3. Climate Law

Given all that is at stake, it is unsurprising that ‘climate law’ has emerged as a specialised field of international law. International climate change law is based on three international law treaties — the 1992 United Nations Framework Convention on Climate Change (UNFCCC),^[1] the 1997 Kyoto Protocol^[2] and the 2015 Paris Agreement^[3] — as well as the annual Conference of the Parties (COP) as the main decision-making body of the UNFCCC, subsidiary institutions and mechanisms, and the decisions and practices adopted therein. International climate change law interacts with many other fields of international law and has implications for almost all aspect of states’ national policies, including energy, agriculture, transportation, disaster planning and health. In this context, most states have adopted laws and policies that govern action on climate change, generally relating to mitigating GHG emissions, adapting to the impacts of climate change, and disaster risk management.^[4] A subset of those domestic laws and policies link national and international action on climate change. The next section of the chapter will briefly describe the field of international climate change law and introduce Australia’s approach to linking its international obligations with national laws and policies.

3.1   International Climate Change Law

The 1992 UNFCCC acknowledges that “‘change in the Earth’s climate and its adverse effects are a common concern of humankind”’.^[5] The Convention sets out key principles that are intended to inform and guide the development of subsequent treaties, including that parties to the Convention should protect the climate on the basis of equity and in accordance with their “‘common but differentiated responsibilities and respective capabilities”’.^[6] It also highlights the “‘specific needs and special circumstances of developing country Parties”’, especially those “‘particularly vulnerable to the effects of climate change”’,^[7] and the need for “‘precautionary measures”’.^[8]

In the negotiation of the UNFCCC, state parties were unable to agree on specific legally binding emission reduction targets. In light of this, the UNFCCC primarily set out some general obligations and established institutions and processes, including subsidiary bodies, a secretariat and annual conferences (the COP) to allow for ongoing negotiations and norm development under the framework Convention. The UNFCCC created obligations for all parties to develop and publish national inventories and formulate and implement programs containing measures to mitigate climate change by addressing emissions from sources and removals by sinks.^[9] It also created further obligations for countries listed in Annex I of the Convention (industrialised countries that were part of the OECD, the Organisation for Economic Co-operation and Development, in 1992 and countries with economies in transition) to adopt national policies and take corresponding measures to limit emissions of GHGs and protect and enhance sinks.^[10] Finally, the UNFCCC created additional obligations for countries listed in Annex II (just the industrialised countries that were part of the OECD in 1992) relating to the provision of financial resources and technology transfer to support developing country parties, especially those that are particularly vulnerable to climate change.^[11]

The subsequent 1997 Kyoto Protocol established some binding reduction commitments for Annex I, the developed countries party to the original Convention. In total, the Protocol sought to reduce overall GHG emission by at least 5 per cent below 1990 levels during its first commitment period (2008–2012).^[12] The quantified emission limitation or reduction commitments for each developed country was listed in Annex B. Australia was able to negotiate significant concessions at Kyoto: while other developed countries committed to emission reductions, Australia negotiated an agreed target that would allow it to increase its emissions by 8 per cent over the first commitment period (2008–2012). Another major concession was the so-called Australia clause (Article 3.3), which allowed Australia to obtain credit for reductions in land clearing since 1990 that were caused by separate policy changes. Despite negotiating an increasingly favourable deal, the Coalition government of Australia at the time, headed by Prime Minister John Howard, choose not to ratify the Kyoto Protocol. It was not until 2007 that Australia ratified the Protocol, after the election of the Labor Party led by Prime Minister Kevin Rudd.

The Kyoto Protocol also established an international system of carbon trading,^[13] including two carbon offset schemes, ‘Joint Implementation’^[14] and the ‘Clean Development Mechanism’.^[15] The former allowed developed country parties to support emission reduction in other developed country parties and in return allow the resulting emission reduction units from the project to be counted towards its own emission reduction commitments. The Clean Development Mechanism allowed developed country parties to support emission reduction projects in developing countries and in return allow the resulting certified emission reductions from the project to be counted towards its own emission reduction commitments. The Clean Development Mechanism was intended to generate win-win outcomes for developed and developing country parties, as well as the climate, but has been heavily criticised for failing to generate real and additional emission reductions and, at times, for contributing to negative human rights and social impacts where the projects were located.^[16]

The Kyoto Protocol did not come into force until 2005; however, the focus of international negotiations had already moved to what would come after it. The 2007 Bali Action Plan launched a “‘process to enable the full, effective and sustained implementation of the Convention”’ up to and beyond 2012.^[17] This process sought to address a shared vision for long-term cooperative action, as well as enhanced action on mitigation, adaptation, technology development, and transfer and provision of financial resources and investment to support action. There were high hopes that a post-2012 agreement would be reached at COP15 held in Copenhagen in 2009; however, the conference only produced the controversial ‘Copenhagen Accord’, which was ‘noted’ but not adopted by the COP.^[18] However, a few years later in 2011 a last-minute breakthrough in Durban saw a commitment to “‘develop a protocol, another legal instrument or an agreed outcome with legal force under the Convention applicable to all Parties”’ by 2015.^[19]

The subsequent 2015 Paris Agreement was widely celebrated as a ‘landmark’ and ‘historical’ agreement, even though climate justice groups simultaneously warned that it was an “‘accord that failed humanity”’ and a “‘disaster for the world’s most vulnerable and future generations”’.^[20] The Paris Agreement sets out a number of key objectives, including “‘holding the increase in the global average temperature to well below 2 °C above pre-industrial levels and pursuing efforts to limit the temperature increase to 1.5 °C above pre-industrial levels”’.^[21] Its objectives also include increasing the capacity to adapt to the adverse impacts of climate change^[22] and directing finance towards GHG emission reductions and climate-resilient development.^[23] In contrast to the Kyoto Protocol, the Paris Agreement adopts a more ‘bottom up’ architecture and allows each country to put forward their own intended ‘nationally determined contributions’ (NDCs) — intended plans of action to reduce GHG emissions and adapt to the adverse impacts of climate change.^[24] State parties are required to submit an NDC every five years,^[25] each reflecting a progression on their previous NDC and reflecting the particular country’s “‘highest possible ambition”’.^[26] Additionally, a “‘global stocktake”’ on collective progress towards achieving the objective of the Paris Agreement will be held every five years.^[27] The first global stocktake concluded in 2023, underlining that there remains a problematic gap between the NDCs put forward by state parties and the emission reductions necessary to stay within the global temperature limit set out under the Paris Agreement (see Figure 32).^[28]

The Paris Agreement also includes provisions on adaptation (Article 7), loss and damage (Article 8), finance (Article 9), technology transfer (Article 10) and capacity building (Article 11). More specifically, Article 7 sets out “‘the global goal on adaptation of enhancing adaptive capacity, strengthening resilience and reducing vulnerability to climate change”’, taking into account the sustainable development needs of state parties and the temperature limit in Article 2 of the agreement.^[29]

Despite mitigation and adaptation action, some losses and damages associated with climate change have already occurred and will continue to occur into the future. In Article 8 of the Paris Agreement, state parties “‘recognized the importance of averting, minimizing, and addressing loss and damage associated with the adverse effects of climate change”’.^[30] Articles 9, 10 and 11 reaffirm that developed country parties must help developing countries in mitigation and adaptation by providing financial assistance, technology transfer and capacity-building support, respectively.^[31]

The international climate treaties have been surprisingly silent on the main causes of global climate change, namely the burning of fossil fuels. Although the 1988 Toronto Conference on the Changing Atmosphere had already recommended that half of all emission reductions should come from decreasing fossil fuel supply,^[32] the UNFCCC and Paris Agreement do not include any commitment to reduce fossil fuel extraction or combustion. A key outcome of the 2021 Glasgow Climate Pact^[33] was a reference to “‘accelerating efforts towards the phasedown of unabated coal power and phase-out of inefficient fossil fuel subsidies”’.^[34] The question of fossil fuels was central to the negotiations at COP28 in Dubai; however, the final text only called on parties to take action, including “‘[a]ccelerating efforts towards the phase-down of unabated coal power”’, “‘[t]ransitioning away from fossil fuels in energy systems”’ and “‘[p]hasing out inefficient fossil fuel subsidies that do not address energy poverty or just transitions”’.^[35]

3.2   Australia’s Climate Change Laws and Policies

There are many compelling reasons for Australia to take strong and ambitious climate action. Australia has a high level of vulnerability to climate impacts, especially extreme weather events such as floods and fires.^[36] Moreover, economic assessments have consistently shown that ‘business as usual’ is not a viable option and that the costs of acting will increase the longer we delay.^[37] Finally, Australia has many opportunities to benefit from and be a global leader in the transition to a low-carbon society.^[38] Yet despite this, Australia has historically been a ‘laggard’ not a ‘leader’ on climate policy.^[39]

Australia has one of the higher levels of per capita GHG emissions in the world: 15.1 tonnes in 2021, which is almost double China’s 8 tonnes per capita, or 50 times the per capita emissions of low-income countries (see Figure 43).^[40] This is due to the high reliance on coal and gas in Australia’s energy portfolio, GHG emissions from coal mines, and the degradation of carbon sequestration in soils and forestry through agricultural activities and other land-use changes. Australia’s largest contribution to global climate change is through its exports of fossil fuels, especially coal and gas. Australia has some of the largest coal reserves in the world and is the second largest coal exporter internationally.^[41] The emissions from Australian coal that is burnt overseas are almost double our domestic emissions.^[42] Australia is also the world’s largest liquefied natural gas exporter.^[43]

A recent Oil Change International report, Planet Wreckers, shows that just 20 countries are likely to be responsible for almost 90 per cent of the carbon pollution from new coal and gas fields between 2035 and 2050, and over 50 per cent of this planned expansion comes from five countries: Australia, the United States, Canada, Norway and the United Kingdom. However, there remains bipartisan support for fossil fuel production in Australia and there is “‘no national policy framework aiming to restrict fossil fuel exploration, production, or infrastructure development”’.^[44] Australian policy has thus long been blinded by a “‘quarry vision”’^[45] and fossil fuel industries have “‘constructed a covert network of lobbyists and revolving door appointments which has ensured that industry interests continue to dominate Australia’s energy policy”’.^[46] As the United Nations Environment Program Production Gap Report 2023 notes, “‘coal and gas industries have strong influence in political debate, diplomacy, economic strategy, and policy development, both nationally and in fossil-fuel-exporting states”’.^[47]

Climate policy is historically contentious and politically fraught in Australia: there has been a lack of bipartisan consensus about climate action, and climate debates have been a catalyst for change in government and internal party leadership in both major parties. The period from around 2007 to 2023 is often characterised at the ‘climate wars’. There were several unsuccessful attempts to introduce a national climate policy, including the Rudd Labor government’s Carbon Pollution Reduction Scheme (introduced into Parliament in 2009, which was unable to pass and postponed indefinitely in 2010). Subsequently the Gillard Labor government, with support from the Australian Greens and independents, enacted the Clean Energy Future legislative package in 2011. This established a carbon pricing scheme, with an initial fixed price on carbon before the transition to a carbon trading scheme linked to international markets. Although the Clean Energy Future scheme was already influencing emission reductions,^[48] it was persistently opposed by the Liberal–National coalition in opposition. In 2014, shortly after they won government in 2013, the Liberal–National Abbott government repealed the scheme, replacing it with an Emission Reduction Fund that built upon the Carbon Credits (Carbon Farming Initiative) Act 2011 (Cth) (which was part of the Clean Energy Future package).^[49]

In the lead up to the Paris Agreement, Australia submitted an intended NDC to reduce emissions by 26 to 28 per cent below 2005 levels by 2030. This commitment was widely viewed to be insufficient, particularly considering that Australia is a developed country expected to take the lead in mitigating GHG emissions.^[50] While most countries updated their NDCs prior to COP26 in 2021, the Australian government led by Scott Morrison simply resubmitted the unrevised, highly insufficient target. The Morrison government also released a plan to achieve net zero by 2050 which relied heavily on the future development of low-emission technology, land-use reduction and international offsets. It did not include any plan to phase out coal or reduce fossil fuel exports. In August 2022, the newly elected Albanese Labor government submitted Australia’s new NDC to the UNFCCC. It included a target to reduce GHG emissions by 43 per cent by 2030 below 2005 levels. While Climate Action Tracker described this as a significant improvement in ambition it still gave the updated NDC an overall rating of ‘insufficient’, given it was consistent with a temperature rise of 3 °C above pre-industrial levels, far exceeding what the Paris Agreement establishes as necessary to prevent dangerous anthropogenic interference with the climate (see Figure 54).

Australia has sought to codify its updated international NDC at the national level through the adoption of the Climate Change Act 2022 (Cth). The Climate Change Act is the main legislation in Australia that codifies Australia’s international commitments to reduce net GHG emissions by 43 per cent below 2005 levels by 2030 and reach net zero by 2050. It also requires that a climate change statement is prepared annually and tabled in Parliament and provides that the Climate Change Authority should advise the current minister on this statement and on updated emission reduction targets. Various state and territory governments also have climate legislation that sets specific mitigation targets and promotes climate adaptation.^[51]

The other key national tool governing climate action in Australia is the ‘Safeguard Mechanism’, which has been in place since 2016. The Safeguard Mechanism is enacted through the National Greenhouse and Energy Reporting Act 2007 (Cth), although key details are included in various regulations.^[52] The Safeguard Mechanism requires facilities that emit more than 100,000 tonnes of CO2 equivalent (abbreviated as tCO2-e) of covered emissions^[53] annually to comply with emissions limitations. Prior to 2023, the emissions limit was relatively consistent and set at business-as-usual levels. However, from 2023 onwards, facilities covered by the Safeguard Mechanism must reduce their emissions in alignment with Australia’s international commitments. Facilities that exceed their emissions limits have the option to purchase ‘carbon credits’^[54] that are produced from ‘eligible activities’ focused on emission reduction or carbon sequestration.^[55] However, a number of academic studies and civil society groups have highlighted environmental integrity issues with these carbon credits, and there are concerns that around 75 per cent of the credits do not represent new, additional or real emission reductions.^[56]

Outside of specific climate laws and policies, Australia’s main environmental protection law — the Environmental Protection and Biodiversity Conservation Act 1999 (Cth) (EPBC Act) — does not explicitly address the climate impacts of GHG-intensive projects.^[57] Various independent reviews and reports on the EPBC Act have called for the inclusion of a ‘climate trigger’.^[58] However, to date no such trigger has been included in the legislation. That said, as of 2023 and at the time of writing, there were two private member bills before Parliament that sought to modify the EPBC Act to require the consideration of GHG emissions and climate change considerations.^[59] There have also been various attempts through litigation to ask courts to interpret the decision-making provisions of the EPBC Act to require the consideration of GHG emissions, including in Wildlife Preservation Society of Queensland Proserpine/Whitsunday Branch v Minister for the Environment and Heritage (‘Wildlife Whitsunday Ccase’), Australian Conservation Foundation (ACF) v Minister for the Environment (‘Carmichael Coal Mine’ Ccase’) and Environment Council of Central Queensland Inc v Minister for the Environment and Water (No 2) (‘Living Wonder’ Ccase’). These cases have (to date) been unsuccessful.

More broadly, there has also been growing use of the courts to try to achieve climate regulatory outcomes.^[60] ‘Climate litigation’ has been defined as “‘cases that raise material issues of law or fact relating to climate change mitigation, adaptation, or the science of climate change … brought before a range of administrative, judicial, and other adjudicatory bodies”’.^[61] There has been a drastic growth in climate litigation over the past decade globally.^[62] Over recent years, there has been a global and domestic surge in climate change related litigation. As of July 2023, some 2,180 climate change related court cases have commenced or concluded globally, spanning courts in 65 domestic jurisdictions and international and regional courts, tribunals and quasi-judiciary bodies.^[63] A small but growing subset of these cases strategically seek to push states to enhance and implement state mitigation or adaptation commitments.^[64]

Australia is, after the United States, the jurisdiction that has seen the most climate litigation actions, with over 134 cases filed. While the ‘first generation’ of climate litigation in Australia primarily used administrative law to challenge governmental decision-making, especially around coal-fired power stations and coal mines, the ‘second generation’ of climate litigation has innovatively deployed a range of laws — including company, trust, constitutional, tort, human rights laws and others — to promote an “‘accountability model whereby legal interventions are designed to hold governments and corporations directly to account for the climate change implications of their activities”’.^[65] Various arguments developed in climate litigation will be discussed in chapters throughout this book.