Taip v East Gippsland SC [2010] VCAT 1222 (28 July 2010)

September 17, 2010 – 1:30 pm

This case is available at: http://www.austlii.edu.au/au/cases/vic/V…. Note: This case was heard concurrently with D’Abate v East Gippsland SC & Ors [2010] VCAT 1320 (6 August 2010) however it was determined separately.

This case concerned an application for a three storey multi-dwelling development in the Coastal Town of Lakes Entrance where proposed development is highly vulnerable to flooding and to climate change impacts. In November 2008 the East Gippsland Shire Council granted a permit for residential development of eight dwellings in the Business 1 Zone (B1Z) in Lakes Entrance. The proposed development was subject to a Land Subject Inundation Overlay (LSIO) and thus required referral to the East Gippsland Catchment Management Authority (the EGCMA). The ECGMA did not object to the Council granting the permit.

Ms Taip, an objector, made an application to VCAT to review the decision of the Council but her issues were later resolved. The EGCMA then applied for and was granted leave to join the application for review in order to object to the grant of the permit. Initially the EGCMA wanted to object to the grant of the permit due to flooding issues and the potential impacts from climate change and sea level rise. The ECGMA later amended its statement of grounds, deleting references to climate change and sea level rise. This left the risks posed by flooding as the substantive matter for the Tribunal to determine. Nevertheless, the Tribunal decided to examine the flooding question in the broader context originally raised by the EGCMA objection, namely 1) the existing flooding risk under current climate conditions and lake levels; and 2) the level of risk from sea level rise and other effects from climate change.

Member Ian Potts found the ‘current level of risk and hazard, on balance… to be acceptable’ and if the current level were the only issue at hand then he would have directed for the permit to be granted. However, Member Potts also commented that in the future ‘the Lakes Entrance had a very high vulnerability to flooding and to the impacts of climate change including sea level risk’.

Member Ian Potts determined the extent of the site’s vulnerability to climate change impacts relying upon the strategies and policies contained within the East Gippsland Planning Scheme, including Urban Design Framework C68, as well as a number of other relevant strategies, guidelines and materials. He considered the other potential impacts of climate change for the development, including the effects of tides, storm surges and other local conditions. He relied upon several studies, including the Gippsland Coastal Board’s study on climate change, sea level rise and subsidence prepared in 2008 to assess the degree of flood/inundation risk due to increases in the ‘predominance of south-westerly frontal weather patterns; increases in wind speed; increases in storm surge heights, by up to 10%; and increases in frequency and intensity of extreme events ‘by approximately 10%’.

Member Potts held that a cautious approach was warranted while planning frameworks and other responses (such as the development of coastal climate change policy by the Vic government) are set in place to address and minimise coastal climate change risks. Granting a permit prior to that would ‘fail to satisfy the purposes of planning in Victoria for intergenerational equity, sustainable, fair and socially responsible development’. He considered that it was insufficient to rely on raising the building floor level above projected water levels and that approving this development would not create an orderly planning outcome. The Tribunal also dismissed other arguments raised by the Council regarding the possibility for sterilisation of development in the area and that the ‘economic life’ of the development would expire before any major climate change impacts would be felt.

Member Potts was critical of the Council’s reasoning that there should be no halt to development in an existing urban coastal area due to climate change induced sea level rise on the basis that there remains sufficient time before the impacts of climate change manifest to develop policy and planning responses. Ultimately, Member Potts remarked that ‘such decision making is difficult. Being difficult is not a sufficient reason to defer it. There are severe and long term consequences from the impacts of climate change that are required to be addressed now. State planning policy directs planning and responsible authorities to do so.’

By Jacqueline Peel | Posted in Australian climate change litigation, Case law | Comments Off

Kennedy v NSW Minister for Planning

September 17, 2010 – 1:03 pm

[2010] NSWLEC 164 (31 August 2010)

This case is available at: http://www.austlii.edu.au/au/cases/nsw/N…

NB. this case follows an earlier decision in Kennedy v NSW Minister for Planning [2010] NSWLEC 129 (26 July 2010), which is available at: http://www.austlii.edu.au/au/cases/nsw/N….

This case is another chapter in the ongoing saga of opposition to a proposed retirement home development at Sandon Point, originally challenged in the Walker litigation.

The original Kennedy case involved a judicial review action brought to the New South Wales Land and Environment Court which challenged the validity of the major project approval for the Sandon Point development granted subject to conditions on 29 November 2009 by the NSW Planning Minister. The judicial review action was brought by Roy “Dootch” Kennedy on behalf of the Sandon Point Aboriginal Tent Embassy against the NSW Minister for Planning and the developer, Stockland Developments Pty Ltd.

Previous litigation opposing the development before the NSW Land and Environment Court and the NSW Court of Appeal (Walker v Minister for Planning; Minister for Planning v Walker – see case summaries) focused on whether the Minister had failed to have regard to principles of Ecologically Sustainable Development through his failure to consider whether the impacts of climate change would lead to an increased flooding risk on the proposed development site.

Subsequently, modifications were made to the project application to incorporate additional climate change information. In August 2009 the Director-General of the Department of Planning reported on the environmental assessment requirements (“EARS”) to the Minister pursuant to s 75 of the EPA Act. It was the Director-General’s recommendation that the Minister approve the carrying out of the project and approve the modification to the concept plan. The Department of Planning issued a statement that they were satisfied with the environmental assessment. The Minister later requested that the Planning Assessment Commission (“PAC”) review the reasonableness of the Director-General’s recommendation which is a function of the Commission under s 23D(1)(b)(ii). The PAC recommended that the EARS report was reasonable. On 29 November 2009 the Minister granted approval for the modification, subject to attached conditions and a statement of commitments.

In the initial Kennedy case, Justice Biscoe dismissed all four grounds for review including ground 2(c) concerning whether the Minister had failed to consider climate change induced potential flooding impacts. In regard to this ground, Justice Biscoe held that the proponent’s environmental assessment now ‘contained a section on “Flooding Issues” and another section in “Ecologically Sustainable Development”’. His Honour further ruled that the Court of Appeal’s judgment in Walker had been taken into account by the Minister, in the Director-General’s EARS report, the PAC report and a Departmental Briefing Note. Biscoe J quoted the aspects of the reports which referred to climate change in his judgment. Costs were reserved.

In the present case, the Minister applied for an order requiring Kennedy to pay the Minister’s costs of the previous case. Justice Biscoe held that in the circumstances, it was appropriate to make no order for costs in relation to the ground of appeal based on the impacts from flooding due to climate change. This was due to the strong element of public interest in the climate change and flooding issue. His Honour referred to Minister for Planning v Walker (No 2) [2008] NSWCA 334, in forming this opinion. However, Justice Biscoe found that the Minister was entitled to the costs of the other grounds, and ordered that 30 per cent of the Minister’s costs be paid by the applicant. Notably, 70 per cent of the proceedings were not consumed with the ground based in climate change induced flooding, but also with the maintenance of Aboriginal cultural heritage.

This latter Kennedy decision is particularly significant. It strengthens the arguments brought in Walker that climate litigation is in the public interest and thus applicants, or third party interveners, should not be burdened by the other party’s costs where they can establish under Rule 4.21 of the Land and Environment Court Rules 2007 (NSW) that the proceedings were brought in the public interest.

By Jacqueline Peel | Posted in Australian climate change litigation, Case law | Comments Off

Climate Law blogs

August 27, 2010 – 3:44 pm

Useful blogs for following developments in climate change litigation in the US and globally:
- http://www.globalclimatelaw.com/articles…
- http://www.pewclimate.org/federal/judici…
- http://www.climatelaw.org/cases/country/…
- http://www.endangeredlaws.org/recent_cas…

Useful blogs for following US legislative reform:
- http://www.georgetownclimate.org/federal…
-http://www.pewclimate.org/what_s_being_done/in_the_states/state_legislation.cfm
- http://www.pewclimate.org/federal/execut…

By Jacqueline Peel | Posted in International climate change law | Comments Off

Comer v. Murphy Oil, USA

August 17, 2010 – 5:43 pm

No. 05-CV-436LG (S.D. Miss. Aug. 30, 2007). This case is available at: http://www.globalclimatelaw.com/stats/pe…. The Appeal to the Fifth Circuit is available at: http://www.globalclimatelaw.com/stats/pe…

This case was filed by a group of Mississipi Gulf Coast property owners who had been severely affected by Hurricane Katrina. They alleged that the Defendants’ actions of operating energy, fossil fuels and chemical industries in the United States caused a dramatic increase in greenhouse gases, which contributed to global warming, which in turn had the effect of causing higher sea levels and ‘added to the ferocity’ of Hurricane Katrina. The Plaintiffs did not seek injunctive relief but damages under the torts of unjust enrichment, civil conspiracy, aiding and abetting, public and private nuisance, trespass, negligence, fraudulent misrepresentation and concealment. They brought their claim against insurance, chemical, oil, gas and electric power companies, including Alliance Resource Partners, L.P., Alpha Natural Resources, Inc., Arch Coal, Inc., CONSOL Energy Inc., Foundation Coal Holdings, Inc., and many more. The Southern Division District Court of Mississippi held that the plaintiffs failed to meet the required standing threshold and additionally that their claims were non-justiciable political questions. District Judge Guirola Jr dismissed their case with prejudice.

The plaintiffs appealed the decision to the Fifth Circuit where the District Court’s finding was reversed. The Appellate Court found that the plaintiffs ‘easily satisfy’ Mississippi’s liberal standing requirements as the State’s Constitution does not limit judicial findings to cases or controversies, unlike Federal Courts. The Plaintiffs satisfied the tests for standing for nuisance, trespass and negligence as they had suffered an ‘injury in fact’, the injury was ‘fairly traceable’ to the defendants’ actions, and their injury would, in all likelihood, be ‘redressed by a favourable decisions.’ The court was careful to explain that an ‘indirect causal relationship will suffice’ to meet the liberal standard of causation required to meet the test for standing. The Court declined to establish standing for the claims of unjust enrichment, civil conspiracy and fraudulent misrepresentations. These claims were therefore dismissed.

Circuit Justices Dennis and Stewart further held that the claims of nuisance, trespass and negligence were in fact justiciable. They held that the political question doctrine is a limited exception to the rule, with a limited application. The District Court’s judgment was reversed and remanded back for further proceedings consistent with the Fifth Circuit’s findings.

By Jacqueline Peel | Posted in Case law, US climate change litigation | Comments Off

California v. General Motors

August 17, 2010 – 5:34 pm

2007 WL 2726871 (ND Cal. 2007). This case is available at: http://www.climatelaw.org/cases/case-doc… v General Motors.pdf. The opening brief for the appeal is available at: http://ag.ca.gov/globalwarming/pdf/openi…. The Applicant’s motion to dismiss the appeal is available at: http://ag.ca.gov/globalwarming/pdf/motio…

This case was brought by the State of California in late 2006 against several motor vehicle manufacturing companies. The Plaintiff claimed that production of motor vehicles amounted to a public nuisance in the form of the emission of substantial quantities of greenhouse gases (GHGs). The Attorney-General’s department of California argued that the GHGs were contributing to climate change, which damaged the state through: increased air pollution leading to health problems, damaged vegetation growth and poor visibility; decline in the snowpack and snow levels, damaging the alpine and alpine dependent ecosystems and tourism industry; and coastal erosion causing harm to coastal environments and houses.

General Motors, Ford, Daimler Chrysler, and Toyota, Honda and Nissan outlets filed an early motion to the Northern District Court of California to dismiss the case due to lack of ‘justiciability.’ They argued, and the Court agreed, that the issue of climate change in 2007 was a ‘political question’ and must be decided by the political branch of government consisting of the President and Congress. The case brought under State and Federal public nuisance laws was therefore dismissed on the basis of the political question doctrine without prejudice as the Court found that ‘injecting itself into the global warming thicket’… would be outside the judiciary’s realm of concern with legal issues.

The case was appealed to the Ninth Circuit later that year when a new Attorney-General came into office. However, this appeal was abandoned on 19 June 2009 due to progress made in federal climate change policy after the election of President Obama. This included the EPA’s acknowledgement that carbon dioxide and other GHGs are dangerous to public health and so must be regulated and President Obama’s direction to the Department of Transport to establish higher standards for national fuel efficiency. Additionally defendants-appellees Chrysler and General Motors are now protected from creditors under Chapter 11 of the Bankruptcy Code.

By Jacqueline Peel | Posted in Case law, US climate change litigation | Comments (1)

Australian Renewable Energy Law

May 24, 2010 – 11:28 am

State Regulation

South Australian Solar Feed-In Scheme

The Electricity (Feed-In Scheme-Solar Systems) Amendment Act 2008 is the first solar feed-in law in Australia that will pay a premium guaranteed tariff of $0.44 per unit of electricity (kilowatt-hour, kWh), to households and small customers who feed solar electricity into the grid.

The law came into effect on 1 July 2008, and will continue in force for 20 years. For the relevant legislation see:
 http://www.legislation.sa.gov.au/LZ/V/A/…

In May 2009, South Australia reached 10 MW renewable capacity, which triggered a review of the feed-in scheme. The Terms of Reference and the formal announcement of the review were released on 31 October 2009 and submissions for the review closed on 23 November 2009. Independent consultant, Mr Paul Miley of Consulting Partners, is reviewing the submissions received, and is expected to provide a report to the State Government. See further:
 http://www.climatechange.sa.gov.au/index…

South Australia Renewable Energy Target

South Australia has also the most ambitious Renewable Energy Target in Australia with 20% to be achieved by 2014, as stated in the Climate Change and Greenhouse Emissions Reduction Act 2007, and a medium term target of 33% to be achieved by 2020, announced by the States Premier, Mike Rann, in June 2009.

For the Act see: http://www.legislation.sa.gov.au/LZ/C/A/…

For the 33% target see: http://www.renewablessa.sa.gov.au/files/…

Victorian Energy Efficiency Target (VEET) scheme

Under the Victorian Energy Efficiency Target Act 2007 (the VEET Act), relevant entities (i.e. persons who sell either electricity or gas, or both electricity and gas, to customers and have 5000 or more customers to whom either electricity or gas is, or both electricity and gas are, sold to in Victoria, and make scheme acquisitions in connection with the sale of either electricity or gas, or the sale of both electricity and gas, to those customers) have a legal obligation under the VEET Act to surrender Victorian energy efficiency certificates (VEECs) to the Essential Services Commission (Commission) annually between 1 January and 30 April for the previous calendar year in proportion to their scheme acquisitions.

Relevant entities are also required to lodge an audited energy acquisition statement with the Commission annually.
See further:
 http://www.esc.vic.gov.au/public/VEET/

The Essential Services Commission (Commission) administers the Victorian Energy Efficiency Target Act 2007 (VEET Act) and the Victorian Energy Efficiency Target Scheme Regulations 2008 (the VEET Regulations) with the aim of increasing uptake of energy efficiency measures in Victoria. The VEET scheme, as established by the VEET Act, will play an important role in achieving the Victorian government’s target of reducing greenhouse gas emissions from households by 10 per cent by 2010 and Victoria’s overall emissions by 60 per cent by 2050.

The Commission has also developed the Victorian Energy Efficiency Target Scheme Guidelines 2008 (the VEET Guidelines) to facilitate participation in the scheme.

For links for the legislation, regulations and guidelines see http://www.esc.vic.gov.au/public/VEET/Le…

Victorian Renewable Energy Target (VRET) scheme

The VRET scheme is ending and will transition in stages to the Commonwealth’s expanded Renewable Energy Target (eRET) throughout 2010. The transition and termination of VRET is a result of the Commonwealth establishment of the RET scheme through the enactment of the Renewable Energy (Electricity) Amendment Act 2009 (Commonwealth Amendment Act). The Commonwealth Amendment Act together with the Commonwealth’s Renewable Energy (Electricity) Amendments (Transitional Provisions) Regulations 2009 and the Victorian Government’s Victorian Renewable Energy Amendment Act 2009 (Victorian Amendment Act) provide the statutory instruments for how participants in the VRET scheme will transition to the RET scheme and the key dates. Links to the relevant legislation are below. See further:
 http://www.esc.vic.gov.au/public/VRET/

Victorian Premium feed-in tariff for solar

Victoria’s premium feed-in tariff offers Victorians with solar photovoltaic (PV) systems, up to five kilowatts in size, a guaranteed credit of at least 60 cents per kilowatt hour for excess electricity fed back into the grid at any time of the day or year.

The premium feed-in tariff for solar power, which commenced on 1 November 2009, will be available in Victoria for the next 15 years, for a total capacity of 100 megawatts of solar power across the state.
Relevant legislation can be found at: http://www.legislation.vic.gov.au/Domino…

Victorian Standard feed-in tariff

For wind, solar, hydro and biomass generation up to 100 kilowatts. Large renewable power systems for households, community organisations and small businesses (up to 100 kilowatts in size), including wind, solar, hydro and biomass, are eligible for the standard feed-in tariff, which pays the regular rate for excess power customers feed back into the electricity grid. All electricity retailers must have feed-in tariff offers for customers. However different electricity retailers may offer different packages or terms and conditions.

Find the relevant legislation at:
 http://www.legislation.vic.gov.au/Domino…

Other Feed-in Schemes for Solar exist

in NSW: Regulatory framework of the Solar Bonus Scheme is set out in the Electricity Supply Act 1995 and the Electricity Supply (General) Regulation 2001, with a generous 60 cent per kilowatt hour for small scale solar and wind (less than 10 kW capacity).

see: http://www.industry.nsw.gov.au/energy/su…

in ACT: small scale renewables of up to 30kW capacity, both wind and solar, can be fed into the grid for a gross tariff guaranteed for 20 years.

see: Electricity Feed-in (Renewable Energy Premium) Act 2008

The extension of the tariff to include bigger installations is in discussion at the moment,
see Discussion Paper from December 2009 and submissions at http://www.environment.act.gov.au/energy…

in Queensland: Queensland Government Solar Bonus Scheme, includes photovoltaic installations of up to 10 kW capacity, implemented by the Electricity Act 1994

for details see: http://www.cleanenergy.qld.gov.au/solar_…

in WA: WA has a Renewable Energy Buyback Scheme, requiring electrical corporations to purchase renewable energy from eligible customers ‘on fair and reasonable terms’, see Electricity Industry (Licence Conditions) Regulations 2005. Since August 2010, customers can additionally get a government funded residential feed-in-tariff, guaranteeing 40c per KWh for 10 years. This is a government subsidy administered by two electricity corporations, Horizon Power and Synergy. Both schemes are limited to sizes of 5kW for Synergy customers and 10kW per phase (maximum of 30kW) for Horizon Power customers.The option to expand the feed-in-scheme to commercial customers is currently being investigated.

For more information see: http://www.clean.energy.wa.gov.au/pages/…

Commonwealth Renewable Energy Target

RET is implemented through the following legislation:
- Renewable Energy (Electricity) Act 2000 (taking into account amendments of the Renewable Energy (Electricity) Amendment Acts 2009 and 2010)
- Renewable Energy (Electricity) (Charge) Act 2000 (taking into account amendments of the Renewable Energy (Electricity)(Charge) Amendment Acts 2009 and 2010)

The legislation establishes the framework for the RET including renewable energy targets, which must be achieved over the period 2001 to 2030, liability requirements, and outlines eligibility requirements for renewable energy sources and power stations.

The expanded Renewable Energy Target (RET) scheme was proposed in 2009 to encourage additional generation of electricity from renewable energy sources to meet the Government’s commitment to achieving a 20% share of renewables in Australia’s electricity supply in 2020. Two amendment bills were passed on 20 August 2009 and received Royal Assent on 8 September 2009. The legislation commenced on the 9 September 2009.

Amendments to the Renewable Energy (Electricity) Act 2000 included:
• Increase in, and extension of ,the renewable energy target.
• The target increases from 9,500 GWh to 45,000 GWh by 2020.
• The target is extended from 2020 to 2030.
• Solar Credits (REC Multiplier)

Solar credits is a mechanism under the expanded RET scheme which multiplies the number of RECs able to be created for the system. Solar Credits applies to eligible small generation units (small-scale solar PV, wind and hydro electricity systems) installed on or after 9 June 2009.

Amendments to the Renewable Energy (Electricity) Charge Act 2000 included:
• An increase of the shortfall charge from $40 per MWh to $65 per MWh.
• The shortfall charge encourages compliance with the RET as liable entities who do not meet their obligations to purchase renewable energy certificates will need to pay this shortfall charge.

Further amendments were made through the Renewable Energy (Electricity) Act 2000, Renewable Energy (Electricity) (Charge) Act 2000, and the Renewable Energy (Electricity) (Small-scale Technology Shortfall Charge) Act 2010, which came into force end of June 2010 and will mostly take effect on 1 January 2011. Changes to the now so called ‘enhanced renewable energy target scheme’ include most prominently the separation of large and small obligations under the target legislation. Liable entities will need to meet obligations under both schemes.

Most of the 2020 target, in total 41,000 GWh, are now to be achieved by a large-scale renewable energy target (LRET).
• The LRET will include large-scale energy projects such as windfarms,
• operates similarly to the expanded scheme with a yearly legislated targets leading up to the 2020-2030 target of 41,000 GWh per year

The remaining 4000 GWh are included in the small-scale renewable energy scheme (SRES). Features include:
• fixed price of $40 for small scale certificates (to be reviewed in 2014), produced by small generation units
• no cap, but regular review of $40 clearing house price

By Jacqueline Peel | Posted in Legislation and policy development | Comments Off

Australian law and policy on reducing GHG emissions

May 24, 2010 – 11:12 am

South Australia

The nation’s first climate change legislation became law on 3 July 2007. The Climate Change and Greenhouse Emissions Reduction Act 2007 makes South Australia the first place in Australia to legislate targets to reduce greenhouse emissions. For the legislation see:
 http://www.climatechange.sa.gov.au/index…

Victoria

The Victorian Government has released a Green Paper on climate change. This is expected to result in a further White Paper and climate change legislation. However, the shape of the latter has been thrown into doubt with the federal government’s decision in May 2010 to abandon plans for its ETS, the Carbon Pollution Reduction Scheme.

For the Green Paper see:
 http://www.climatechange.vic.gov.au/CA25…

Link for the Victorian government’s proposed bill (subject to change):
 http://www.climatechange.vic.gov.au/gree…

New South Wales

The Greenhouse Gas Reduction Scheme (GGAS) was created in 2002 through amendments to the Electricity Supply Act 1995 (the Act) and the Electricity Supply (General) Regulation 2001 (the Regulation). GGAS commenced operation on 1 January 2003. It was intended to be wound down on introduction of a federal ETS but with this policy now postponed indefinitely, GGAS may continue. For further details see:
 http://www.greenhousegas.nsw.gov.au/over…

Tasmania

Proposed Bill on climate change: Climate Change (State Action ) 40 of 2008. No progress made since 2008. For details see:
 http://www.parliament.tas.gov.au/bills/B…

Commonwealth

The Carbon Pollution Reduction Scheme legislative package comprised 11 Bills which were most recently introduced House of Representatives on 2 February 2010.

Carbon Pollution Reduction Scheme Bill 2010
Carbon Pollution Reduction Scheme (Consequential Amendments) Bill 2010
Carbon Pollution Reduction Scheme (Charges — General) Bill 2010
Carbon Pollution Reduction Scheme (Charges — Excise) Bill 2010
Carbon Pollution Reduction Scheme (Charges — Customs) Bill 2010
Customs Tariff Amendment (Carbon Pollution Reduction Scheme) Bill 2010
Excise Tariff Amendment (Carbon Pollution Reduction Scheme) Bill 2010
Carbon Pollution Reduction Scheme (CPRS Fuel Credits) (Consequential Amendments) Bill 2010
Carbon Pollution Reduction Scheme (CPRS Fuel Credits) Bill 2010
Carbon Pollution Reduction Scheme Amendment (Household Assistance) Bill 2010
Australian Climate Change Regulatory Authority Bill 2010

See further:
 http://www.climatechange.gov.au/governme…

These Bills will no longer be pursued with the government’s decision to defer any introduction of an ETS until 2013 at the earliest.

Other Commonwealth legislation on greenhouse and energy-related topics includes:

National Greenhouse and Energy Reporting Act 2007
National Greenhouse and Energy Reporting Regulations 2008
National Greenhouse and Energy Reporting (Measurement) Determination
Greenhouse and Energy Audit Framework
Greenhouse and Energy Reporting Office Privacy Statement

The National Greenhouse and Energy Reporting Act 2007 (the NGER Act) establishes the legislative framework for the National Greenhouse and Energy Reporting System. A number of legislative instruments sit under the NGER Act, providing greater detail about corporations’ obligations. For further details of how the various elements of the NGER legislative framework fit together see:
 http://www.climatechange.gov.au/governme…

By Jacqueline Peel | Posted in Legislation and policy development | Comments Off

Inuit petition to the Inter-American Commission on Human Rights

May 24, 2010 – 10:55 am

On 7 December 2005, an NGO consisting of the Inuit people of Alaska, Canada Greenland and Russia, the Inuit Circumpolar Conference (“ICC”), filed a petition to the Inter-American Commission on Human Rights (“IACHR”). The petition led by Sheila Watt-Cloutier, the elected chair of the ICC, claimed that the United States’ acts and omissions on climate policy had violated the Inuit’s human rights. The ICC petitioned the IACHR as they are one of only two American bodies within the Organization of American States with jurisdiction over the OAS Inter-American Human Rights System.

The ICC submitted that as one of the world’s largest producers of carbon emissions per capita, the United States’ failure to implement climate change polices violated the Inuits’ rights under the American Declaration of Rights and Duties of Man. The violated rights included, for example, the right to the benefits of their culture, the right to use and enjoy their personal property and lands they have traditionally used and occupied and the right to the preservation of health. Their petition highlighted the scientific studies finding that global warming affects weather patterns, thins the ice and hence impedes the Intuits’ ability to live off their polar environment.

The IACHR dismissed the petition in November the following year on the basis that the petition failed to establish ‘whether the alleged facts would tend to characterize a violation of rights protected by the American Declaration.’ The Petition has nonetheless been praised as one of the first climate change cases linking global warming with the violation of human rights.

By Jacqueline Peel | Posted in Case law, International climate change law | Comments (2)

Alanvale Pty Ltd & Anor v Southern Rural Water & Ors

May 21, 2010 – 11:32 am

Alanvale Pty Ltd & Anor v Southern Rural Water & Ors [2010] VCAT 480 (21 April 2010)

This case is available at: http://www.austlii.edu.au/au/cases/vic/V…

This case was heard by the Victorian Civil and Administrative Tribunal before Deputy President Helen Gibson, Member Ian Potts and Member Graeme David. It concerned the sustainability of ground water given the impact of climate change upon increased rainfall variability. The case arose as a result of an application by Alanvale Pty Ltd and AJ & KM Graham Pty Ltd under section 64 of the Water Act 1989 (Vic) to review a decision by the water authority not to grant licences for the extraction of groundwater to irrigate to agricultural properties.

The authority gave several reasons for its refusal, including increased ground water salinity due to the bores, future decreased rainfall levels due to climate change, and the impact of decreasing the aquifer on the rest of the region’s water levels causing shallow bores, and thus requiring bore deepening. The Authority also noted that this decision would be consistent with previous applications requesting increased water allocation. The applicants, on the other hand, argued that the Water Authority was being too conservative and ‘unfair’ in their decision and that there is sufficient capacity within the area for increased water extraction, without detrimental impact. Other landholders in the area also voiced their objections to the application. They noted the impact of increased extraction on their shallow bores along with the impact of flows into the Eumeralla River and other local waterways.

The Tribunal affirmed the decision of the water authority. They applied the precautionary principle to argue that, due to climate change, there is a lack of certainty about existing and future rainfall levels and thus the projected availability of groundwater. In making their decision the Tribunal had regard to: the water balance in the area; the impact of increasing numbers of tree plantations on the area’s water demands; the groundwater and surface water interactions from the ground to and from rivers and wetlands; coastal intrusions causing outflow of groundwater to the ocean; the long-term sustainability of water and, significantly, climate change, the precautionary principle and climate variability. They concluded that given the available water resources and sustainable limitations due to climate change, strategic and holistic decision-making means that granting a licences would be outside the overall objectives of the Water Act 1989 (Vic)

By Jacqueline Peel | Posted in Australian climate change litigation, Case law | Comments (1)

Myers v South Gippsland SC (No 2)

April 12, 2010 – 1:06 pm

Myers v South Gippsland SC (No 2) [2009] VCAT 2414 (19 November 2009).

This case is available at: http://www.austlii.edu.au/au/cases/vic/V….

This VCAT case, before Presiding Member Tracey Bilston-McGillen and Member Ian Potts, follows on from the initial interim decision in Myers v South Gippsland [2009] VCAT 1022 (22 June 2009). In the first case, Presiding Member Bilston-McGillen called for a coastal hazard vulnerability assessment prior to a decision on the application of a permit to subdivide a property into two lots. The coastal hazard vulnerability assessment was considered in this case, resulting in the dismissal of the application for subdivision.

The reasons for this decision came from the coastal hazard vulnerability assessment itself, along with the Members’ application of the precautionary approach endorsed by the following policy frameworks: the Victorian Coastal Strategy 2008, Managing Coastal Hazards and the Coastal Impacts of Climate Change and the General Practice Note 2008 (see my posting in the Australian case law section summarizing the content of these documents). Presiding Member Bilston-McGIllen and Member Ian Potts balanced the ‘findings of the coastal vulnerability assessment and policy framework with the expectation for development in this Township Zone’ [para 6]. They agreed with the findings of the expert coastal assessment, relying upon the expert’s evidence and assessment when making their decision that by 2100 the subdivision site would be inundated by sea water, including the dunes and the present road, even if there were a seawall protecting the road from storm surge.

Obiter comments made by VCAT in the case suggested that a regional, if not State wide, approach to assessing coastal risks would be preferable than addressing the issue of coastal vulnerability on a lot by lot or development by development basis. In the view of the Tribunal such an approach ‘should address issues and potential remedial actions, be they engineering or planning based, and seek to produce a coordinated response’.

By Jacqueline Peel | Posted in Australian climate change litigation, Case law | Comments Off