Does the NSW Climate

Change Bill stack up?

A clean, healthy and sustainable environment is generally understood to include the right to clean air; a safe and stable climate; access to safe water and adequate sanitation; healthy and sustainably produced food; non-toxic environments in which to live, work, study and play; and healthy biodiversity and  ecosystems. It should also include access to information; the right to participate in decision-making; and access to justice and effective remedies including the secure exercise of these rights free from reprisals and retaliation.

1 November 2023

ALAN HAYES

 

IN July 2022, the United Nations' General Assembly adopted a historic resolution declaring that the right to a clean, healthy and sustainable environment is a fundamental human right. Despite such a landmark move, Australia was criticised for lacking legislative framework and enforcement regime to implement the right in reality.

 

However, in an Australian first, the Australian Capital Territory (ACT) could well become the first government in this country to give people a legal right to a healthy environment, with the introduction last week of new human rights legislation.

 

The bill will allow people to report healthy environment breaches to the ACT Human Rights Commission but complaints will not yet result in penalties. However, complaints about breaches of the right to a healthy environment will be able to be made to the ACT Human Rights Commission under the new human rights complaints pathway being established by the Government.

 

The Human Rights (Healthy Environment) Amendment Bill 2023 seeks to address the impacts of climate change and shore up the environment for future generations, according to the government. The Bill provides express statutory recognition for the right to a clean, healthy and sustainable environment. This is an important step having regard to the triple planetary threat of climate change, environmental pollution and biodiversity loss.

 

Introducing the right is consistent with growing international consensus and practice around the importance of environmental protections for current and future generations.

 

In an ACT context, the right will also ensure environmental and climate considerations feature in public authority functions and decision-making.

 

ACT Minister for Human Rights Tara Cheyne said “The Act will be the first Australian jurisdiction to enshrine the right to a healthy environment in our human rights framework, demonstrating our continued leadership as a human rights jurisdiction.

 

“Recognising the right to a clean, healthy and sustainable environment will provide the catalyst for more ambitious, coherent and coordinated action by the ACT Government to protect the environment for our current and future generations.”

 

One of the most important responsibilities people have is to maintain a clean and healthy environment. This includes keeping their surroundings free of litter, waste, and pollutants. By doing so, they reduce the risk of hazardous materials entering our air, water, and soil, which can cause health problems. Communities can work together to create programs and initiatives that promote a safe and healthy environment.

 

Even though the ACT is introducing legislation, what is the rest of the country doing? Environmental rights are allegedly protected by the Commonwealth under the Environment Protection and Biodiversity Conservation Act 1999 (EPBC Act) — Australia's national environment law — making it an offence for any person to take an action that is likely to have a significant impact on matters protected by the EPBC Act, unless they have the approval of the Australian environment minister. But does it really do the job it is intended to do? Central Coast communities know only too well how the EPBC Act falls short of its intended purpose. This was borne out during the fight to protect the environment and drinking water catchment from the destructive activities of coal mining and other extractive industries that were declared State significant. Ministers on both sides of the political divide tend to grant approval, despite the inevitable consequences.

 

And while Federal and State governments harp on about taking positive action to address climate change, and to reach proposed emission reduction targets by 2030 and 2050, are they really doing enough to address the extreme changes in climate that will adversely affect our planet and human existence? The NSW State Government intends to introduce the Climate Change (Net Zero Future) Bill 2023 but according to Richard Weller of Climate Change, Central Coast, the emission targets in the Bill are inadequate to protect the people of NSW from the impacts of extreme changes in climate.

 

“It is imperative that Australia prepares for the impacts of Climate Change at all levels and acts urgently to cut emissions and adapt to the anticipated and unexpected impacts,” Mr Weller said.

 

“The effective cuts in global emissions have been left so late that it is no longer a case of doing a nation’s “fair share”.

 

“Where a country or a state has the ability to cut emissions faster, it must do so immediately, on the basis of emergency action for the sake of the whole of humanity for many future generations.”

 

From bitter experience communities have found that more often government’s answer to environmental destruction and increased carbon emission is to allow the offender (in particular with coal mining and coal generation industry) is the use of offsets, which do not permanently and effectively sequester carbon. All this practice does is allow for cheating and delay.

 

Whereas the NSW Climate Change Bill includes targets for emissions reduction, it does not require the whole of government to take responsibility for reducing emissions and preparing for impacts.

 

The Climate Change Bill’s targets of 50% by 2030 and net zero by 2050 are inadequate in the following ways:

 

• The targets are not stringent enough for the state of the climate and the science;

 

• There is no allowance for the need to ratchet up action to reduce emissions as time passes – the review mechanism is way too slow (at 5 years) and there is no other mechanism for establishing tighter targets; and

 

• There is no provision for negative emissions following the achievement of the net zero position.

 

Most important, the Bill does not include a 'Duty of Care' for the government – that the government must ensure that any decisions made by any part of the government must take account of the potential damage to NSW and its people that may occur from that decision. If there is no 'Duty of Care' to protect future people from the impacts of climate change, there is no adequate government response to this crisis.

 

Another obvious flaw in the Bill is that 'The Net Zero Commission' (NZC) does not have explicit power to recommend changes in action, targets or behaviour that are required to achieve the emissions budget and reduction targets. This serious failing negates any mechanism for responding to an abrupt change in the climate system such as would require emergency powers to respond to the crisis or an urgent review of targets.

 

“The NSW Government, in all its functions, has a Duty of Care for the health and wellbeing of its people and future generations and their actions in governance must include consideration of the existential threat of climate change to the people of NSW and that of  future generations,” Mr Weller said.

 

“One of the most difficult parts of action on climate is that most people still do not fully understand the existential threat presented by the burning of fossil fuels and the climate forcing that results from it.

 

“What really counts is the global concentration of greenhouse gases in the atmosphere and the forcing of the climate system that results. All words spoken that ignore this problem simply dig us deeper into the hole of extinction.”

 

It cannot be doubted that as the world warms there will be increasing damage to the climate that will require increasing determination to cut emissions and to adapt to impacts.

 

NSW Emissions were approximately 225 MtCO2e in 2005 and 183 MtCO2e in 2021. The IPCC and UNEP reduction profiles require global emissions reduction of 50% by 2030 below current levels. These cuts are based on 2019 calculations and will more than likely be too low due to the failure to cut global emissions since then (they have actually increased). It is estimated that emissions in 2024, when NSW Climate Change Bill comes into force, will be 180 MtCO2e.

 

Although the time period for public submission has now closed, concerned citizens can still write to their local member on the Central Coast and express their concerns about inadequacies in the Climate Change Bill. Some important aspects to consider are:

 

• The approval of new fossil fuel investments must be prevented or we will fail to meet the Paris goals will become out of reach.

 

• Subsidies and other support for fossil fuels must be removed and any funding available from this transferred to renewable energy, increased transmission network and provision of storage. These measures will ensure a timely shutdown of outdated fossil fuel power stations.

• No new support must be allowed for existing coal or gas facilities, including power stations.

 

• All new development (of any scale) shall include limitations based on the projected impacts of climate change, including increased heat, drought, wildfire, flood, erosion, etc. that will flow from the increasingly chaotic climate. This is essential for preparation of the community for impacts.

 

• The Offsetting industry must be overhauled so that offsets can be relied on to be permanent and real in the reduction of total emissions. It is the total amount of emissions released that will determine the actual rise in temperature and physics does not care if we cheat. If failure of offsetting already recorded is found, all the targets must be reviewed and retightened to account for the lost emissions reductions. A mechanism for this must be part of the 2-year review and tasks for the NZC.

 

The irony is that our governments’ are already aware of the answer to replace coal-fired power – ‘Concentrated Solar Thermal Power Plants’, which produced zero greenhouse emissions, run 24 / 7 and are less expensive to build than a gas or a coal-fired power plant. All that is required is for our politicians to encourage investment from the private sector. This type of electricity generation, which was previously reported in the Grapevine - A long hot summer – fueled by climate change – has already been adopted around the globe, so why not here?