Environment and Sustainable Development 5 Minute Fix 37: climate change obligations, renewables, greenwashing

26 Apr 2023
5 minutes

Climate change

International: Milestone UN resolution seeks International Court of Justice opinion on States' obligations on climate change

On 29 March 2023, the General Assembly adopted by consensus a resolution requesting that the International Court of Justice hand down an advisory opinion clarifying the obligations of States regarding climate change. The opinion, which will not be legally binding but likely to be cited in court cases, is to focus on the:

  • legal obligations of States under international law to protect the environment and climate system from anthropogenic emissions of greenhouse gases; and
  • legal consequences for States that, “by their acts and omissions”, have caused significant harm to the climate system with respect to States, and in particular, small island developing States, and people of present and future generations.

It is understood that the opinion is likely to be issued within the next 12 months.

Commonwealth: Proposed changes to NGER scheme: have your say

The Department of Climate Change, Energy, the Environment and Water is seeking submissions on proposed changes to the National Greenhouse and Energy Reporting Scheme (NGER Scheme) which are proposed to be implemented through the National Greenhouse and Energy Reporting (Measurement) Amendment (2023 Update) Determination 2023.

The proposed changes to the NGER Scheme are discussed in the Consultation Paper and include:

  • the introduction of an optional, supplementary ‘market-based method’ for determining emissions associated with the consumption of electricity (‘scope 2" emissions);
  • revising Method 1 for estimating emissions of methane from Queensland open cut mines to reflect improvements in data availability and analysis (which saw Queensland's methane emission factor increase from 0.23 to 0.31 CO2 per tonne of run of mine coal production);
  • an update to Method 1 for estimating methane released from landfills (other than from flaring of methane); and
  • creation of two new fuel types: renewable paraffinic diesel and renewable paraffinic kerosene.

The amendments are proposed to commence on 1 July 2023 and would apply to NGER reports submitted by 31 October 2024 for the 2023–24 NGER reporting year.

Submissions on the proposed changes to the NGER Scheme can be made until 28 April 2023 in the manner prescribed here.

QLD: Inquiry into Bill proposing 75% emissions reduction by 2030, net zero emissions by 2035

On 15 March 2023, the Private Member’s Queensland Climate Transition Bill 2023 was introduced into the Queensland Parliament.

The objective of the Bill is to support Queensland in meeting its obligations under the Paris Agreement (helping to keep a global temperature rise of <2°C above pre-industrial levels this century) by reducing scope 1, 2 and 3 greenhouse gas emissions. The Bill also proposes to establish a new independent statutory authority, the Queensland Climate Transition Authority (QCTA), to develop and implement a strategic climate transition plan.

Queensland's state-wide emissions reduction targets are presently a reduction of 30% by 2030 and net zero by 2050. The Bill proposes dramatic new state-wide emissions reduction targets, including a 75% reduction in emissions on 2005 levels by 2030 and net zero emissions by 2035 to be achieved by:

  • immediately prohibiting the making of an application for the approval of any authority that permits coal, gas or oil mining and activities; and
  • establishing a fossil fuel exports reduction target to phase out exports of coal, oil and gas extracted or produced from Queensland by 31 December 2030.

It is proposed that the QCTA would be required to develop a Queensland Climate Transition Strategic Plan to outline how to achieve the reductions targets, while ensuring employment stability and income security for affected workers and communities involved in or affected by coal, oil and gas extraction for export. QCTA would be expected to finalise the Plan or before 31 December 2024.

If passed, the QCTA would also have significant powers over fossil fuel authorities including the power to amend a fossil fuel authority in any way, including by imposing conditions on the authority or to cancel the authority.

The Bill has been referred to the State Development and Regional Industries Committee for consideration. Submissions on the Bill can be made until 5:00pm on Friday 5 May 2023. The Committee is due to table its report on 15 September 2023.

WA: Revised GHG emissions guideline released

On 5 April 2023, the Western Australian Environmental Protection Authority (WA EPA) released its revised Environmental Factor Guideline – Greenhouse Gas Emissions, which was first published in April 2020. The revision has followed a 12-month review which commenced in July 2021 and included an 8-week consultation period.

The purpose of the Guideline is to outline how and when the greenhouse gas (GHG) emissions factor is considered by the WA EPA in the environmental impact assessment process for proposals referred to it under Part IV of the Environmental Protection Act 1986 (WA).

Some of the key changes in the revised 2023 version of the Guideline are:

  • Nitrogen trifluoride (NF3) has been added as a new GHG emission category.
  • The WA EPA will now take into account other existing laws and statutory decision-making processes to determine whether a proposal meet the WA EPA's objectives. This aims to avoid unnecessary duplication of regulation for proponents, such as under the Safeguard Mechanism.
  • The Guideline now provides more detailed guidance to proponents on what information the WA EPA will require to assess the GHG emissions of a proposal and their effects on the environment. This includes the addition of further mechanisms to strengthen the transparency and clarity of information and data provided by proponents on their proposals (ie. regarding emission estimates and overall management of GHG emissions produced by proposal).
  • Proponents are still required to develop a Greenhouse Gas Environmental Management Plan (GHG EMP). However, this GHG EMP must specify how proponents will meet the WA EPA's objectives, including achieving "deep, substantial and sustained emissions reductions" this decade and "net zero emissions no later than 2050 along a linear trajectory (at a minimum) from 2030". Most notably, if proponents cannot practicably achieve the WA EPA's minimum expectations for emission reductions, they will need to "clearly justify why" this is unachievable to the EPA. A new Greenhouse Gas Environmental Management Plan Template is available for proponents to use, which will be updated periodically by the WA EPA.
  • Proponents are directed to conduct an independent expert review of best practice measures which can be adopted to achieve the WA EPA's objectives. This is intended to be undertaken as part of the proponent's GHG EMP. The revised Guideline has further emphasised the need for proponents to consider best practice measures to avoid and minimise environmental impacts from GHG emissions.
  • With respect to mitigating emissions, the WA EPA now expects proponents to apply best practice measures to avoid and reduce scope 1 emissions, including through the proposal's facility design, technology choice, operation and closure.
  • Proponents should only utilise, as far as practicable, carbon offsets “as a last resort”, where residual emissions cannot be avoided or to account for emissions which exceed reduction commitments or targets. Any carbon offsets used by proponents should "conserve, preserve, protect, enhance and manage the WA environment".

This Guideline will be reviewed by the WA EPA in five years, to keep up to date with the latest climate science and policies.


Commonwealth: The state of hydrogen mapped out in new report released

In April 2023, the Federal Government published its 2022 State of Hydrogen report. Under the National Hydrogen Strategy 2019, the Federal Government committed to undertake annual reviews of Australia’s clean hydrogen industry development performance.

The National Hydrogen Strategy sets a vision for a clean, innovative, and competitive hydrogen industry and aims to position Australia as a global industry leader in Hydrogen by 2030, while recognising clean hydrogen as a key part of Australia's plan to reach net zero emissions by 2050.

The report relevantly maps out:

  • domestic and international decarbonisation opportunities;
  • domestic and global regulatory frameworks for clean hydrogen;
  • key areas that governments in Australia are successful in or could build upon to advance the clean hydrogen industry; and
  • the path ahead for the hydrogen industry in Australia.
Commonwealth: CSIRO releases Renewable Energy Storage Roadmap

The CSIRO has released the Renewable Energy Storage Roadmap which is its report on the state and future of Australia achieving net zero emission targets while maintaining a reliable and affordable supply of electricity.

The Roadmap is detailed and highlights key areas for development and investment from stakeholders, industry and government. It uses a scenario-based approach and canvases Australia’s demand for renewable energy storage under net zero, the energy storage technology landscape, the sectoral energy storage requirements and the strategic priorities for energy storage, including energy market considerations and other technology and ecosystem recommendations.

To achieve net zero, the Roadmap provides that this will be driven by an electricity generation mix dominated by wind and solar, increased electrification in end-use sectors, including transport, industry and buildings, and increases in green hydrogen for domestic use and export. Although there are existing storage systems used to deliver energy from fossil fuels, the Roadmap provides that higher levels of renewables in Australia’s energy system will result in a greater requirement for renewable energy storage technologies.

VIC: Roadmap for offshore wind transmission released

VicGrid, the Victorian Government agency coordinating the planning and development of the Victorian renewable energy zones, launched the Offshore Wind Transmission Development and Engagement Roadmap late last month for consultation.

During 2023, VicGrid will progress from early planning into more detailed investigations and ongoing local engagement to identify preferred transmission project options to connect new offshore wind projects in Gippsland and Portland. The initial focus will be to develop transmission projects needed to coordinate offshore wind connections for the first target of at least 2GW generated by wind by 2032. Future targets of at least 4GW by 2035 and 9GW by 2040 mean more transmission infrastructure will be needed in Gippsland and Portland.

VicGrid is seeking community input to inform the approach to the Options Assessment Method to be developed in Phase 2 of this project. A survey can be completed here until 14 May 2023.

TAS: Bioenergy Vision to complement Tasmanian Renewable Energy Action Plan

Following consultation on the draft in early 2022, the Rockliff Liberal Government has now finalised its Bioenergy Vision for Tasmania to help further boost renewable energy credentials and help Australia transition away from the use of fossil fuels.

The Bioenergy Vision for Tasmania, released on 27 March 2023, aims "to embed bioenergy as a valued renewable resource for the Tasmanian economy, community, and environment as an aid to energy production, waste management and resource recovery and reduction of greenhouse gas emissions". Key aspects outlined in the Bioenergy Vision include:

  • the potential for bioenergy – the production potential and challenges for the bioenergy in Tasmania;
  • the benefits of developing Tasmania's bioenergy sector – including renewable energy production, reduction of greenhouse gas emissions, waste management and resource recovery, jobs and economic development; and
  • the Government's role – including procurement, awareness, exploring opportunities, developing a more sophisticated, mature and diverse bioenergy industry and ensuring an enabling environment.


NT: Release of the Strategic Regional Environmental and Baseline Assessment

On 18 April 2023 the Territory Government released the Beetaloo Sub-basin Strategic Regional Environmental and Baseline Assessment (SREBA). The Beetaloo SREBA is an integrated data collection program which provides information intended to facilitate appropriate decision making on the development of natural gas extraction in the Beetaloo region. The database includes information on the assessment of water and biodiversity resources and to inform land-use planning as well as baseline data to provide a reference for ongoing monitoring. It is the most comprehensive regional scientific study ever conducted in the Northern Territory and covers an area of 86,400 square kilometres.

The SREBA Framework outlines the key information outputs for each of the six study domains:

  • Water quality and quantity.
  • Aquatic ecosystems.
  • Terrestrial ecosystems.
  • Greenhouse gas emissions.
  • Environmental health.
  • Social, cultural and economic.

The Framework also illustrates potential application of key information outputs from each of the study domains to regional and project-level planning, assessment, regulation and monitoring. The information relating to each study domain is described in Baseline Reports and summarised in the SREBA Regional Report.

The release of the Beetaloo SREBA responds to 35 of the 135 recommendations made in the Scientific Inquiry into Hydraulic Fracturing in the Northern Territory. The Government has promised to implement all 135 recommendations prior to giving approval to any onshore gas production in the Territory.

Environmental, Social, and Corporate Governance (ESG)

Commonwealth: Senate inquiry into greenwashing: have your say

On 29 March, the Senate referred an inquiry into greenwashing to the Senate Standing Committee on the Environment and Communications for inquiry and report by 5 December 2023. The inquiry will investigate whether stronger more effective regulation of greenwashing is required in Australia, with a particular focus on the following as well as any other related matters:

  • the environmental and sustainability claims made by companies in industries including energy, vehicles, household products and appliances, food and drink packaging, cosmetics, clothing and footwear;
  • the impact of misleading environmental and sustainability claims on consumers;
  • domestic and international examples of regulating companies’ environmental and sustainability claims;
  • advertising standards in relation to environmental and sustainability claims; and
  • legislative options to protect consumers from greenwashing in Australia.

Submissions to the Committee can be made until 8 June 2023 in the manner prescribed here.


QLD: Proposed planning reforms: have your say on urban encroachment, DCPs and operational provisions

The Department of State Development, Infrastructure, Local Government and Planning (DSDILGP) is proposing reforms to clarify provisions, address operational issues, and improve inefficiencies in the Planning Act. The reforms focus on urban encroachment, development control plans (DCPs) and operational provisions. Separate consultation papers have been released on each of the three focus areas, with consultation open until 5 May 2023.

Consultation Paper 1: Improving Queensland's planning framework – proposed operational amendments

Key changes include:

  • broadening the scope of the Minister's powers to direct amendments to a local planning instrument or designation;
  • providing a timeframe for an assessment manager or responsible entity to assess change representations made by an applicant;
  • modernisation of the notice and submission provisions to remove hard copy publication requirements; and
  • clarification that the Applicant bears the onus of proof in a P&E Court submitter appeal for a change application.

Consultation Paper 2: Supporting regional and State significant businesses through the urban encroachment provisions in the planning framework

The amendments propose:

  • for urban encroachment registration, to create a new change process to enable premises to modify their existing urban encroachment registration to address changes to surrounding land uses;
  • to simplify the renewal process and remove the requirement to re-register where a premises obtains a new approved Environmental Approval and/or Development Approval; and
  • include a minimum period for public consultation for urban encroachment applications (both new and changed).

Consultation Paper 3: Supporting and improving the operation of Development Control Plans

Changes are proposed to validate previous development approvals given in DCP areas to ensure their continued lawful operation in response to a recent judgement of the Planning and Environment Court. There is clarification that the decision framework under the Planning Act applies to development in DCP areas.


ACT: New Heritage Council appointed during comprehensive review of heritage framework

A new Heritage Council has been appointed under the Heritage Act 2003 (ACT) for an interim period to lead the protection and management of natural, historic and First Nationals heritage in the ACT. The Council has been appointed for not less than a year to replace the previously dissolved Council during the current comprehensive review of the heritage arrangements in the ACT including the legislative framework in which the ACT Heritage Council and their supporting government agency operates. This is to ensure that Council activities which relate to the following can continue during the review:

  • identifying, assessing, conserving and promoting heritage places and objects in the ACT;
  • making decisions about the registration of heritage places and objects;
  • making decisions on heritage applications relating to proposed excavation and heritage impacts;
  • providing advice on works and development matters in accordance with the ACT's land planning and development system;
  • encouraging and assisting with appropriate management of heritage places and objects; and
  • encouraging public interest in, and awareness of, heritage places and objects in the ACT.

A preliminary review of the heritage framework occurred in 2021 and it is understood that there will be further consultation opportunities to the Council reform during 2023.

Environmental protection

QLD: Key changes have commenced for EAs, EIS process, executive officer liability, environmental harm thresholds and contaminated land

On 5 April 2023, the Environmental Protection and Other Legislation Amendment Act 2023 (EPOLA) commenced which makes a suite of regulatory and administrative amendments to the Environmental Protection Act 1994 (Qld) (EP Act); cooperative management agreements under the Wet Tropics World Heritage Protection and Management Act 1993 in response to a review of the Wet Tropics Management Plan 1998; and minor technical amendments to the Waste Reduction and Recycling Act 2011 and Land Title Act 1994.

The more significant changes to the EP Act include the following:

  • Environmental Authorities – There is now a mandatory requirement for public notification of any major amendments to an environmental authority for a resource activity. New EAs have also been introduced for trial activities and emergency situations.
  • EIS process – There are changes to the EIS submission process and a new decision point for the administering authority for an EIS prepared under the EP Act. A proponent for an EIS will now be required to submit, with the draft terms of reference, a summary of potential negative environmental impacts and the measures taken to avoid or minimise these. The chief executive must determine that the EIS cannot proceed if the chief executive is satisfied that the project meets certain grounds for rejection. There is a specified currency period of three years for an EIS assessment report, after which an extension must be sought
  • Executive Officers – The scope of executive officer liability is expanded such that executive officers can be liable for acts or omissions that occurred during their tenure but did not result in the commission of an offence until after they have left office.
  • Increased environmental harm thresholds – The threshold amounts for material environmental harm and serious environmental harm have increased, to $10,000 and $100,000, respectively. These amounts will be subject to indexation from 30 June 2023.
  • Contaminated land – The contaminated land provisions have been amended, including the environmental investigations process, voluntary inclusion by landowners of land on the management registers, and changes to the complaint process.
Special thanks to Sarah Gough (Brisbane), Madeleine Grant (Darwin), Tom Flower (Melbourne) and Isabella Fiolo (Perth) for their contribution to this edition.
Clayton Utz communications are intended to provide commentary and general information. They should not be relied upon as legal advice. Formal legal advice should be sought in particular transactions or on matters of interest arising from this communication. Persons listed may not be admitted in all States and Territories.