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January 2007

Joseph Sax wrote his seminal book Defending the Environment in 1970, in which he considered the ways in which civil society could litigate to protect the environment. Little could Sax have imagined the opportunities available today in many jurisdictions in Australia for ordinary citizens and environmental groups to challenge the environmental credentials of major projects. One area of intense activity is now climate change. The Environment Defender's Office reports on one of the most important cases to date in its recent bulletin:

EDO Queensland and barristers Chris McGrath and Stephen Keim SC are acting for the Queensland Conservation Council (QCC) in the first climate change case in a Queensland Court. The case objects to Xstrata Coal Qld’s mining lease expansion at an open cut coal mine west of Mackay, because of the 72-96 million tonnes of greenhouse gas emissions (15% of Australia’s annual emissions) which will be produced from the mining, transport and use of the coal from the mine over its 15 year lifespan. The case aims to have the true costs of greenhouse emissions recognised and conditions imposed to avoid, reduce or offset the emissions, such as by planting carbon sinks. EDO Queensland and QCC have now secured top experts to give evidence to the Land and Resources Tribunal, including Emeritus Professor Ian Lowe on climate change science, Dr Hugh Saddler on calculation of greenhouse gas emissions, Ben Keogh on the range of offset measures available, Jon Norling on the economic impacts of climate change, Professor Ove Hoegh-Guldberg on the impacts of climate change on the Great Barrier Reef and Dr Stephen Williams on the broader ecological impacts of climate change.


I've already written a few entries on James Lovelock's views on climate change. To reprise, Lovelock believes that it is too late to address the worse effects of climate change, and that we have to batten down the hatches for the wild climate ride ahead, in which the earth will move to a permanently hotter state. This is painted as an apocalyptic vision, but there are some climatologists (such as Andrew Watson, Fellow of the Royal Society) who have come up with even more terrifying possibilities such as temperature increasing unabated until the oceans boil away and all life is extinguished.

To return to Lovelock for the moment. To get some idea where Lovelock's views fit within the panoply of perspectives on global warming, check out the deliberations of the BBC's Climate Panel convened in the middle of last year. The panel of experts was asked to give its verdict on 20 key questions. Here's what they had to say in response to question 17:

17. Politicians are unlikely to cut greenhouse gas emissions sufficiently until it is too late to prevent dangerous warming. VERDICT: YES 6, NO 1


The Intergovernmental Panel on Climate Change (IPCC) will release the first of four volumes of its Fourth Assessment Report (AR4) on 2 February. Although it doesn't carry a particularly striking title, the AR4 promises to have the biggest impact of any recent study on climate change, including the Stern Review.

The IPCC was established in 1988 by the World Meteorologial Organisation and the United Nations Environment Programme to assess scientific, technical and socio-economic information relevant for understanding climate change, its potential impacts and options for adaptation and mitigation. The last IPCC Assessment Report was in 2001, but has remained the best authoritative guide to the science of global warming to date. The AR4 will take over that mantle. AR4 documents will be released on a rolling basis throughout 2007, culminating in the publication of the Synthesis Report, the drafting of which is carefully overseen by governments.

By early accounts AR4 will be stupendously terrifying assessment, and will conclude that it is 'extremely likely' that man-made global warming will result in temperature increases of around 3 degrees celsius by 2100. Last Sunday The Observer reported that

A draft copy of the Fourth Assessment Report of the Intergovernmental Panel on Climate Change, obtained by The Observer, shows the frequency of devastating storms - like the ones that battered Britain last week - will increase dramatically. Sea levels will rise over the century by around half a metre; snow will disappear from all but the highest mountains; deserts will spread; oceans become acidic, leading to the destruction of coral reefs and atolls; and deadly heatwaves will become more prevalent.

For a discussion of what a world 3 degrees warmer would be like to live in, have a listen to the report on gaia and climate change on ABC's Science Show last Saturday.


Sometimes it is difficult to understand the enormity of the climate change problem, as the possible consequences are so broad ranging and complex.

On statistic that really cuts through, however, is the numbers for species extinction. Writing in The Age today, Tim Flannery notes the following

The computer models used by scientists to predict how species will fare as our planet warms indicates that between two in 10 and six in 10 of all species alive on Earth today will become extinct if our planet warms by just three degrees. And our Earth is likely to warm by that much this century if we just continue as we are. Think about it. You see three kinds of birds in your garden today. In future you might see just one.


At a conference here at the Law School last year, I gave a short paper in which I argued that we researchers in environmental law and policy need to reflect critically on the environmental ethics of our teaching and research activities. If we are to advocate greater recognition of environmental sustainability objectives in national and international laws, surely we ought also to consider how we can keep the ecological footprint of our research within the bounds of sustainability.

I suggested that a way of doing this is to expand our ethical frame of reference, to include not only things such as human and animal ethics (which researchers have to address if dealing directly with human and animal subjects) but environmental ethics more generally.

This throws up some difficult questions. For instance, we know how important conferences are to the work of academics but how do we reconcile our commitment to sustainability when we hop on a return flight to a conference in Europe? That will generate around 5.6 tonnes of CO2, spewing out in one go a third of the CO2 an average Australian produces in a year. Do we personally cop the cost of offsetting those emissions? Do we decide not to go, mindful of the limitations of offsetting schemes?

The British PM has recently had to confront a similar dilemma. Mindful of his Government's commitment to carbon neutrality in its operations by 2015, Tony Blair has said that he will offset emissions from flights on his recent holiday in Miami.


A great new idea emanating from the Climate Group - an international organisation now with an office in Melbourne. To be published each week in The Age will be a climate change indicator telling Victorians how much greenhouse gases were produced the week before, with a breakdown on sources. It would be great if Fairfax could also pop an indicator for NSW emissions in the weather pages of The Sydney Morning Herald.


The Australian Centre for Environmental Law here at the Law School is holding a conference in conjunction with the Environmental Defender's Office, Sydney on 16 and 17 February.

The conference will examine the intersections between legal disciplines and the environment. Experts, across a broad range of legal disciplines will reflect on how their areas of law impact on the environment.

The Keynote Speaker will be Professor Kevin Gray from Trinity College, University of Cambridge. Professor Gray will speak on the topic “Can environmental regulation amount to a taking of common law property rights”.

The Conference will be held at The Portside Centre, 207 Kent Street, Sydney.

Cost of attendance:

Corporate Rate ($550); NGO rate ($300); Academic/Individual Rate $200; Student/Concession Rate $100

A full copy of the brochure including program and registration form is available here.

For more information, please contact Ms Val Carey, Sydney Law School, Telephone (02) 9351 0238 or email.


Before Christmas the Federal Court found in favour of Greens leader, Senator Bob Brown, in an application he brought concerning contraventions of the Environment Protection and Biodiversity Conservation Act 1999 (Cth) by Forestry Tasmania. In his decision Marshall J accepted Senator Brown's argument that forestry operations in the Wielangta State Forest are having or are likely to have a significant impact on three threatened species (the Tasmanian wedge-tail eagle, the broad-toothed stag beetle and the swift parrot). The nub of the decision was that Forestry Tasmania did not enjoy an exemption from relevant provisions of the EPBC Act seeking to protect threatened species. This was because such an exemption only applied if the forestry activities were carried out in accordance with the Tasmanian Regional Forestry Agreement, and in this case the operations did not follow the RFA because they did not involve appropriate protection measures for the threatened species.

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Late last year James Lovelock, the originator of the Gaia hypothesis, was awarded the Collier Medial by the Institution of Chemical Engineers in the UK. In accepting the award he delivered an amazing speech. Apart from providing many insights about his own career in science, the speech helpfully sets out some basic facts about climatology and Lovelock's own view about the fate of the Earth Goddess thanks to human interference with atmospheric systems.

Lovelock repeats the view, developed in more detail in his 2005 book (The Revenge of Gaia) that

the catastrophe threatened by global heating is far worse than any war, famine, or plague in living memory; worse even than global nuclear war. Much of the lush and comfortable Earth we now enjoy is about to become a hot and barren desert.


WWF and The Sydney Morning Herald are running an environmental campaign called Earth Hour that aims to have as many lights as possible turned off in Sydney from 7.30pm on 31 March 2007. Many lights from the Harbour and Anzac Bridges will be switched off for an hour that evening, and a range of companies (including ANZ and IAG) have already come on board. Hopefully law firms will join in also (though this may be difficult given the notorious hours put in by Sydney solicitors in the big firms). I reckon Sydney Uni should sign up to Earth Hour - let's ask the Vice-Chancellor to do so.


Often it is the plight of an iconic species, rather than less visible but equally important living organisms, that helps to raise dramatically the public profile of an environmental catastrophe in the making. Such is the case of the Polar Bear (Ursus maritimus), as its Arctic habitat disappears thanks to global warming. The United States interior secretary, Dick Kempthorne, has recommended that the bears be added to the list of threatened species. As many have noted, this is a clear reversal by the Bush administration from its previous reluctance to acknowledge climate change as a significant problem.


The final Switkowski report on opportunities for the nuclear industry has now been released. As with the draft report, the material included on climate change is valuable for its frankness. Such as this assessment, for instance (buried in Appendix O):

If emissions continue to grow, or even just remain at their present level, climate models indicate that global average temperatures and sea levels will rise, rainfall patterns will shift, sea ice will melt and glaciers will continue their global retreat. Impacts will vary greatly across regions. Overall however, rapid climate change presents fundamental challenges for human and biological adaptation, especially for natural ecosystems which typically evolve over millennia. It also poses fundamental questions of human security, survival and the stability of nation states. Climate change is therefore an issue of major significance for all of us.

The final report confirms the draft report's conclusion that nuclear is no quick fix to rising emissions. With 25 nuclear power plants operating by 2050 Australia's emissions will still be almost double what they were in 1990. This is essentially because demand for electricity is projected to increase by more than double before 2050, and most of this demand will have to be satisfied by coal and gas power plants.