Bushfires

2020 was a year of extreme weather events, with many people bringing in the New Year under a blanket of smoke caused by the devastating bushfires burning across the East Coast. In New South Wales alone, the 2019-20 summer bushfire season impacted over 5 million hectares of land, including a third of the State’s national parks and State forests. The Royal Commission into National Natural Disaster Arrangements, set up in response to the bushfires, heard significant evidence on the impacts of climate change, including the projected increase in climate-driven natural disasters. The Commission’s report recommended:

• the implementation of a National Disaster Risk Information Services Capability with integrated climate and disaster risk scenarios
• increased data sharing on climate risks between the Commonwealth and State and Territory Governments
• the production of national climate projections to inform future natural disaster risk assessment.

COVID-19 pandemic

The economic cost of the COVID-19 fallout has provided an uncomfortably real comparison of the projected impacts of climate change in a report published by Deloitte Access Economics titled A New Choice Australia’s Climate for Growth. The report finds that by 2055, unchecked climate change will result in annual impacts on Australia’s economy equal to the impact of coronavirus on the 2020 economy. By 2070, this will have increased further, equating to $3.4 trillion and over 880,000 jobs being wiped from Australia’s economy in a single year.

Internationally, the 26^th session of the Conference of the Parties to the United Nations Framework Convention on Climate Change was postponed due to the COVID-19 pandemic. However, emissions reductions in early 2020 resulting from coronavirus lockdowns were short-lived, with the World Meteorological Organisation’s United in Science 2020 report finding that by early June, daily emissions from the burning of fossil fuels had returned to around 5% below 2019 levels. It also reports a continued rise in the concentration of greenhouse gases in the atmosphere and that the last five years is shaping up to the be the warmest five-year period on record.

Back home, the Nation’s strong response to the COVID-19 pandemic set a new tone for the governance of other major risks, including climate change. In becoming the last of Australia’s States and Territories to adopt a target of net zero emissions by 2050, the Northern Territory Minister for Climate Change highlighted how COVID-19 had demonstrated the importance of working together as a community, and with experts, to keep our communities safe and that the response to climate change should be no different.

Lastly, COVID-19 and the bushfires also featured in the Explanatory Memorandum to the Climate Change (National Framework for Adaption and Mitigation) Bill 2020 (Climate Change Bill), introduced by Independent MP, Zali Steggall. If passed, the Act would:

• set a Commonwealth target for net zero emissions by 2050, to be reached through five-yearly emissions budgets and emissions reduction plans
• establish an independent Climate Change Commission to provide advice, and monitor and report on progress under the Act
• require five-yearly national adaptation plans in response to climate change risks identified by the Commission.

Renewable energy

Renewable technologies featured in the economic recovery from COVID-19, with the Commonwealth Government announcing its Technology Investment Roadmap and First Low Emissions Technology Statement, to target government investments into new, low emissions technologies. The environmental assessments of some renewable energy projects were also fast-tracked through the NSW Government’s Planning System Acceleration Program, including the Snowy 2.0 pumped hydro expansion and the Western Sydney Green Gas Trial, which will trial the use of electrolysis to convert excess solar and wind power into hydrogen gas for storage.

These developments come amid good news from the Australian Energy Market Operator (AEMO) on the security of electricity supply in the National Electricity Market, while transitioning to a greater reliance on renewable energy. In its Renewable Integration Study – Stage 1 Report, the AEMO concluded that in the next five years, the proportion of wind and solar energy operating in the National Electricity Market at any one time could increase to up to 50-60% of total generation, while maintaining system security. This percentage increases to up to 75% if the recommendations in the study are adopted.

The NSW’s Government’s Electricity Infrastructure Roadmap and Electricity Infrastructure Investment Act 2020 build further on this transition, with a focus on:

• investing in pumped hydro energy storage
• establishing new network infrastructure to support key ‘Renewable Energy Zones’
• monitoring forecasted electricity supply in NSW against long-term energy security targets.

Climate change litigation

The courts continued to provide an avenue for the public, and particularly young people, to challenge the scope of existing legal structures and raise awareness of the impacts of climate change.

Bushfire Survivors for Climate Action Inc v Environment Protection Authority

The Bushfire Survivors for Climate Action commenced civil enforcement proceedings in the NSW Land and Environment Court alleging that the NSW Environment Protection Authority (EPA) failed to perform its statutory duty to develop guidelines and policies to ensure the protection of the environment. In an interim judgment handed down in November, the Court granted leave to the Applicant to adduce expert evidence on greenhouse gas emissions, climate change impacts and the adequacy of current EPA policies to address these. According to the Applicant, this marks the first time an Australian court has ruled on whether climate evidence can be heard in a case alleging the Government's failure to perform their statutory duty.

Sharma & Ors v Minister for the Environment

A group of school students, representing children from around Australia and globally, commenced a class action in the Federal Court seeking an injunction preventing the Commonwealth Government from approving an extension to the Vickery coal mine under the Environment Protection and Biodiversity Conservation Act 1999 (Cth). The students argue that the Federal Minister for the Environment has a duty to exercise her powers under the Act with reasonable care so as to not cause harm to children and approving a project that will materially contribute to climate change is in breach of this duty. The matter is set down for hearing in March 2021.

Waratah Coal Pty Ltd v Youth Verdict Ltd & Ors

An objection to applications made by Waratah Coal for a mining lease and environmental authority for the proposed Galilee Coal Project is before the Queensland Land Court, based on the grounds that the grant of the applications would be incompatible with the objectors’ human rights, in violation of the Human Rights Act 2019 (Qld). In a judgment handed down in September, Waratah Coal failed to have the objection struck out for lack of jurisdiction, with the Court finding that it was required to comply with the relevant provision of the Act when carrying out its functions in assessing and providing a recommendation on the applications to the decision maker.

Kathleen O’Donnell v Commonwealth of Australia & Ors

A 23-year-old law student, a holder of and investor in Exchange-traded Australian Government Bonds, has brought a class action against the Commonwealth Government in the Federal Court alleging that the Commonwealth engaged in misleading and deceptive conduct and breached its public duties in failing to disclose how climate change would impact on the value of those Bonds.

Mark McVeigh v Retail Employees Superannuation Pty Ltd

REST superannuation fund settled Federal Court proceedings commenced by one of its members alleging that REST failed to adequately manage, and disclose to its members, climate change risk in its investments. In announcing the settlement, REST acknowledged that “Climate change is a material, direct and current financial risk to the superannuation fund across many risk categories” and agreed “to continue to develop its management processes for dealing with the financial risks of climate change on behalf of its members”, including by reporting in line with the recommendations set by the Task Force on Climate-related Financial Disclosures.

The year ahead

The continuation of current government policies into 2021 will likely see a continued investment in renewable energies, while looking ahead in the medium term to mitigate the impacts of extreme weather events already being experienced in Australia. Climate change litigation in Australia will also continue to see interesting developments around the peripheral areas of existing laws and the extent to which these can be used to impact on the regulation of greenhouse gas emissions.

As the world emerges from COVID-19, public discourse may shift back to climate change, with a renewed focus on mitigating future economic disasters. However, these aspirations are likely to be constrained by current economic realities, with many industries still struggling to get back on their feet. The Climate Change Bill provides a timely opportunity to establish a framework for policy development to plan for emissions reductions and climate change adaptation, without any immediate cost to the economy. While it is currently unknown whether the Bill will garner the necessary support in Parliament, 2020 has been a year of surprises, and has taught us that, when it comes to keeping our communities safe, all options are on the table.