Environment and Sustainable Development 5 Minute Fix 29: climate change bills, environment as a human right, water resources

The Environment and Sustainable Development team
18 Aug 2022 Time to read: 5 MIN

The Environment and Sustainable Development 5 Minute Fix is a snapshot of need-to-know news on a range of ESD issues nationally. This edition focuses on the latest in climate change, sustainable development, planning and environmental protection.

Climate change

International: Mandatory climate reporting on the horizon for our neighbours across the ditch

Aotearoa New Zealand’s External Reporting Board have released its third and final Climate-related Disclosures Framework document for public consultation. The consultation document contains the exposure drafts of the three proposed standards that the Board intends to comprise the climate-related disclosure framework to be known as Aotearoa New Zealand Climate Standards.

From next year, reporting under the climate-related disclosure framework will become mandatory for climate reporting entities as defined under the Financial Sector (Climate-related Disclosures and Other Matters) Amendment Act 2021 (NZ) will be required to comply with the mandatory reporting.

The consultation period will end on 26 September 2022.

Commonwealth: New climate change bills referred for inquiry and report: have your say

The Climate Change Bill 2022 and the Climate Change (Consequential Amendments) Bill 2022 which we considered in a recent Insights have been referred to the Environment and Communications Legislation Committee by the Senate for inquiry and report by 31 August 2022. The Bill proposes to legislate the nation's commitment to reduce greenhouse gas emissions by 43% below 2005 levels by 2030, and net zero by 2050. Additionally, the legislation aims to strengthen accountability through an annual statement by the Minister for Climate Change to Parliament and tasks the independent Climate Change Authority to provide advice on Australia's progress towards these targets, and on what Australia's future targets should be.

Submissions can be made until 10 August 2022 in the manner prescribed here.

Commonwealth: New climate trigger bill to be introduced

The Environment Protection and Biodiversity Conservation Amendment (Climate Trigger) Bill 2020 was introduced in by Senator Hanson-Young to establish an Environment Protection and Biodiversity Conservation Act (EPBC Act) greenhouse gas trigger in 2020 and was subsequently referred to the Senate Environment and Communications Legislation Committee for inquiry and report by 27 February 2020. Following a number of extensions to the reporting date, the last of which was 2 August 2022, the bill lapsed immediately before commencement of 47th Parliament on 25 July 2022.

It is understood that Senator Hanson-Young will re-introduced a new version of the Climate Trigger Bill on September 5, the timing of which will coincide with the Senate Environment and Communications Legislation Committee report on the Climate Change Bills as discussed above.

ACT: ACT moves to phase out new natural gas connections

The Climate Change and Greenhouse Gas Reduction (Natural Gas Transition) Amendment Bill 2022 (ACT) was introduced into the Legislative Assembly on 4 August 2022. If passed, the Bill would phase out new natural gas connections, giving effect to the ACT Government’s climate agenda and emissions reductions targets. This would mean no new greenfield residential developments would be connected to gas mains and, by 2023, new gas connections will no longer be tenable for new infill developments. The bans will not prevent households from using gas cylinders, nor will they apply to 100% renewable gas connections.

WA: Draft revised Environmental Factor Guideline – Greenhouse Gas Emission our for consultation

The EPA WA is reviewing its Environmental Factor Guideline – Greenhouse Gas Emissions which is a guidance document that explains how GHG emissions are considered by the EPA in the environmental impact assessment (EIA) process. The aim of the current review is to address a range of issues considered by the EPA since the guideline was first published in April 2020.

The fundamental elements of the Guideline are proposed to remain the same, however a number of changes are proposed in relation to the following:

  • the greenhouse gas emissions of projects that are reasonably likely to exceed 100,000 tonnes CO2-e of scope 1 emissions in any year; or 100,000 tonnes CO2-e of scope 2 emissions in any year;
  • consideration of ‘deep and substantial reductions’ in WA’s emissions this decade and achievement of net zero by 2050, along a linear trajectory from 2030;
  • minimising the risk of environmental harm associated with climate change by reducing greenhouse gas emissions as far as practicable;
  • best practice design and operations to avoid and reduce their scope 1 emissions; and
  • reasonably practicable steps to reduce their scope 2 emissions, and consider what measures they can take to reduce scope 3 emissions.

As part of the review, the EPA is seeking submissions from key stakeholders and the community until 21 September 2022 in the manner prescribed here.

Sustainable development

International: A clean, healthy and sustainable environment is a human right says UN

On 28 July, the United Nations General Assembly adopted the landmark resolution 76/300, that recognises the right to a clean, healthy and sustainable environment as a human right and calls for greater global efforts to ensure that principle is upheld. The resolution was passed with 161 votes in favour and 8 abstentions.

The resolution calls upon member states and international organisations as well as business enterprises and other relevant stakeholders to adopt policies that ensure a clean, healthy and sustainable environment for all. Further, the resolution recognises the impact of climate change, unsustainable use and management of natural resources, pollution of air, land and water on the environment and the correlation to the enjoyment of a clean, healthy and sustainable environment.

While the resolution is not legally binding, it is likely that we will see this used as part of the ever increasing climate change legal challenges.

Planning

ACT: New bill to provide tree management and approval framework

The Urban Forest Bill 2022 was introduced into the Legislative Assembly on 3 August 2022 to give effect to ACT’s Urban Forest Strategy 2021-2045 and provide a legislative framework for effectively managing trees on both public and private land to accord with the Territory’s target of reaching 30% tree canopy by 2045. If passed, the Bill will replace the Tree Protection Act 2005 and will establish:

  • a register of significant trees with appropriate levels of protection;
  • approval requirements for tree damaging activities;
  • approval requirements for groundwork activities within the tree protection zone of a protected tree;
  • approval requirements for tree management plans;
  • ability to make directions with regard to tree protection matters; and
  • provide offences and enforcement provisions.

Environmental protection

Commonwealth: Significant impact guidelines for impact on water resources updated

The Significant Impact Guidelines provide overarching guidance to determine whether an action is likely to have a significant impact on a matter as contained in the Environment Protection and Biodiversity Conservation Act 1999 (EPBC Act).  The water trigger controlling provisions, contained in sections 24D and 24E of the EPBC Act, prohibit any action involving "coal seam gas development" or "large coal mining development", which is likely to have a significant impact on a water resource.

The Department of Climate Change, Energy, the Environment and Water (DCCEEW) has recently released an amended version of the Significant Impact Guidelines 1.3: Coal seam gas and large coal mining developments – impacts on water resources.

The most substantive change made in the latest version of the Guidelines is to reflect the Federal Court decision in Australian Conservation Foundation Incorporated v Minister for the Environment [2021] FCA 550, which broadened the scope of activities associated with coal mining projects caught by water trigger under the EPBC Act. This decision ultimately related to an action integral to the conduct of "large coal mining development", however it also discussed "coal seam gas development" to similarly broaden those scope of activities associated with this type of development.

Relevantly, the changes to the Guidelines:

  • expressly state that CSG development and large coal mining development relate to CSG extraction and coal mining activities respectively which include those activities that are so closely associated with extracting of CSG or coal as to be integral to those activities, or without which the relevant extraction could not be undertaken; and
  • expands the list of examples of activities that are likely to be considered an integral part of the extractive process to include:
    • construction, operation and decommissioning of open-cut and underground coal mines or CSG wells;
    • construction, operation and decommissioning of infrastructure to provide water supply for use in the extraction of CSG or coal, including the use of water in activities such as cooling cutting surfaces and mining equipment, or dust suppression;
    • disposal of water produced from coal mining or CSG extraction into streams/rivers;
    • construction of infrastructure to provide power necessary for the operation of a mine, including relocated power lines; and
    • construction of infrastructure to enable mining or CSG operation inputs which are integral to coal or CSG extraction to be received, and product, equipment or waste which are integral to coal or CSG extraction to be taken off the mine site.

The updated version of the Significant Impact Guidelines 1.3 should now be used when deciding whether an action which involves a CSG development or a large coal mining development has or is likely to have a significant impact on a water resource. Importantly, when deciding whether the water trigger controlling provisions apply:

  • proposed activities should be considered in terms of their relationship to the extraction of CSG or coal; and
  • where a proposed project is referred separately from a CSG development or large coal mining development – whether or not actions need to be considered under the water trigger will be determined by whether they are integral to the extraction of CSG or coal.

 

Special thanks to Grace Scanlon (Brisbane), Lauren Parnaby (Sydney) and Kate Wilkes (Perth) for their contribution to this edition.

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Disclaimer
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.