Independent review of the Environment Protection and Biodiversity Conservation Act 1999: interim report
http://www.environment.gov.au/epbc/review/publications/interim-report.html
Chapter 8: Climate Change
Key points

Climate change is likely to have major impacts on biodiversity and, as such, it should be considered as part
of this review.

The Australian Government is implementing a strategy for tackling climate change in Australia. This
strategy is built on three pillars: reducing Australia’s carbon pollution; adapting to unavoidable climate
change; and helping to shape a global solution.1

This chapter considers the potential for the EPBC Act to address the first two pillars of the Australian
Government strategy – mitigation of climate change via a ‘greenhouse trigger’, and adaptation to climate
change through changing impact assessment and biodiversity protection measures.

The relevance of a ‘greenhouse trigger’ depends on the implementation of the Australian Government’s
proposed Carbon Pollution Reduction Scheme (CPRS), and whether a trigger would be complementary to
the CPRS.
Climate change adaptation and mitigation
8.1
8.2
In responding to climate change there are two potential policy approaches:

The first is climate change mitigation, which attempts to reduce the emission of greenhouse gases 2
into the atmosphere and subsequently reduce anthropogenic climate change. Possible mitigation
measures include traditional command and control responses such as a ‘greenhouse gas trigger’,
and economic instruments, such as a capandtrade scheme or a carbon tax.

The second policy approach is climate change adaptation. Adaptation has been described as ‘the
principal way to deal with the unavoidable impacts of climate change. It is a mechanism to manage
risks, adjust economic activity to reduce vulnerability and to improve business certainty’. 3
Adaptation for the purpose of biodiversity protection would involve responses that would allow for
risk management and help maintain the diversity and perseverance of species.
Submissions to this review considered that the EPBC Act may be a vehicle for both mitigation of, and
adaptation to, climate change. This chapter deals with these approaches separately.
Incorporating climate change in the Act’s objects
8.3
A number of submissions indicated that the profile of climate change and its treatment under the Act
would be improved if climate change was referenced in the objects of the Act. 4 The Southern Councils
Group submitted that given ‘the seriousness of global warming, consideration should be given to listing
greenhouse gas emissions as a necessary consideration either separately or in the context of ESD’. 5
8.4
It was suggested this would improve outcomes for mitigation and adaptation. The concept of changing
the objects of the Act is discussed further in Chapter 2 of this report.
Climate change mitigation
Current provisions of the Act
8.5
When making a controlled action decision, decision-makers under the EPBC Act are not required
specifically to consider greenhouse gas emissions. This principle was confirmed in the Your Water
Your Say case, where it was found that:
Australian Government, Carbon Pollution Reduction Scheme: Australia’s Low Pollution Future, White Paper, vol 1, (executive summary),
p.xv. Available at Department of Climate Change Website (2008), http://www.climatechange.gov.au/whitepaper/index.html at 10 April
2009.
2
This chapter uses the term greenhouse gas to include: carbon dioxide, methane, nitrous oxide, sulphur hexafluoride, hydrofluorocarbons
and perfluorocarbons.
3
Council of Australian Governments, National Climate Change Adaptation Framework (2007)
http://www.coag.gov.au/coag_meeting_outcomes/2007-04-13/docs/national_climate_change_adaption_framework.pdf at 4 June 2009.
4
e.g. Submission 008: Climate Action Network Australia; and Submission 002: Climate Action Coogee.
5
Submission 159: Southern Councils Group, p.3.
1
To establish the ground that a decision-maker has failed to take a relevant consideration into account … it must
be shown that he or she was bound by law to have regard to the particular consideration … The question of
greenhouse gas emissions was not such a matter.6
8.6
This confirms the previous case Wildlife Preservation Society of Queensland Proserpine/Whitsunday
Branch Inc v Minister for the Environment& Heritage,7 where an application for judicial review was
brought pursuant to the Administrative Decisions (Judicial Review) Act 1977 challenging a decision
deeming two coal mines as not controlled actions. It was argued that there was a causal link between
the mining and the burning of coal, and protected matters under the EPBC Act, and that this amounted
to a significant impact on these matters. The judge in this case, Dowsett J, dismissed the claims, and
concluded that he was:
far from satisfied that the burning of coal at some unidentified place in the world, the production of greenhouse
gases from such combustion, its contribution towards global warming and the impact of global warming upon a
protected matter, can be so described.8
Key points raised in public submissions
Rationale for mitigation under the EPBC
8.7
Submissions were conscious that ‘when the Act was passed climate change was not perceived as the
threat it now is.’9 Environment groups noted that climate change will have severe impacts on
biodiversity.10
8.8
It was suggested that Australia’s international obligations demand action on climate change. 11 The
NSW young Lawyers contended that ‘any genuine and progressive commitment to the Kyoto Protocol
means direct implementation of statutory triggers, which can effectively catch and address projects
posing serious threat to carbon reductions’. 12
8.9
The Australian Network of Environmental Defender’s Offices (ANEDO) suggested that Australia’s
greenhouse obligations are less prescriptive than was suggested by the NSW young Lawyers and rather
‘require the Commonwealth to take domestic action to mitigate our emissions’ 13.
8.10
Submissions also noted that a greenhouse gas trigger was previously proposed by the Australian Labor
Party and was part of the 2007 ALP election platform. 14
8.11
While the need to ‘do something’ about climate change because it is the ‘single greatest threat to our
environment’15 was expressed forcefully in submissions, there was less discussion about why a
greenhouse gas trigger was a better option than other mitigation mechanisms. The urgency of climate
change mitigation was stressed by environment groups. Greenpeace commented that:
Climate change poses a significant threat to the global and Australian environment. There is increasing evidence
from the natural world that climate change is happening faster than predicted by the 4th Assessment Report of
the Intergovernmental Panel on Climate Change. 16
8.12
Environment Tasmania, commenting on the need for urgent action, stated that the focus should be on
mitigation rather than adaptation:
The abatement of emissions, rather than post-emissions amelioration is of prime importance given the need to
de- carbonise economies in the next few decades in order to avoid catastrophic and runaway climate change.17
8.13
6
Submissions noted that the Act does not allow for consideration of climate change, or that climate
change is not considered in the implementation of the Act, 18 and that this arises from the difficulty in
causally linking greenhouse emissions and a significant impact on a protected matter. 19 In a case study
Your Water Your Say Inc v Minister for the Environment, Heritage and the Arts [2008] FCA 670, para [22] (per Heerey J).
Wildlife Preservation Society of Queensland Proserpine/Whitsunday Branch Inc v Minister for the Environment& Heritage [2006] FCA
736.
8
Wildlife Preservation Society of Queensland Proserpine/Whitsunday Branch Inc v Minister for the Environment& Heritage [2006] FCA
736 para.72.
9
Submission 116: Mackay Conservation Group, p.1; see also Submission 151: Southern Rivers Catchment Management Authority.
10
See e.g. Submission 020: Environment Tasmania.
11
Submission 074: New South Wales young Law yers Environmental Law Committee; and Submission 086: Greenpeace.
12
Submission 074: New South Wales young Law yers Environmental Law Committee, p.4.
13
Submission 189: Australian Network of Environmental Defender’s Offices, p.13.
14
See e.g. Submission 008: Climate Action Network Australia.
15
Submission 152: North Queensland Conservation Council, p.1.
16
Submission 086: Greenpeace, p.2.
17
Submission 020: Environment Tasmania, p.4.
18
This distinction is made in Submission 017: Dr Chris McGrath, p.5.
19
This is explored in a detailed discussion of the case Wildlife Preservation Society of Queensland Proserpine/Whitsunday Branch Inc v
Minister for the Environment& Heritage [2006] FCA 736, in Submission 190: Friends of the Earth (Australia).
7
Independent review of the Environment Protection and Biodiversity Conservation Act 1999: interim report
http://www.environment.gov.au/epbc/review/publications/interim-report.html
on a referral of an open cut mine coal mine at Anvil Hill, Greenpeace noted that ‘most greenhouse
intensive projects are not referred’ under the EPBC Act. 20 The Queensland Conservation Council noted
further that ‘the Minister has no grounds to require offsets or abatement measures in approval
conditions’.21 It should be noted here that while this is generally the case, it may not be so for projects
where the ‘environment’ is the matter protected.
8.14
The view was put forward that not having a greenhouse gas trigger was a shortcoming, or a ‘glaring
omission’ in the legislation.22 Dr Chris McGrath suggested that an:
anomalous situation exists, whereby the EPBC Act aims to protect matters of NES such as World Heritage
properties, but does not effectively regulate the greatest threat to those matters—climate change. This is like
having a comprehensive criminal law that does not address illegal drugs. 23
8.15
The logic behind this assumption, that greenhouse gas mitigation is a natural function of environmental
protection and biodiversity conservation legislation, is based on a purposive analysis of the Act,
whereby the functions of the Act should flow from its objects. In this light, Environment Tasmania
claimed that ‘the ignorance of the Act [of climate change] severely devalues the Act’s intentions in
achieving sound environmental outcomes.’24 Another view is that the suitability of including a
greenhouse gas trigger should be judged on the structure of the Act, that is, whether a command and
control regulatory regime based around assessment and approval of individual actions is the best
delivery mechanism for greenhouse abatement.
Greenhouse gas trigger – mechanism and design
8.16
The most commonly proposed greenhouse mitigation mechanism in public submissions was a
greenhouse gas trigger. The basic design of a trigger involves the insertion of greenhouse gas
emissions as a new matter of national environmental significance (NES) under the Act. The trigger
would operate by setting a threshold of emissions released over a certain period – or over the life cycle
of the project;25 projects which produce above that threshold will need to undergo assessment and
approval under the Act. It is proposed that through the assessment, emissions would be avoided or
reduced by mandating bestpractice technology, or offset.
8.17
Environment groups also suggested that a greenhouse gas trigger would ‘support the transition to a
cleaner economy based on renewable energy and green collar jobs’26. The Ourimbah Precinct
Committee suggested that the benefit of a greenhouse trigger would be that emissions from particular
industries ‘should be made explicit and be defended by those who would profit from the
developments’.27
8.18
Proposed thresholds for a trigger varied, as did the specifics of proposals. Dr Chris McGrath’s proposal
trigger, which received support in a number of subsequent submissions, set a limit of between 25,000100,000 tonnes of carbon dioxide equivalent. 28
8.19
An alternative proposal put forward by Climate Action Network Australia would prohibit the
construction or expansion of coal fired power plants; or construction or expansion of coal mines; or a
change in land use of land clearance resulting in emissions greater than 125,000 tonnes of carbon
dioxide equivalent per year; or logging in mature forests. 29 It was suggested that the prohibition would
operate similarly to the current EPBC Act controls on uranium mining. Greenpeace supported these
prohibitions on coal mines and power stations, and also proposed a requirement for assessment of
synthetic fuel projects.30
8.20
If a greenhouse trigger were inserted into the Act, a number of consequential amendments would be
required. Dr Chris McGrath supports insertion of specific criteria into the Act guiding the assessment
of carbon intensive projects which would ensure ‘best practice environmental management’. 31
Greenpeace also provided criteria for assessing the acceptability of greenhouse gas emission intensive
projects, where all less intensive alternatives must be investigated, all mitigation or avoidance options
20
Submission 086: Greenpeace, p.2.
Submission 152: North Queensland Conservation Council, p.1.
22
Submission 055: Conservation Council (ACT Region), p.3.
23
Submission 017: Dr Chris McGrath, p.5.
24
Submission 020: Environment Tasmania, p.3.
25
As was proposed in Submission 181: WWF.
26
Submission 118: Moreland Energy Foundation, p.1.
27
Submission 147: Ourimbah Precinct Committee, p.4.
28
Submission 017: Dr Chris McGrath.
29
Submission 008: Climate Action Network Australia; this type of prohibition was also supported in Submission 181: WWF.
30
Submission 086: Greenpeace.
31
Submission 017: Dr Chris McGrath.
21
pursued and any remaining emissions permanently offset. 32 The Conservation Council (ACT Region)
suggested stronger provisions, which would create a cap for the total emissions an action could
produce.33 Climate Action Network Australia proposed that definitions relating to climate change and
associated issues, and greenhouse gas emissions-specific penalty provisions also be inserted into the
Act.34
8.21
The Greater Mary Association proposed a different model, whereby a mechanism should be available
to compare the greenhouse gas emissions produced by an action against alternative proposals. This
would then go to determining the acceptability of the project for the purposes of approval. 35
8.22
A number of submissions proposed mechanisms that would result in biodiversity protection that would
have a dual function of protecting ‘the carbon stored in natural ecosystems (‘green’ carbon’). 36 The
Green Institute submitted that ‘green carbon stores are effectively permanent because their biological
diversity makes them selfgenerating, resilient and adaptive’. 37
8.23
One option for greenhouse gas abatement is the greater use of nuclear power. It is noted that the EPBC
Act currently requires approval for the undertaking of nuclear actions.
Submissions opposed to inserting greenhouse mitigation measures into the
Act
8.24
The National Association of Forest Industries disagreed with proposals to ‘lock up’ carbon in forests.
They submit that the forestry is the only carbon positive industry. They quote the Fourth Assessment
Report of the Intergovernmental Panel on Climate Change, which states that production forestry will
play an important role in greenhouse gas abatement. 38
8.25
A number of other industry groups were also opposed to the insertion of mitigation measures into the
EPBC Act. It was suggested that a greenhouse trigger would be duplicative to other carbon reduction
methods.39 The Australian Petroleum Production and Exploration Association (APPEA) contended
that:
The rationale for capturing projects that emit a threshold amount of CO2-e per a year or during the life of a
project cannot be sustained in today’s climate change landscape. The introduction of a greenhouse trigger into
the EPBC Act only duplicates, inefficiently at that, the raft of current and future greenhouse policy measures’. 40
8.26
APPEA also criticised the command and control regulation of emissions through a greenhouse trigger.
They contend that:
Implementing a greenhouse trigger in the EPBC Act potentially leads to a range of economically inefficient
outcomes including having Government determine:

technology;

production processes; and

energy inputs.
Current and planned policies bring greenhouse emissions into the business decision process more effectively and
efficiently.41
8.27
The National Generators Forum expressed:
caution about the addition of climate change as a matter of NES. The issue is global and generic in nature and it
would be difficult to transcribe into a matter of NES for assessment purposes as virtually any action may be
considered to have climate change implications.42
8.28
32
The National Association of Forest Industries suggests that there is ‘a lack of supporting climate
change policy’ for a greenhouse trigger.43 Woodside are also critical of proposals for a greenhouse gas
trigger because it would result in investment uncertainty. 44
Submission 086: Greenpeace.
Submission 055: Conservation Council (ACT Region).
34
Submission 008: Climate Action Network Australia.
35
Submission 129: The Greater Mary Association, p.2.
36
e.g. Submission 162: The Green Institute, p.4.
37
Submission 162: The Green Institute, p.4.
38
Submission 133: National Association of Forest Industries.
39
Submission 065: BP Australia.
40
Submission 073: Australian Petroleum Production and Exploration Association, p.15.
41
Submission 073: Australian Petroleum Production and Exploration Association, p.16.
42
Submission 122: National Generators Forum, p.2.
43
Submission 133: National Association of Forest Industries, p.15.
44
Submission 120: Woodside Energy.
33
Independent review of the Environment Protection and Biodiversity Conservation Act 1999: interim report
http://www.environment.gov.au/epbc/review/publications/interim-report.html
8.29
An additional concern put forward by the Australian Property Institute is that a greenhouse gas trigger
would ‘lead to a significant number of development applications being referred to the Commonwealth
for determination, resulting in an indefinite timeframe for resolution of those development
applications.’45 They indicate however, that clear targets and the insertion of appropriate timeframes
would reduce these negative outcomes.
Carbon Pollution Reduction Scheme (CPRS)
8.30
In public submissions there was limited detailed discussion of the interaction of a proposed greenhouse
gas trigger and the Australian Government’s proposed emissions trading scheme – the CPRS.
8.31
Environment groups noted what they believed to be the low targets and limited coverage of the CPRS,
and argued that it was not a panacea to greenhouse gas emissions. 46 They therefore concluded that
there was a need for a greenhouse gas trigger as an additional measure. 47 Dr Chris McGrath notes that:
The [CPRS] commencing in 2010 will not avoid severe impacts to Australia’s major natural assets such as the
Great Barrier Reef and, consequently, will not be effective in avoiding dangerous climate change. 48
8.32
The NSW young Lawyers Committee also submitted that the exemptions in the proposed CPRS, such
as agriculture and emission intensive trade exposed industries, could potentially be covered by a
greenhouse gas trigger.49
8.33
ANEDO submitted that the CPRS sets a target, but the scheme does not show how mitigation should
specifically occur. It submits that assessment of greenhouse intensive projects under the EPBC Act
could provide this missing detail.50
8.34
Moreland Energy Foundation submitted that:
A greenhouse trigger would complement existing Government policy measures to address Australia’s
greenhouse gas emissions by ensuring that projects which are likely to create significant emissions are assessed
and their impact minimised or prevented.51
8.35
Another argument, put forward by the North Queensland Conservation Council, noted the difficulty in
achieving the proposed target of 60% reductions in greenhouse gas emissions by 2050 and suggested
that this will ‘require the government to exploit every possible opportunity to ensure that new projects
minimise their emissions.’52
8.36
Contesting these points, industry groups strongly indicated that a greenhouse gas trigger would not be
complementary to the CPRS. BP Australia submitted that:
With the introduction of the [CPRS], it is not clear why additional measures to address climate change are
required in the Act. By introducing a price on carbon through the CPRS, a project proponent must address the
issue of greenhouse gas emissions and decide how to manage their liability as part of their business case.
Additional legislative frameworks through the Act are therefore not required.53
8.37
APPEA specifically addresses the issue of complementarity:
More recently the Garnaut Report noted the role of complementary measures is to ‘lower the cost of meeting
emission reduction trajectories, as well as adapting to the impacts of climate change by addressing market
failures’. It is clearly the case that implementing a greenhouse gas trigger does not translate into addressing a
market failure above and beyond current greenhouse policies.54
8.38
APPEA further indicate that the CPRS is ‘acknowledged as being the lowest cost abatement policy to
reduce carbon emissions’55 and that ‘the EPBC Act does not and can not provide the appropriate
legislative framework for addressing climate change.’ 56 The National Generators Forum suggested that
a CPRS would more effectively and efficiently address issues with the emission of greenhouse gases.
8.39
The issues of efficiency in having a CPRS and a greenhouse gas trigger are addressed by Woodside
Energy, who suggest that, once the CPRS is operating, a greenhouse gas trigger will:
45
Submission 148: Australian Property Institute, p.1.
Submission 189: Australian Network of Environmental Defender’s Offices, p.13.
47
Submission 074: New South Wales young Lawyers Environmental Law Committee.
48
Submission 017: Dr Chris McGrath, p.4. The ‘gross’ inadequacy of the CPRS targets was also cited as a reason for additional measures
such as a greenhouse gas trigger, in Submission 162: The Green Institute, p.4.
49
Submission 074: New South Wales young Lawyers Environmental Law Committee.
50
Submisison 189: Australian Network of Environmental Defender’s Offices.
51
Submission 118: Moreland Energy Foundation, p.1.
52
Submission 152: North Queensland Conservation Council, p.1.
53
Submission 065: BP Australia, p.2.
54
Submission 073: Australian Petroleum Production and Exploration Association, p.16.
55
Submission 073: Australian Petroleum Production and Exploration Association, p.16.
56
Submission 073: Australian Petroleum Production and Exploration Association, p.25.
46
limit choices properly made by the project proponents to respond to the market created by the emissions trading
scheme; they pose significant risk of arbitrarily burdening projects with unnecessarily high costs, are likely to
duplicate [CPRS] responses and offer little prospect of a net environmental or economic benefit either to the
developer or the community.57
8.40
The Government of Victoria also commented that:
Once a ‘cap’ is set under the CPRS, there is no environmental benefit to be gained from assessing greenhouse
gas emissions associated with a proposal, as reducing the emissions associated with the proposal will just make
emissions ‘permits’ available for other polluters.’58
8.41
This view was supported by the findings of the Senate Select Committee on Climate Policy, which
noted that:
The Productivity Commission, in their submission to the committee, stated ‘under a ‘pure’ ETS with a binding
quota, the quantum of emissions is fixed. In this case, other abatement policies aimed at sectors covered by the
ETS could change the composition of emissions reductions but not total emissions.’ In other words, additional
actions can only change the composition of the emissions mix, or influence the cost of abatement (including
easing costs for particular parts of the community), or achieve other policy goals, such as industry
development.59
Senate inquiry into the operation of the EPBC Act
8.42
The Senate Inquiry’s Terms of Reference required the Committee to examine the Act’s ‘effectiveness
of responses to key threats identified within the EPBC Act, including … climate change.’ 60
8.43
The Committee recommended:
that the appropriateness of a greenhouse trigger under the Act and the nature of any such trigger, should it be
required, be carefully considered in light of the findings of the independent review and in the context of the
government’s overall response to climate change, in particular the CPRS.61
8.44
In reaching this recommendation the Committee’s report made a number of key findings including
that:

the ‘significance test’ does not allow for easy consideration of greenhouse gas emissions because
these emissions only impact on protected matters in an indirect and cumulative sense;

introducing a greenhouse gas trigger may have implications in the context of the CPRS and these
must be carefully considered. The Committee also noted that the proposed CPRS will define the
government’s primary framework for action on climate change and, accordingly, the role, scope
and operation of a greenhouse gas trigger in the Act would need to be considered in light of the
final design of that scheme; and

greenhouse gas emissions are a listed key threatening process under the Act, but a threat abatement
plan has not been developed.
8.3.3 Discussion of key points
Rationale for reducing climate change
8.45
57
Climate change is a threat, or more appropriately a risk, to biodiversity conservation as ecosystems and
species adapt to changed climatic parameters. However, the arguments that there is an obligation on the
Australian Government to implement a greenhouse gas trigger are not convincing. Despite the fact that
an effective greenhouse gas trigger may aid Australia’s international obligations as they relate to
greenhouse gas emissions, it is clear that there is no obligation to insert statutory triggers into any
particular piece of legislation. The Australian Government maintains the capacity to choose the most
Submission 120: Woodside Energy, p.2.
The Senate Select Committee on Climate Policy, Report (2009) http://www.aph.gov.au/senate/committee/climate_ctte/report/index.htm at
18 June 2009, para [5.10].
59
The Senate Standing Committee on Environment, Communications and the Arts, The operation of the Environment Protection and
Biodiversity Conservation Act 1999: Terms of Reference (2009) http://www.aph.gov.au/senate/committee/eca_ctte/epbc_act/tor.htm at 4
May 2009, s.2(d).
60
The Senate Standing Committee on Environment, Communications and the Arts, The operation of the Environment Protection and
Biodiversity Conservation Act 1999: First report (2009) http://www.aph.gov.au/senate/committee/eca_ctte/epbc_act/report/report.pdf at 4
May 2009, Recommendation 2.
61
The Senate Standing Committee on Environment, Communications and the Arts, The operation of the Environment Protection and
Biodiversity Conservation Act 1999: First report (2009) http://www.aph.gov.au/senate/committee/eca_ctte/epbc_act/report/report.pdf at 4
May 2009, Recommendation 2.
58
Independent review of the Environment Protection and Biodiversity Conservation Act 1999: interim report
http://www.environment.gov.au/epbc/review/publications/interim-report.html
effective means of mitigation, which it has indicated is an emissions trading scheme in the form of the
CPRS.
8.46
It was argued in submissions that the lack of a greenhouse gas trigger was a major shortcoming in the
Act, as climate change is a significant threat to biodiversity and the objects of the Act are to allow for
biodiversity protection and environmental conservation. This does not recognise that the threat of
climate change is fundamentally different to the other threats to biodiversity. This is due to the long lag
time between emission and impact; the strongly cumulative nature of the impacts and the global
dimensions of the problem; and the need for major economic and environmental reforms, and probably
societal reforms, to achieve adequate mitigation. Therefore it may not be appropriate to treat climate
change mitigation under the same legislation as that controlling threats to biodiversity; alternatively, it
may be argued that climate change is of such significance that it should be addressed in its own piece
of legislation, not just as part of the EPBC Act.
8.47
Conversely, climate change is a national issue with potentially national-scale impacts on biodiversity
and the environment in general. It needs national-scale and uniform responses. The argument that ‘if
climate change is not a matter of national environmental significance, what is?’ has considerable
power.
CPRS and EPBC Act mitigation
A greenhouse gas trigger
8.48
As noted earlier, most debate surrounding greenhouse mitigation is now focusing on market based
mechanisms.
8.49
The Bill for the Australian Government’s proposed CPRS has been tabled and, at the time of writing, is
currently before Parliament – although the public debate suggests it is unlikely to have a smooth
passage through the Parliament, if at all. There is also uncertainty about the final details for the CPRS.
8.50
The Senate Inquiry recommended that this review examine the appropriateness of a greenhouse gas
trigger in the context of the Government’s response to climate change, in particular the CPRS. The test
for determining the appropriateness of a greenhouse trigger, or indeed other greenhouse abatement
mechanisms, is whether it will be complementary to the CPRS.
8.51
The Australian Government has adopted principles which identify types of measures that will be
complementary to the CPRS. These include:

mechanisms which will target market failures not expected to be addressed by the scheme, or that
impinge on its effectiveness;

mechanisms which adhere to principles of efficiency, effectiveness, equity and administrative
simplicity;

mechanisms which are targeted to market failures which are amenable to government action and, in
the case of regulatory measures, are guided by best practice regulatory principles;

mechanisms targeted to manage impacts for particular sectors of the economy; and

mechanisms which are implemented by the level of government best able to deliver the measure.62
8.52
Measures that have been identified as complementary include energy efficiency measures, mandatory
renewable energy targets, and carbon capture and storage. The Australian Government also
commissioned a review into complementary measures.63
8.53
The Productivity Commission in its submission to the Garnaut Review noted that the CPRS should be
the primary mechanism by which significant cuts in greenhouse gas emissions should be delivered. 64 It
is suggested that ‘this is because the market is likely to achieve an efficient outcome through the
decentralised price-responsive actions of everyone in the economy’. 65
8.54
The proposals that have been put forward to this review for a wide-ranging regulatory regime achieved
through the imposition of a greenhouse gas trigger are inconsistent with the reliance on the price signal
that lies at the heart of the CPRS. There may be an argument for a greenhouse trigger where there is no
Carbon Pollution Reduction Scheme: Australia’s Low Pollution Future, White Paper, vol 1.
The Strategic Review of Australian Government Climate Change Programs (Wilkins Review) (2008)
http://www.finance.gov.au/publications/strategic-reviews/index.html at 28 May 2009.
64
Productivity Commission, Garnaut Review Submission (2008) http://www.pc.gov.au/research/submission/garnaut at 28 May 2009.
65
As is explained in detail in Andrew Macintosh ‘A greenhouse trigger: where did it go and what of its future’ in Tim Bonyhday and Peter
Christoff (eds), Climate Law in Australia (2007) pp.44-56.
62
63
price signal, for example emissions from native vegetation clearance. However, if a CPRS is
introduced in the relatively near future, this review would not support the creation of a broad based
greenhouse gas trigger.
8.55
The observation made in the Victorian Government submission that in a permit-based system,
reduction in emissions through project approvals simply frees up permits for others is worth
considering.
8.56
Both sides of Australian politics have played with the idea of a greenhouse gas trigger. 66 In 2000 the
then Environment Minister consulted the States on a potential trigger based on controlled actions
emitting greater than 500,000 tonnes of carbon dioxide equivalent per year. As recently as 2006 the
Australian Labor party also introduced from Opposition a proposal for a trigger based on controlled
actions emitting greater than 500,000 tonnes of carbon dioxide equivalent per year. The Australian
Greens have proposed three different triggers with thresholds of 50,000, 500,000 and 100,000 tonnes
of carbon dioxide equivalent per year.
Operation of a greenhouse gas trigger prior to the CPRS
8.57
If there is to be a delay in effective establishment of the CPRS then there is a much stronger case for
introduction of a greenhouse gas trigger to drive down emissions in the interim period.
8.58
If this path were pursued then consideration should be given to ‘sunsetting’ the obligation so as to
avoid potentially perverse outcomes once a market mechanism was operational.
Other proposals
8.59
It is noted that there are two other proposals for greenhouse mitigation under the EPBC Act, including
a prohibition on designated proposals and an offset scheme for land clearance.
8.60
While not truly complementary to the CPRS, specific prohibitions may be warranted if there are strong
public policy grounds for preventing certain greenhouse intensive activities. A 10-year moratorium on
new coal fired power stations without carbon capture and storage is a possible example of this
prohibition. This moratorium may aid achievement of the goal of stabilisation of atmospheric
concentrations of greenhouse gases at around 450 parts per million of carbon dioxide equivalent, which
is strongly in the national interest. The question remains as to whether this is the most appropriate way
to achieve such a goal, especially as carbon capture and storage is a not yet proven technology.
8.61
Proposals for mechanisms which help lock up green carbon, such as an offset scheme for land
clearance, are more likely to be complementary to the CPRS. This is in part because the CPRS does not
purport to cover carbon losses from land clearance and deforestation.67 It is also notable that the
Australian Government’s White Paper on the CPRS made plain that the Government was looking for
mitigation measures where the CPRS does not apply. It stated:
If sources of emissions cannot be covered, the Government will, where practical, apply alternative mitigation
measures. The purpose of such measures will be to ensure that firms with uncovered sources of emissions make
an equivalent contribution to achieving Australia’s national emissions reductions objectives and have incentives
to undertake abatement.68
8.62
The obvious area to consider is land clearance which currently accounts for a significant level of
Australia’s greenhouse gas emissions and is not covered by the CPRS. Imposing an equivalent carbon
price on polluters responsible for land clearance could be both equitable and efficient.
8.63
One means of doing so would be to establish an offset scheme for land clearance. While the
government put forward a range of arguments for why deforestation should be excluded from the
CPRS,69 these arguments are less applicable to an offset scheme, as the offset scheme would be much
simpler than the CPRS for landholders to comply with and government to administer.
8.64
A potential scheme could apply above a certain threshold. The value of the offset required could be set
periodically by Government to give certainty and, as envisaged by the CPRS White Paper, would be
roughly the same as the ‘price’ under the CPRS. The offset would be based on carbon content of the
land cleared – with regulations identifying different categories of vegetation, either using existing
categories developed by the National Carbon Accounting System or modifying these categories.
As is explained in detail in Andrew Macintosh ‘A greenhouse trigger: where did it go and what of its future’ in Tim Bonyhday and Peter
Christoff (eds), Climate Law in Australia (2007) pp.44-56.
67
Carbon Pollution Reduction Scheme: Australia’s Low Pollution Future, White Paper.
68
Carbon Pollution Reduction Scheme: Australia’s Low Pollution Future, White Paper, vol 1, 6-6, see also 6-45, 6-62.
69
Carbon Pollution Reduction Scheme: Australia’s Low Pollution Future, White Paper, vol 1, 6-61.
66
Independent review of the Environment Protection and Biodiversity Conservation Act 1999: interim report
http://www.environment.gov.au/epbc/review/publications/interim-report.html
8.65
While the statutory provisions for determination of the price and the payments might have to be in a
separate piece of legislation for technical constitutional reasons, the EPBC Act could be amended so
that the revenue generated by the offset payments would go into a new statutory fund to be used to
purchase land and grow trees.
Climate change adaptation
Key points raised in public submissions
8.66
There were fewer submissions on climate change adaptation than on greenhouse gas emission
mitigation.
8.67
Submissions in relation to climate change adaptation discussed:

the likely biodiversity implications of climate change and the consequences for biodiversity
management;

changes to existing provisions of the EPBC Act to better manage climate change impacts; and

the potential for fundamental shifts in the operation of the Act in biodiversity management.
Biodiversity implications of climate change
8.68
Submitters identified potential impacts of climate change on biodiversity, and suggested ways that
these increased pressures could be managed. Birds Australia believed that ‘climate change will
exacerbate the effects of fragmentation on most taxa through range alterations and altered hydrological
and weather regimes.’70 The National Parks Association of Queensland, quoting the Queensland EPA,
similarly noted that ‘loss of many species and changes in composition and functioning of ecosystems is
inevitable.’71 The Office of the Environmental Sustainability Commissioner (Victoria) submitted that
climate change may lead to increased pressures from extreme fire and flood events, as well as a hotter,
drier and more variable climate.72 The Invasive Species Council (Australia) noted the synergistic
interaction between invasive species and climate change, and that climate change will potentially
expand the range of invasive species and their impacts on biodiversity. 73
8.69
The ANEDO contended further that, in light of climate change, ‘biodiversity management will become
increasingly difficult as species and ecological communities change their geographic distributions,
abundances and interactions.’74
8.70
Other submitters noted that the implications of climate change for biodiversity were subject to
considerable debate.75 The Nature Conservation Council of NSW noted that:
it appears that the traditional approach of conservation – where efforts have been made to preserve individual
species in specific areas/landscapes – does not address the fact that it is very difficult to predict how species and
ecosystems will respond to climate change.76
8.71
Submitters indicated that this additional pressure required some form of action. The NSW young
Lawyers submitted that:
Given the importance of climate change as one of the two most important issues affecting conservation of
biodiversity in Australia, it is essential that the current review process consider how climate change may be
better addressed, particularly in the conservation of biodiversity.77
8.72
70
Submissions raised a number of ecological functions that they believed should be the focus of the Act,
or afforded additional protection in light of the increasing pressures of climate change. These included:

habitat in the range of species affected by climate change; 78

habitat connectivity;79
Submission 066: Birds Australia, p.5.
Submission 100: National Parks Association of Queensland, p.2. The concern that climate change will lead to a greater number of species
extinctions was put forward in Submission 145: Office of the Commissioner of Sustainability and Environment (Victoria).
72
Submission 145: Office of the Commisioner of Sustainability and the Environment (Victoria).
73
Submission 166: Invasive Species Council (Australia). The concern about invasive species and climate change was also put forward in
Submission 181: WWF.
74
Submission 189: Australian Network of Environmental Defender’s Offices , p.39.
75
Submission 112: Australian Recreational and Sportfishing Industry Confederation, p.7.
76
Submission 188: Nature Conservation Council of New South Wales, p.2.
77
Submission 074: New South Wales young Lawyers Environmental Law Committee, p.7.
78
Submission 066: Birds Australia.
71

climate refugia sites;80

wildlife corridors;81

mosaics;82

trigger points (‘areas where species and assemblages are found that have potential to radiate out
from a localised point in response to changing climate’);83

critical habitat;84

representative ecosystems;85

key functional species;86

large patches of vegetation;87 and

structural complexity.88
Amending the EPBC Act to improve adaptation mechanisms
The CSIRO contended that ‘the current Act does not provide a long-term basis for addressing
biodiversity conservation in the context of climate change’. 89 Submitters noted a general need to
address these issues in Act including that:
8.73

‘consideration should be given to improving the capacity and flexibility of the Act to respond to
environmental pressures in a fastchanging environment;’ 90 and

‘climate change considerations should be explicitly brought into decisionmaking throughout the
EPBC Act.’91
Listing
8.74
It has been suggested that the additional pressures of climate change create a need to be ‘forward
thinking to include species and communities for listing that are “potential” candidates even if not
currently listed, based on best scientific evidence.’92
8.75
The Humane Society International recommended that:
The predicted impacts of climate change on a species or ecological communities should be considered explicitly
when deciding whether to list them as threatened. Such an approach would assist the Government [to] deal with
the threat climate change poses to biodiversity in a pre-emptive rather than reactive manner ... Given that climate
change presents such a grave and pervasive threat to biodiversity, it would be prudent for the EPBC Act to
become more pre-emptive in dealing with it.93
8.76
It was suggested that future listing of ecological communities may be problematic, as the composition
of a particular community may change due to the impacts of climate change. CSIRO noted that ‘the
logic behind using a fixed list of communities to assess conservation status (as assumed in the current
Act) is likely to fail under climate change.’94
8.77
The ANEDO further proposed a ‘climate change vulnerability assessment’ as a required step when
determining the listing of a species or ecological community. 95
79
Submission 066: Birds Australia.
Submission 100: National Parks Association of Queensland; Submission 105: Noosa Integrated Catchment Association and; Submission
182: Humane Society International – who submit that the definition of critical habitat should be expanded to include climate refugia.
81
Submission 100: National Parks Association of Queensland; and Submission 105: Noosa Integrated Catchment Association.
82
Submission 100: National Parks Association of Queensland.
83
Submission 100: National Parks Association of Queensland, p.2.
84
Submission 135: CSIRO, p.3.
85
Submission 189: Australian Network of Environmental Defender’s Offices.
86
Submission 189: Australian Network of Environmental Defender’s Offices.
87
Submission 189: Australian Network of Environmental Defender’s Offices.
88
Submission 189: Australian Network of Environmental Defender’s Offices.
89
Submission 135: CSIRO, p.2.
90
Submission 181: WWF, p.25.
91
Submission 182: Humane Society International, p.4.
92
Submission 018: Ipswich City Council, p.3.
93
Submission 182: Humane Society International, p.25.
94
Submission 135: CSIRO, p.2.
95
Submission 189: Australian Network of Environmental Defender’s offices.
80
Independent review of the Environment Protection and Biodiversity Conservation Act 1999: interim report
http://www.environment.gov.au/epbc/review/publications/interim-report.html
Environmental Impact Assessment (EIA)
8.78
Submissions proposed a number of suggested changes to the EIA provisions in the Act to better engage
with climate change including:

that EIA should engage with scenario planning as a way of dealing with climate change impacts on
biodiversity;96

that, in light of climate change, the future feasibility of projects should be assessed— an example
was provided of a dam that would not fill with water as a consequence of changing climate; 97

that offsetting under the Act needs to explicitly consider the value of enhanced habitat connectivity
in dealing with climate change,98 or that offsets should not be allowed to compromise the resilience
and functionality of ecosystems;99

that increased biodiversity pressures from sea level rise needs to be considered;100

that in the face of climate change there needs to be an altered approach to the ‘significant impact’
test whereby ‘the onus of proof in the Act should be reversed so that only actions which can be
shown to have no significant impact on matters of national environmental significance should be
contemplated’;101 or

that there could be a move to ‘site based assessment’ which could then consider the importance of
the site for adaptation, including whether it could be a climate refuge or a wildlife corridor.102
General improvement
8.79
It was suggested that the unpredictability of climate change means that specifying EPBC Act
amendments to manage uncertain climate change would not be a productive approach. While some
submissions identified climate change as a ‘new challenge’ for biodiversity protection, 103 the
counterpoint was put forward that climate change will be an additional pressure on top of the existing
stressors for biodiversity and should be viewed as such. The Office of the Environmental Sustainability
Commissioner (Victoria) submitted that: ‘Climate change threatens biodiversity directly, by affecting
ecosystem processes and habitats, and indirectly, by compounding the impacts of existing and ongoing
pressures on biodiversity’. 104
8.80
The implication is that existing biodiversity tools need to be better utilised and that existing threats and
impacts need to be better managed rather than that new tools be developed. The Invasive Species
Council suggested that climate change ‘threats highlight the current lack of effective regulation and
management of invasive species’.105 This view was also reflected in a biodiversity workshop held by
this review.
8.81
Australian Recreational and Sportfishing Industry Confederation conversely argued that:
the threat of climate change should not be used as an excuse to further restrict recreational fisheries either
through extension of no fishing zones or through listing of recreational fishing as a key threatening process until
such time as scientific evidence proves this.106
Fundamental shifts
8.82
The Green Institute claimed that in light of climate change there needs to be a ‘paradigm shift’ so that
environmental damage is no longer sanctioned, but rather stopped. The Institute further submitted that
there needs to be a shift to ‘a regime based on attempting to recover rather than prevent threatened
species and communities,’ to ensure efficiency, risk minimisation and reduce expenses. 107
8.83
The Green Institute proposed that ‘climate change also requires reappraisal of much of the thinking that
underpins conventional approaches to biodiversity protection. Landscape connectivity becomes
96
Submission 105: Noosa Integrated Catchment Association.
Submission 129: Greater Mary Association.
98
Submission 066: Birds Australia.
99
Submission 189: Australian Network of Environmental Defender’s Offices, p.59.
100
Submission 199: Government of South Australia.
101
Submission 153: The Wilderness Society, p.8.
102
Submission 189: Australian Network of Environmental Defender’s Offices.
103
Submission 188: Nature Conservation Council NSW, p.8.
104
Submission 145: Office of the Environmental Sustainability Commissioner (Victoria), p.3.
105
Submission 166: Invasive Species Council (Australia).
106
Submission 112: Australian Recreational and Sportfishing Industry Confederation, p.7.
107
Submission 162: The Green Institute, p.5.
97
critically important in the face of uncertainty about future climate and habitat availability for protecting
genetic, species and ecosystem diversity and function.’ 108
8.84
Several environmental groups introduced the notion of ecological triage (that is, only protecting
species that have a chance of survival). The Nature Conservation Council submitted that ‘the national
conservation approach may need to change to thinking about how opportunities can best be provided
for as many different species as possible to survive climate change’. 109
8.85
ANEDO and the CSIRO also called for a rethinking of broader biodiversity conservation policy, and a
possible move to ecological triage because policy objectives including protecting all species in situ will
be impossible to achieve.110
8.86
ANEDO provided several key principles which they believe need to underpin the EPBC Act’s response
to climate change. Firstly, it proposed that there needs to be greater adaptive management under the
Act and that the Act will need to recognise and manage uncertainty. Secondly, it proposed that there is
a need to prioritise protection and recovery methods and to consider triage. Finally, it proposed the
possibility of assisted migration of particular species to allow for their survival. 111
8.87
The CSIRO submitted that:
The way native species and ecosystems, and threats to them, will respond to climate change will have inevitable
consequences for the conservation of biodiversity.
The changing nature of biodiversity dictates we must reformulate the core objects of biodiversity conservation.
The current (implicit) objective of preventing any change to biodiversity (in selected places) will become
untenable. We will need to shift to something like ‘managing the change to minimise the loss’. We need to get
there, but we don’t know how to do it yet. 112
8.88
During public consultations for this review, the CSIRO indicated that in light of climate change, the
EPBC Act could continue to function effectively for approximately another 10 years before it would
need major reforms. A delay in reforming the Act may have benefits, as the science regarding the
impacts of climate change on biodiversity is still developing. 113
Landscape approaches
8.89
Following calls for enhanced habitat connectivity to shield species from climate change implications,
submitters suggested that landscape scale assessments would enable the Commonwealth to take an
ecosystems-based approach to decision-making in relation to biodiversity protection, protected areas
strategies, threatened species recovery and threat abatement. The Colong Foundation for Wilderness
emphasised the importance of large tracts of wilderness as having the required ecological resilience to
deal with climate change pressures.114 The ANEDO also recommended moving to an ‘ecosystem based
approach’ and focusing on ‘protecting key functional species and diversity within functional groups’ to
increase ecosystem resilience.115 It further submitted that this would involve the identification, listing
and protection of keystone species rather than all threatened species.
Senate inquiry into the operation of the EPBC Act
8.90
The Senate Inquiry did not discuss climate change adaptation beyond consideration of climate change
as a key threatening process under the Act.
Discussion of key points
8.91
COAG has produced a framework on climate change adaptation which recognises that:
Many ecosystems are likely to be adversely affected by increasing temperatures, changes to rainfall patterns, the
spread of pests and weeds, changed fire regimes and sea–level rise. Higher temperatures, possible changes in
ocean currents, and potential changes in ocean chemistry are likely to affect marine ecosystems. Impacts on
biodiversity will affect ecosystem services such as water filtration, soil quality and shelter.
Submission 162: The Green Institute, p.5. The idea of a ‘wholesale revision of the Act in order to address climate change’ is also
suggested in Submission 188: Nature Conservation Council NSW, p.2.
109
Public consultation - Dr Mark Lonsdale, CSIRO, pers. comm. (Canberra, 17 February 2009).
110
Submission 189: Australian Network of Environmental Defender’s Offices; Submission 135: CSIRO.
111
Submission 189: Australian Network of Environmental Defender’s Offices.
112
Submission 135: CSIRO, 3
113
Public consultation - Dr Mark Lonsdale, CSIRO, pers. comm. (Canberra, 17 February 2009).
114
Submission 119: Colong Foundation for Wilderness.
115
Submission 189: Australian Network of Environmental Defender’s Offices, p.40.
108
Independent review of the Environment Protection and Biodiversity Conservation Act 1999: interim report
http://www.environment.gov.au/epbc/review/publications/interim-report.html
Reducing other stresses on biodiversity, such as overuse and pollution, is likely to ameliorate species loss,
system degradation and range contraction due to climate change. Healthy ecosystems are more resilient to
climate change impacts and able to ‘bounce back ’. Some ecosystems are particularly vulnerable such as coral
reef systems, coastal wetlands (including Kakadu) and saltmarshes, alpine areas, rainforests, fragmented
terrestrial ecosystems and the kwongan heathlands of south–west Western Australia.
Most of Australia’s World Heritage properties are listed for their natural heritage values and are likely to be
vulnerable to the impacts of climate change.116
8.92
This review generally agrees with this position, and notes that there is a need to develop better systems
to protect biodiversity in light of the additional pressure of climate change.
8.93
As discussed above, there is a dispute between submissions who advocate that specific adaptation
mechanisms be inserted into the Act and those who support better use of existing mechanisms or an
improvement in the status quo of biodiversity protection. This review is considering a number of
measures that will provide for better protection of biodiversity in general, such as the use of landscape
scale assessments. The benefits of specific mechanisms which allow for climate change adaptation will
depend on the merits of each proposed measure and these will need to be explored further.
8.94
Greater context for the proposals made above can be found in the relevant chapters of the interim
report, including:
116

threatened species and ecological communities (Chapter 12);

biodiversity conservation,, recovery planning and threats management (Chapter 13);

environmental impact assessment (Chapter 4); and

strategic assessments and bioregional planning (Chapter 10).
COAG, National Climate Change Adaptation Framework (2007) http://www.coag.gov.au/coag_meeting_outcomes/2007-0413/docs/national_climate_change_adaption_framework.pdf at 4 June 2009.