Wind farms and parrots

Bald Hills Wind Farm Pty Ltd v Minister For the Environment And Heritage VID447/2006

I've written before about the federal Environment Minister's decision to refuse approval for the Bald Hills windfarm because of impacts on the threatened orange-bellied parrot.

The windfarm has taken action in the Federal Court to challenge the decision and for those interested, today's Age has a report on yesterday's interlocutory hearing, where the company failed in its bid to call the Minister himself to give evidence. It's an interesting read.

Is federal environmental law effective?

The Australia Institute has released a report on the federal Environment Protection and Biodiversity Conservation Act 1999 (EPBC Act) which claims that the environmental assessment and approval regime under the Act is a waste of money.

The report is on the Australia Institute's website (see 'What's New'). I'll post some of my thoughts on the report tomorrow.

Japanese whaling in Australian Antarctic waters

Humane Society International Inc v Kyodo Senpaku Kaisha Ltd [2006] FCAFC 116

The Federal Court on Friday granted leave to the Humane Society International (HSI) to proceed with a case to stop Japanese whaling in Australian Antarctic waters:

THE Federal Court has cleared the way for the Japanese company Kyodo Senpaku Kaisha to be challenged over its whaling.The court yesterday allowed Humane Society International to seek an injunction ordering the company to halt whaling in waters off the Australian Antarctic Territory, where it has harpooned hundreds of the animals.

The background to the case is this. In late 2004, HSI commenced proceedings in the Federal Court, seeking an injunction to restrain Kyodo Senpaku Kaisha – a major Japanese whaling company – from carrying out whaling in Australia’s "whale sanctuary", which comprises all Australian waters.

Japan is allowed to conduct "scientific whaling" under the International Whaling Commission rules and carries out part of this whaling in Antarctic waters over which Australia claims sovereignty. Under Australian domestic law (the federal Environment Protection and Biodiversity Conservation Act 1999 or EPBC Act), whaling is prohibited in any Australian waters. So as a matter of Australian law, Japan’s whaling in Australian Antarctic waters is illegal.
However, a number of countries – including Japan – do not recognise Australia’s claim to Antarctica and Antarctic waters and so the position at international law is unclear. This does not mean Australia can’t attempt to enforce it’s own laws against nationals of other countries, however the federal government has declined to enforce the EPBC Act against Japanese whalers. It prefers, it says, to use diplomatic pressure and international forums and does not want to spark an international disagreement over its Antarctic claims by enforcing its domestic laws against other countries who carry out activities in Antarctica. Doing so would be provocative when those countries believe that Australia has no right to enact those laws in the first place.

However, under the EPBC Act, any person who has a relevant interest can apply to the Federal Court to enforce the Act. HSI has an interest in enforcing provisions related to whales because it is a representative organisation whose objects include conservation and animals welfare. And so HSI applied to the Court to enforce the Act itself, ie, to obtain an injunction to prevent Kyodo from carrying out whaling in Australian waters.

As a first step, HI had to get the Court’s permission to serve the proceedings on Kyodo, because the company has no physical presence in Australia and must be served at its offices in Japan. The Court sought the federal government’s view and the Attorney-General, Phillip Ruddock, argued that the Court should not grant leave. The reasons were pretty much those I’ve given above: seeking to enforce Australia’s laws against countries who dispute the validity of those laws could spark international disagreement and that could ultimately undermine Australia’s claim.

The judge agreed with the Attorney-General and refused to grant HSI leave to serve documents on Kyodo. (The Courting Disaster blog gives a good summary of that decision and the international law aspects of the case – you need to scroll down to the November 20 entry). HSI appealed that decision to the full Federal Court and the appeal was heard last November. The Court has now allowed HSI’s appeal, which means that HSI can serve the relevant documents on Kyodo and proceed with the case.

This is good news for anti-whaling campaigners as the case will attract more attention to Japanese whaling in Antarctic waters. Ultimately it will be difficult to enforce any injunction that may be granted, but the case is probably more important as part of the PR war over international whaling.

The Federal Court judgment is here. Later in the week we’ll try to bring you some more detailed analysis of the decision itself.

Do US greenhouse emissions breach international trade law?

Nobel Prize-winning economist Joseph Stiglitz has an article out today which suggests that the US is in breach of its World Trade Organisation (WTO) obligations by unfairly subsidising energy:

Fortunately, we have an international trade framework that can be used to force states that inflict harm on others to behave in a better fashion. Except in certain limited situations (like agriculture), the WTO does not allow subsidies—obviously, if some country subsidizes its firms, the playing field is not level. A subsidy means that a firm does not pay the full costs of production. Not paying the cost of damage to the environment is a subsidy, just as not paying the full costs of workers would be. In most of the developed countries of the world today, firms are paying the cost of pollution to the global environment, in the form of taxes imposed on coal, oil, and gas. But American firms are being subsidized—and massively so.

There is a simple remedy: other countries should prohibit the importation of American goods produced using energy intensive technologies, or, at the very least, impose a high tax on them, to offset the subsidy that those goods currently are receiving… Japan, Europe, and the other signatories of Kyoto should immediately bring a WTO case charging unfair subsidization.

While it is clear that the US’s greenhouse emissions impose unfair environmental costs on other countries, it’s much harder to say what level of energy taxes would or would not represent a subsidy. As Stiglitz says "A subsidy means that a firm does not pay the full costs of production. Not paying the cost of damage to the environment is a subsidy." But the problem is, how do you work out what the cost of damage to the global environment is – now and in the future – from each unit of energy? And how do you tell that Europe or Japan's taxes are not themselves a subsidy?

I’d welcome thoughts from any international lawyers but it seems to me that a WTO case against the US – while I’d love to see it! – would have more political than legal merit.

An Environment Protection and Biodiversity Conservation Act primer: Part 2

Las post, I looked at the limited scope of the Act and why it is inappropriate for dealing with cumulative impacts, in the context of the Australian Environment Minister's decision to refuse consent to a windfarm which could harm the endangered orange-bellied parrot. Today I look at how imposing conditions under the EPBC Act allows for win-win outcomes and some lessons for us from this situation.

Win-wins are commonplace under the Act

The media reports on this issue seem to have assumed or implied that the Minister had only two choices: to approve the windfarm or to reject it. Harry Clarke has pointed out that there was a straightforward win-win solution here: the parrots can be successfully bred and returned to the wild, so the windfarm could be allowed with the condition that it pay for a breeding and release program that returned a few parrots each year to the wild population.

Similarly, Chris Tzaros, who co-ordinates the Orange-bellied Parrot Project said he was surprised by the Government's decision, saying he thought Bald Hills could have been safely approved with a conservation management plan.

As I understand it, either solution was well within the Minister’s power, which makes you wonder whether the decision was more political than environmental. The Minister can approve project with all sorts of conditions.

The Age reported that the Minister's decision was only the fourth time an environment minister has invoked the EPBC Act to veto a proposed development, out of 2745 developments referred to the Government since it came into force six years ago. I spoke to one of the main EPBC Act decision-makers in the federal Department of Environment and Heritage last year about the success of the Act and this statistic. He made the point that many hundreds of projects had been modified substantially by conditions imposed by the Minister which made a huge difference to their environmental impacts. In his view, this was the real power and success of the Act.

He also commented that projects were never refused outright unless they were so inherently destructive that no conditions could be applied that would moderate their impact. In most of those cases, the projects were illegal under State law anyway and had been submitted only to make some kind of political point. This sounds very different to the situation with the Bald Hills windfarm project.

It's unclear why sensible conditions were not considered by the Minister in this case.

Some conclusions

Whether the Minister’s decision was politically-driven or not, it was certainly a bad one for the environment and in terms of social costs and benefits: it will likely save one bird every 109 years while sacrificing an otherwise viable development. And, in my opinion it represents appalling administration of the Act:

• It uses the Act inappropriately to address a cumulative impacts problem by prohibiting a development which will have a truly trivial affect on the problem;
  
• It does not consider imposing conditions which could actually have done something positive for the orange-bellied parrot while allowing an important renewable energy development to proceed.

There are reports that a legal challenge to the Minister’s decision is being considered. I would have thought such a challenge would have some legs. I think there’s questions about whether a windfarm that could kill on average one parrot every 109 years is a ‘significant impact’, as is required under the Act. I think there’s also an argument that the Minister’s consideration of the ‘cumulative impact’ of other sites, rather than just looking at the marginal impact of this development means that he has taken irrelevant factors into consideration, which would invalidate his decision. (I should point out that that’s not an argument that would be very popular with green groups, who have been pushing consideration of ‘cumulative impacts’ under the EPBC Act).

(Originally posted at the Oikos blog).