Expert legal review finds Australia’s environment law fails to protect safe and liveable climate

BIG POLLUTING FOSSIL fuel projects are escaping scrutiny because Australia’s national environment law has a massive gap when it comes to climate change harms, according to a legal review released Tuesday.

Distinguished environmental and climate law professor Jacqueline Peel prepared the review.

More than 35 of Australia’s leading environmental law experts have today backed Professor Peel’s findings in an open letter to the Environment Minister, Tanya Plibersek, which calls on the Federal Government to fix our national environment law by putting climate at its heart. 

“Our national environmental law does not currently require the Federal Environment Minister to protect a safe and liveable climate, or even to consider the impact of more greenhouse gas pollution on the threatened species, habitats and wildlife this law was set up to protect,” Professor Peel said.

“There is no other federal law which assesses and approves new coal, oil and onshore gas projects to proceed. This means the damage they could do to the climate and environment isn’t being properly looked at anywhere, showing a major gap in our legal framework for tackling climate change.” 

Key issues called out by Professor Peel’s review include:

  • The law does not explicitly deal with climate change, and there is no current requirement for considering the climate impacts of proposed projects. Previous attempts to add climate to the act have been rebuffed; this is allowing projects with high greenhouse gas emissions to proceed without a thorough assessment of their impacts. The recent Living Wonders decision in the Federal Court confirms that even an indirect interpretation of the law’s protections does not bring climate impacts into its scope.
  • Proposed reforms by the federal government would only cover direct emissions from facilities, and ignore the bigger picture of emissions from their products (known as Scope 3 emissions) which can make up the far larger share of emissions from coal, oil and gas projects. Other countries like the US are increasingly considering these emissions when it comes to assessing potential environmental harm.
  • From next year, major companies will need to disclose all of their emissions to financial markets through the federal government’s upcoming climate financial disclosure laws. However, these same emissions wouldn’t need to be reported about specific projects being assessed under the national environment law. This could create a scenario where companies need to tell shareholders more about their emissions than they do environmental protection authorities.    

Climate Council Head of Advocacy Dr Jennifer Rayner said: “We need a national environment law which helps Australia deal with the climate crisis that is already battering our environment, and communities, right around the country. 

“This means setting the law up so that it can say a quick yes to responsible renewable energy and clean industry projects, which will help us drive down emissions while delivering good new jobs. And so it can provide a decisive no to big polluting projects that are going to pile on more climate harm.

“The first consultation drafts of the government’s reforms, released to stakeholders this week, are a huge missed opportunity. There is simply nothing there for climate, despite the loud and growing calls from communities and experts around the country to deal with this major environmental threat.  

“The Albanese Government should put climate at the heart of this law so that it properly protects our environment, and the precious natural places we all rely on for healthy, safe and prosperous lives.”   

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The Climate Council is Australia’s leading community-funded climate change communications organisation. We provide authoritative, expert and evidence-based advice on climate change to journalists, policymakers, and the wider Australian community.

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