federal/really-depressing-national-environment-laws-failing-to-deliver-20200610-p551fs.html
A6 Mike Foley, Why is Australia a global leader in wildlife extinctions?, Sydney Morning Herald, 20 July 2020
A6 Birdlife International, Data Zone, 2008, http://datazone.birdlife.org/sowb/casestudy/climate-change-is-impacting-the-distribution-abundance-and-migration-of-australian-birds
A7 GBRMPA, Climate Change, Document No: 100486 Revision: 1, 25 July 2019, https://www2.gbrmpa.gov.au/learn/threats/climate-change
A8 Birdlife International, Data Zone, 2008, http://datazone.birdlife.org/sowb/casestudy/climate-change-is-impacting-the-distribution-abundance-and-migration-of-australian-birds
Climate News Australia, Fracking in Australia in 2021, https://climatenewsaustralia.com/fracking-in-australia-in-2021-infographic/
