On Monday I read in The Australian that the NSW Land and Environment Court ruled Centennial Coal had failed to adequately consider the impact of greenhouse gas emissions from its proposed Anvil Hill coal mine in the Upper Hunter and so the approval it got from government for its environmental assessment is void. So at least for the moment the new coal mine is not going ahead. It has taken a couple of days for me to digest this information. The judgment is radical, if not surprising, and perhaps worth considering in some detail.
According to the judgment: “The area of land which constitutes Anvil Hill has a deposit of approximately 150 million tonnes of thermal coal. The proposed open cut mine will produce up to 10.5 million tonnes of coal per annum. The mine is intended to operate for 21 years. The intended use of this coal is for burning as fuel in power stations in New South Wales and overseas. There is an existing contract for sale of coal to Macquarie Generation, which operates the Bayswater and Liddell power stations. About half the coal is intended for export for use as fuel in power stations to produce electricity generally in Japan. There is no dispute that burning of coal will release substantial quantities of greenhouse gases into the atmosphere.”
At issue was whether the Director-General from the Department of Planning was legally bound to require greenhouse gas impacts of burning coal by third parties in environmental assessment of new coal mines … whether ecologically sustainable development principles were taken into account.
In deciding that the environmental assessment lodged by mining company Centennial Coal in respect of the Avil Hill Project was inadequate and therefore that the approval from the relevant government department was “void and without effect”, the Judge commented that:
“Burning coal to produce GHG [Greenhouse Gas] emissions in NSW will be conducted in activities subject to regulation under the EP&A Act. Overseas burning of the coal is also likely to be subject to overseas regulation. The release of GHG from power plants is likely to be subject to increasing regulation nationally and internationally. Technologies relating to GHG are developing and may change over the next two decades.”
“…The fact that an assessment of GHG emissions alone was required demonstrates that regard was intended to be had to the future impacts of GHG. The problem of climate change/global warming is an increasing problem which is recognised by the Director-General in taking into account the environmental concern about GHG emissions by requiring an analysis of these and that must include the effect on future generations.
“… ESD [Ecologically Sustainable Development] requires that there be integration of environmental and economic considerations in decision making about projects. The Director-General required GHG to be assessed in the environmental assessment and therefore clearly intended that it be taken into account.
“…The Applicant argued that while the decision is a subjective one reached by the Director-General it nevertheless raises a legal question. The Applicant’s counsel argued that the Director-General had to ask himself two questions in relation to the environmental assessment, (i) did the environmental assessment comply with the EAR [Environmental Assessment Regulation] and (ii) if not, can it be said that it generally complies with those requirements. As the environmental assessment provided did not contain a detailed analysis of GHG in conformity with the EAR it was clear that the Director-General did not ask himself the first question and he therefore fell into legal error.
“…Given the quite appropriate recognition by the Director-General that burning the thermal coal from the Anvil Hill Project will cause the release of substantial GHG in the environment which will contribute to climate change/global warming which, I surmise, is having and/or will have impacts on the Australian and consequently NSW environment it would appear that Bignold J’s test of causation based on a real and sufficient link is met. While the Director-General argued that the use of the coal as fuel occurred only through voluntary, independent human action, that alone does not break the necessary link to impacts arising from this activity given that the impact is climate change/global warming to which this contributes. In submissions the parties provided various scenarios where this approach would lead to unsatisfactory outcomes such as, in the Director-General’s submissions, the need to assess the GHG emissions from the use of ships built in a shipyard which use fossil fuels. Ultimately, it is an issue of fact and degree to be considered in each case, which has been recognised in cases such as Minister for Environment and Heritage v Queensland Conservation Council Inc and Another (2004) 139 FCR 24, by the Full Court at [53].
“…The Applicant’s Points of Claim challenge the Director-General’s opinion that the environmental assessment prepared by Centennial was adequate because he failed to take into account ESD principles, particularly the precautionary principle and the principle of intergenerational equity. … the precautionary principle—namely, that if there are threats of serious or irreversible environmental damage, lack of full scientific certainty should not be used as a reason for postponing measures to prevent environmental degradation.
“… If the DG had adopted a sceptical approach to the climate change issue, and had declined to require the EA to address this (or to address downstream GHG emissions) because of this scepticism, and if in so doing he had failed to consider the precautionary principle, then there may be basis for legal complaint. That is not this case.
“…I also conclude that the Director-General failed to take into account the precautionary principle when he decided that the environmental assessment of Centennial was adequate, as already found in relation to intergenerational equity at par 126. This was a failure to comply with a legal requirement.”
Read the full judgment here: http://www.lawlink.nsw.gov.au/lecjudgments/2006nswlec.nsf/61f584670edbfba2ca2570d40081f438/dc4df619de3b3f02ca257228001de798?OpenDocument
I reckon, based on the tangle of legislation currently in place in Australia, that the judgement was inevitable. A real problem into the future is that governments (from both sides of politics) have enacted legislation based on environmental campaigning that is unreasonable. They have enacted legislation that is at core about stopping development including through use of the precautionary principle, rather than weighing up the costs and benefits of resource use.
Jennifer Marohasy BSc PhD is a critical thinker with expertise in the scientific method.
Jennifer,
Your last paragraph above is spot on.
Food for thought..Wonder whether it would be possible to challenge, say in the L & E Court whether AGW was a fact that could be proven. I doubt that it could be. Maybe the challenge should be in a higher court challenging the IPCC on this very issue. One wonders whether the westminster tradition of innocent until proved guilty would prevail?
What the judge has not been told is that the emissions caused by exported coal are the responsibility of another jurisdiction, in this case, Japan. Under IPCC rules, they are emissions that take place in Japan and relate to carbon that will be sold in a stable condition by the vendor. The act of burning the coal and releasing the carbon will be entirely at the disgression of the buyer.
The other thing the Judge was not told, or the DG did not formally consider, was that the remaining local emissions, and all reasonably foreseeable emissions in Australia over the life of the mine, are fully absorbed by either Australian vegetation and soils, or by Australia’s territorial waters.
So these emissions will occur at a time and place on earth where the full suite of ecological systems are capable of processing them without risk.
This is not the case for European emissions where the output from 750 million people cannot be processed without risk in that location by the limited area of ocean within their proximity.
Consequently, these NSW emissions will not trigger either the precautionary principle nor the principle of intergenerational equity. Emissions in the southern hemisphere can be and are adequately dealt with by the vast ocean ecosystems and therefore DO NOT pose “a threat of serious or irreparable harm”.
The Europeans have got together at the IPCC to export, and therefore universalise, their own local environmental problem. In this way the costs that they should rightfully incur to correct their ecological imbalances are imposed on all advanced nations in a way that actually bestows a trade advantage on the EEC nations.
There is a clear hierachy in ecological responsibility where local ecosystems must deal with local adverse impacts. There is no divine right of white men to export their costs (emissions) to be dealt with by other ecosystems.
So how the hell did these Eurospivs get away with shifting the burden of corrective measures onto other nations who’s emissions are well within the local ecosystem’s capacity to deal with them?
My guess, however, is that the EPA is deliberately running an incompetent legal defence at the behest of their green masters. And the other parts of “Spiv Central” are too slow to pick up on what they are up to.
Sartor was quick to say that the judgement had no real effect and that the approval was not void, that all he had to do was ‘consider’ GHG.
Subsequently he must have taken advice as he is now taking the judgement more seriously; Sartor was found to have failed to comply with the law.
Currently there is a bill before the NSW parliament that would remove the requirement that development proposals contain an adequate environmental assessment, presumably this would also apply to mines.
The Land & Environment Court decision can be appealed in the Supreme Court – the law can be changed – the ALP are now between a rock and a hard place on GHG.
All this appears to mean is that it will be reassessed by the DG and then approved. The real cost is the opportunity cost of having the money tied up in the project for longer than it need be, and potentially missing a good market in coal prices.
Good points by Ian. I’ve been arguing similarly for a while that if the world had our population density then there wouldn’t be a GHG problem with our level of CO2 production. I call it “The Australian Solution”. Another good idea we should be trying to export.
“I’ve been arguing similarly for a while that if the world had our population density then there wouldn’t be a GHG problem with our level of CO2 production. I call it “The Australian Solution”. Another good idea we should be trying to export.”
What, mass extermination? But that kind of negative growth flies in the face of your standard economic model (the type Jens IPA worships as a deity).
It seems we’d rather be exporting australia’s record of global highest per capita CO2 output instead then? Wouldnt that be something, 6 billion people polluting like australians!
The US EPA is before the courts on a charge that they have failed to properly administer the Clean Air Act
http://www.usatoday.com/news/washington/judicial/2006-11-28-court-global-warming_x.htm
Sid R “wonders whether the westminster tradition of innocent until proved guilty would prevail?”
Snigger, very unlikely Sid. The principle is innocent UNLESS proven guilty. ‘Until’ is the attitude of the litigious.
Graham Young: “..arguing .. if the world had our population density then there wouldn’t be a GHG problem…”
A futile argument Graham. You’re just banging pots & pans together until you dull everyone’s senses.
Dead wrong, Julian and Pinxie.
Europe and the Eastern USA have a problem because their combined population of 950 million, high emission lifestyle, consumers are pumping out more pollution than the North Atlantic, The Mediteranean, The Baltic and the Black Sea combined can deal with.
The simple message to any community that exceeds their local environments capacity to cope is to reduce their production of pollutants.
The Europeans did not like the implications of this solution so they declared all the worlds oceans to be “commons” owned by all people.
One can obviously understand why the landlocked Swiss and Austrians and the oceanically challenged Belgians, Dutch, Danes, Swedes and French might see some merit in this option.
But the only problem is that it is an error of legal fact. The UN does recognise territorial waters that are the exclusive possession of sovereign nations.
It is also a matter of scientific fact that the carbon emissions of European and North American nations will, almost entirely, impact on that regional biosphere. And only after their emissions have exceeded their regional environment’s capacity to cope will the excess be exported to the rest of the world.
This, given the extent to which the Europeans have been willing to share the wealth that has created those emissions, ie., zero, can only be regarded as the most obscene hypocrisy.
The simple facts of the matter are that our major trading partners have yet to produce the level of emissions that would compromise their own regional environment’s capacity to cope.
And as we clearly have not exceeded our own environments capacity to cope, then we have every right to say, this is your problem, fix it yourself.
Remember, this concentration of wealth and emission capacity is the result of 5 centuries of one way capital flow into Europe. We would be the all time bunnies if we let them spend the next 5 centuries sending their ecological problems the other way.
What kind of cuckoo land is the NSW Land and Environment living in? Climate scientists cannot figure out what impact CO2 actualy has on global temperature so how is this coal mining company supposed to do it?
Sure there’s reasonable evidence that burning all of that coal should cause a tiny bit of warming because the CO2 will absorb radiation. On the other hand, that absorbed radiation will be re-radiated in all directions (including up as well as down) and scientists have bugger-all idea how the various feedbacks act and interact. A close look at teperature and CO2 data indicates that the increase in CO2 has no discernible impact on temperature.
Maybe the mining company should cut out all the crap and say that burning their coal will cause 0.000000000000000000001 degree of warming and challenge the court to disprove it.
Thanks Pinxi,
Mine was a blooper, ‘unless’ is the word, rather then ‘until’, which has a different connotation, as the legals well know.
Sid Reynolds
Well all your comments well illustrate the problem (and before you start chucking rocks at me – settle the f down).
This is what it feels like to take some action.
Banning a coal mine – how friggin stupid cried the crowd – what about the economy – the CO2 effects are unproven – bleat bleat whinge alarmist reactions. You all didn’t like it did you? More alarmism than an AGW transatlantic conveyor scare.
But do you think it’s gonna stick. Only the lawyers will get rich out of it and the pollies will cave in to the inevitable backlash. You’ll get you coal mine. Don’t fret.
I think Johnny knows that electorate wants something done but not if it means paying more for power, not going down to Harvey Norman for the plasma TV (incidentally guys should I get the plasma or LCD what do you reckon?? and what’s this 7:1 shit compared to 5:1 – will it get me off or should I but a jet ski?), or doing without some jobs for the kiddies. But wtf – do we want them working in coal mines – OK someone elses’s kids then.
We all thought we did our bit for the environment with yellow wheelie bins and dolphin free tuna. Nobody said anything about giving up lifestyle or money did they? Was cost neutral or more efficient was it not?
BTW – you’bve been indulging in some numb nuts arguments as usual.
Yes it’s only a pompteenth of a degree of warming in effect (err John calculates 0.000000000000000000001 but I got 0.0000000000000000000001 when i did it.) but lotsa pompteenths add up. Have to start somewhere. Or maybe we don’t if it’s all b/s.
As for the re-radiated in all directions – John is right on the money – 50% is down to warm the place up again ! (that’s the point and how it works). Well 0.000000000000000000001 of the point at least.
And as for Motty and how wonderful the southern hemsiphere sinks are – nice try – but for all you know our CO2 gets sunk all over the place. Do we tag each molecule and who sinks it. Maybe I’ve absorbed some of teh property rights exhaled CO2. If so I’m bloody annoyed and want to exchange it. The local bio-sinks argument ain’t gonna get a run past the blog whingy sections – it’s per capita and that’s that. Nobody is going to pay for background natural sinks. It’s the “background”. Australia the worst in the world per capita GHG emissions (OK maybe Iceland is – but who are they anyway).
And hey do we look worried. Nah it’s all b/s so it will blow over. It’s already cooling since 1998 isn’t it?
Solar torque is about to kick in.
Well yes we all are actually very worried on paper at least – everyone is talking about climate change now – even the IPA has got a climate change policy – until we realise that it will cost money to do anything about it, or until it rains and the drought’s over.
As I said settle down – you’ll all get your coal mine. Don’t worry. Johnny and the IPA will save you. (and the rest of us).
You’re all simply not ready yet. Give it a few more decades and check back then.
Don’t come the raw prawn with me Motty, farmed or not. You’d know well my position on pollution and you dismiss most of the GW science. Australians can hardly claim to be GHG role models or act superior over popn density. What’s the point arguing Australia can export Australia’s approach to GHG emissions & popn density? Wake up and smell the exhaust fumes.
Sid it reminds me of thinkspeak. That ‘until proven guilty’ phrase has entered the national psyche now. I wouldn’t have picked up on it if I hadn’t recently heard the same criticism from someone else.
Never argue with an idiot. They will drag you down to their level then beat you with experience.
GW Science is technically sophisticated religion -because its conclusion, climate change, is unfalsifiable. Anthropogenic global warming is falsifiable, and on evidence to date, false.
Science is not based on argument or persuasion but self-evident fact.
What are you banging on about pinxii, “innocent until proven guilty” is the Principle of Presumption of Innocence and the actual phrase is enshrined in various statutes incl the UN.
Here we go, UN declaration of human rights,
Article 11.
(1) Everyone charged with a penal offence has the right to be presumed innocent until proved guilty according to law in a public trial at which he has had all the guarantees necessary for his defence.
You could of course argue with Louis and divert the thread but of course why bother – we’ve heard it all before and he’ll either do one liners or a runner. You forgot the socialist/commie stuff though. Shoddy work Louis. zzzzzzzzzzzzzzzz
You could of course argue with Louis and divert the thread but of course why bother – we’ve heard it all before and he’ll either do one liners or a runner. You forgot the socialist/commie stuff though. Shoddy work Louis. zzzzzzzzzzzzzzzz
rog you’re usually here denying human rights, not quoting from the UN declaration. That declaration was crafted in dark days with much influence from certain parties. The principle was once unless and until proven guilty — the ‘until’ referring to the handing down of the verdict. It’s become an case of thinkspeak. ‘Until’ is properly avoided because it carries a presumption of guilt which contradicts the presumption of innocence.
“Science is not based on argument or persuasion but self-evident fact.”
Nice to see that Louis has learnt a thing or 2 since that abiotic oil post – the only subject to ever unite all commenters.
The WTO recently ruled, in the case involving the EU and GMO crops, that the EU was in violation of international obligations to the extent that it had employed the precautionary principle in its decision-making process. In other words, reliance on the precautionary principle is, in effect, a confession that a decision was not based on provable facts.
Enshrining the precautionary principle in Australia’s legal system will lead to severe and irreversible repercussions both domestically and abroad and it is alarming to see it employed like this.
Under the PP presumption of innocence becomes the presumption of guilt, the onus is on the accused to prove their innocence.
The Wingspread Statement defines the PP: “When an activity raises threats of harm to human health or the environment, precautionary measures should be taken even if some cause and effect relationships are not fully established scientifically….In this context the proponent of an activity, rather than the public, should bear the burden of proof.”
http://www.sehn.org/wing.html
An example of PP is “We cannot consider GMOs harmless until harmful effects are fully proven” (sic) – Greenpeace. http://www.commondreams.org/pressreleases/may99/052099a.htm
In the Anvil Hill case the judge said that the “Director-General failed to take into account the precautionary principle ….This was a failure to comply with a legal requirement.”
The judge also said “..lack of full scientific certainty should not be used as a reason for postponing measures to prevent environmental degradation.”
There is a serious problem here, by stealth environmentalists have reversed the commonly held principles of law in which guilt must be proved and proved by evidence that is beyond reasonable doubt.
The law has become a logical fallacy requiring any activity to prove a negative.
The argument could be turned around, PP can be employed against Greenpeace et al to prove that their alternative energy/food/resource management will provide for a growing world population and sustain natural biodiversity and preserve world peace.
rog this is the kind of illogical reasoning that your favourite shock jocks act out.
You equate a legal presumption of innocence for a person being charged and tried under criminal laws (ie someone actually facing court and a prospect of gaol) with onus of proof under the Precautionary Principle as an organisational guideline on assessing the effects, where there is suspected harm, before a project or an action proceeds. A legal requirement to perform an assessment to check if actions (of an organisation, usually) will cause harm to others is something very different to a presumption of innocent for an individual charged with criminal acts.
What would you recommend, that companies and individuals have free licence to throw caution to the wind and do whatever the hell they want, without regard to whether their actions will harm others? PP came about to address deficiencies in a system that would put the onus on a victim and after the fact. To defend your argument you need to justify that kind of system.
I’ll take the lead. Some rationales for the PP are:
* prevention before cure (some effects are irreversible or simply costly to fix, and the case of human health shouldn’t happen at all if they’re easily prevented)
* cause and effect, and source – it’s easier to nail those relationships down if the proponent of an activity has an incentive to be involved, when you can make before & after comparisons, and when any tom dick or harry doesn’t have a free license to pollute willy nilly
* proportionality & accountability: eg how to hold a polluter accountable after they’re racked off to another country, gone broke, carried out an expensive PR programme to distort perceptions, or disbanded the company? And how to make the onus proportional to the number of parties, risks and interests involved?
* costs of organisation and representation (and concentration of benefits): to defend the rights of ‘victims’ who may be poor, uneducated and large in number, difficulties organising themselves, and have trouble proving the source and connection with the harm (poorer people tend to live in areas with more pollution and degradation)
* to balance abuse of powers (vested interests and concentrated wealth)
*** basic human decency: you don’t (knowingly) hurt someone and then deny responsibility unless they can prove you hurt them, (esp if the resources and system are stacked in yr favour)
rog you show scant regard for human rights. why should businesses be given freedom to pollute as priority over maximising welfare for society at large?
“why should businesses be given freedom to pollute ..”
This is not about “freedom to pollute” it is about being found guilty of polluting without evidence.
Poppycock and mothballs rog. Onus of proof falls on one party or the other. The PP puts that onus on the proponent of an activity (for good reasons mentioned above). It doesn’t throw good legal practice out the window, it still requires evidence (unlike your opinions).
Rog, You make a good point.
Pinxi, You make a valid point or two in rebuttle, but you have essentially side-stepped the important point raised by Rog.
There is a previous blog post of some relevance here: http://www.jennifermarohasy.com/blog/archives/000929.html
What is that important point, in a nutshell?
rog protest comes across a bit half-baked, yet another ‘I should be able to do what I wanna do’ defence.
None of the linked arguments undermine the good reasons to make use of the PP. What they do is question:
>> the local interpretation and application of the principle, and
>> the level of precaution which is desirable.
The level of precaution is the hot issue: very cautious, slightly cautious, etc.
An original definition of the principle included a reasonable risk of harm, and lack of scientific certainty not being an obstacle to ‘cost effective action’. Tests of reasonableness should still apply in legal judgements. Best practice also includes comparing the costs and risks with the current situations and other alternatives. The principle is valid for proposed activities, but needs refinement for legal cases. Unfortunately informed and well-reasoned debate on such matters of public interest rarely occurs in Australia.
Pinxi, Rog, John and others,
The judgment relied heavily on the ‘precautionary principle’, namely, that if there are threats of serious or irreversible environmental damage, lack of full scientific certainty should not be used as a reason for postponing measures to prevent environmental degradation.
After his win, Mr Gray said: “It’s not as simple as closing down the coal industry … but let’s look at the damage coal does. …The thrust of the case was not that you should not approve Anvil Hill but that it should be assessed [for climate change] before it goes ahead.”
Now about half the coal from the proposed mine at Anvil Hill is intended for export to Japan for use in power stations to produce electricity.
In calculating the likely impact of the greenhouse gas emissions from the coal from the Anvil Hill mine on global climate, the proponents of the mine would need to first determine what fraction of a percent their coal was relative to all the coal mined in the world and then what percentage this was of total global greenhouse emissions remembering that carbon dioxide is only one greenhouse gas, with methane and nitrous oxide also contribute to warming.
Once the contribution of Anvil Hill relative to other sources of greenhouse gases was determined, then perhaps this fraction of a fraction of a percentage could be feed into one of the Intergovernmental Panel on Climate Change’s Climate Models which according to the 1996 Second Assessment Report (SAR) has predicted that the earth’s temperature could increase by as much as 0.9 to 3.5 degrees Celsius.
… in practical terms is this what is required in order to address the precautionary principle?
A lot of the population have become what I think of as the “Unthinking Greens”.
A recent What The People Want survey, found that a majority [largely green voters] were in favor of a carbon tax, a nice green thing to be in favor of.
The same servey found that a much smaller number of them were prepared to accept an increase in their power charges, resulting from a carbon tax.
I wonder who they thought would pay the tax?
Many are slightly in favor of green action, until made aware of the logical result of that action.
When the financial results of this “green” excess start to bite, most of this thoughtless, feel good, green support will rapidly fade into the mists of history. People will realise we can’t afford the indulgence of pandering to a noisy minority, no matter how genuinely they believe in their cause.
We are about to come under a real economic challenge from asia, which will strain our accepted standard of living. I expect this will bring many back to earth, with a thud. I just hope the pain is spread equally through the public sector, as well as the private.
Just filing this link here: http://www.smh.com.au/news/environment/landmark-climate-change-ruling-puts-heat-on-industry/2006/11/27/1164476140463.html
The judge has failed to consider the full context in which the precautionary principle has been implemented in Australia under the Intergovernmental Agreement on the Environment 1992, signed by all states and the feds.
Article 3.4 outlines the manner in which environmental considerations will be be taken into account by among other things;
(i) ensuring that environmental issues associated with a proposed project, program or policy will be taken into consideration in the decision making process,
(ii) ensuring that there is a proper examination of matters which significantly affect the environment; and
(iii) ensuring that measures adopted should be cost effective and not be disproportionate to the significance of the environmental problems being addressed.
And it is in the following section 3.5 that the precautionary principle, intergenerational equity, conservation of biodiversity and, improved valuation and pricing, are listed.
They are clearly subordinate to 3.4 (ii) & (iii) which clearly impose a duty to take informed decisions and impose a test of significance and proportion to the application of the precautionary principle. It has never been meant to operate as a blank cheque for any and every imaginable regul;ation or measure.
And in case there is any doubt on this matter, the Precautionary Principle itself begins with the words;
“where there are threats of serious or irreversible environmental damage, the lack of full certainty etc, etc”
This imposes a burden, on the person proposing the application of the precautionary principle, to at least establish a prima facie case that serious or irreversible environmental damage is likely. It does not allow the precautionary principle to be applied to vague possibilities of damage or emotive, exaggerated fear of damage.
And even if it did not impose this burden, the principle must still be applied within the framework defined by our legal rights in judicial review. These define, among others, improper exercise of power, which includes, failing to take relevant considerations into account, placing excess reliance on irrelevant considerations, and exercising power at the behest of others etc.
And as I have mentioned numerous times on this blog, the most relevant of considerations is the capacity of new technology (like clean coal & nuclear power) to provide more cost effective measures.
The issue of proportionate responses in relation to the size of Australian emissions and the capacity of our own biosphere to deal with those emissions would also appear to be a “relevant consideration” that must be taken into account.
Motty could do that calculation on the seal of his envelope
Lets separate the unthinking alarmism from the facts:
– the project has not been knocked on the head, it ‘s sure to go ahead regardless
– there is no legal judgement based on an application of the PP
– the requirement is for the EIA to consider the GHG impacts so that an informed decision can be made.
– the judge made it clear there must be a serious threat and a solid causal link
– the judge made it clear that its not yet certain that the PP needs to be applied, and is requesting that information is assessed:
“If the precautionary principle does have a role to play… ”
“.. the extent to which the precautionary principle applies is as yet undetermined. What is required is that the Director-General ensure that there is sufficient information before the Minister to enable his consideration of all relevant matters so that if there is serious or irreversible environmental damage from climate change/global warming and there is scientific uncertainty about the impact he can determine if there are measures he should consider to prevent environmental degradation in relation to this project.”
What dya reckon the odds are the the DG will find that this project is a serious GW threat? Or for any singular project in Aust for that matter? Alarmists! There’s no avenue for a draconian application of the PP, it’s simply one of mnay factors to be considered in an EIA final decision. If it gets that far, with appeals and all.
Pinxi,
You’ve defended the Precautionary Principle and the decision. I’ve suggested it was inevitable if radical. Now am I on track with my previous comment (posted 10.14am) in terms of working out possible impact? Given this is important accepting the precautionary principle… How would you go about calculating the impact of the mine and product from the mine on global climate?
Motty,
What would your back of the envelope calculation be? How would you go about implementing the judge’s recommendation that GHG emissions be taken into consideration?
What you have written so far as comment above is outside current thinking in so much as current accounting on greenhouse doesn’t let you off set in the way you suggest … could you for a minute step inside the current ‘paradigm’ and give me some practical advice?
Filing this new link on newsbreaking legal developments on legislation and climate change science in the USA.
http://www.realclimate.org/index.php?p=376
Consider the Precautionary Principle and Richard Ness.
In the case of Richard Ness, the “lack of scientific certainty” is abundant, even rampant–triggering use of the Principle. Which of course demands that he be locked up until absolute scientific certitude in his case is achieved.
Mr. Ness will not survive this burden of proof; no one has ever grown so old.
Eco-whackos will protest that this does not accurately portray the use of the Precautionary Principle, but with a few million dead to prove it’s used that way, dead by “mere attrition,” Ness would merely be one more death on the “guilty till proved innocent” principle.
For more information, check out the new book,
“Eco-Freaks: Environmentalism Is Hazardous to Your Health!”
http://www.amazon.com/exec/obidos/ASIN/1595550674/thomasnelsoni-20
Excerpt from review of the book:
“John Berlau has a mesage that must not be ignored: environmentalism – and environmentalists – are hazardous to your health and safety. Far from being a crackpot, Berlau exposes leading environmentalists for the crackpots, often dishonest crackpots, they are. More importantly, more shockingly, Berlau patiently explains in detail just how environmentalism, often based on pseudo-science or outright falsity, is killing people or subjecting them to unnecessary danger.
Everyday, children in Africa and other places die from malaria and other preventable diseases – because of the zeal of so-called environmentalists in insisting on a ban of DDT. DDT has never been proven to cause disease in humans or to be a danger to animals in normal amounts, but its effectiveness in combatting mosquito-borne diseases is unquestioned. In fact, some environmentalists may actually see the untold thousands of preventable deaths as a blessing, helping to keep the Earth’s population under control.”
US opinion
“Four Justices — Stephen G. Breyer, Ruth Bader Ginsburg, David H. Souter and John Paul Stevens — said enough to suggest that they would favor “standing” to challenge EPA. Chief Justice John G. Roberts, Jr., and Justices Samuel A. Alito, Jr., and Antonin Scalia revealed themselves to be unpersuaded that those who are complaining have shown either that they face “imminent” injury from EPA’s decision, or that EPA could do anything about global warming even if it did act. Justice Clarence Thomas might be expected to share their reaction, although he said nothing. Thus, a 4-4 vote among those eight would turn over the conclusion, at least on “standing,” to Kennedy.”
“…in the Massachusetts case, Kennedy suggested that the Court could not bypass the larger question of whether global warming is a problem, in order to assess who might be harmed by it, “because there’s no injury if there’s not global warming.” And he at least implied that the risk from climate change was great enough that perhaps it should take less evidence to show that a federal agency should act to deal with the risk — and thus redress the harm from global warming. He also raised the possibility that states might have some special right to sue, over the prospect of having large acreages of their coastal land submerged by rising seas.”
http://www.scotusblog.com/movabletype/archives/2006/11/analysis_kenned.html#more
Schiller – have green organisations prevented DDT actually being used? Seems to be being used from what I hear?
If you are fair dinkum you would also be insisting US Corporations stop flogging cigarettes into Africa. This time bomb from corporate America will eclipse everything else.
And we have experiences with Ok Tedi and Bhopal to remember. Corners do get cut for expediency.
Marginal drifting sophistic arguments Schiller. Never fullsome or comprehensive. Always chipping away prudent barriers that might stop you making a quick buck.
Convince me you’re genuine !
When you present a balanced perspective you may have a chance of getting my attention.
To answer Jennifers Q; ” .. what is required in order to address the precautionary principle?” I believe negatives not positives are to be assessed using PP ie benefits of an action are not considered.
The problem with PP is in defining it, it is not necessarily evidence based. Risk assessment is of known risks, PP is of potential risks.
Under PP we could all live in a world where reason has been abandoned and all risk and innovation has been eliminated.
Rog,
The EPA of the USA is not a very reliable source.
http://www.acsh.org/healthissues/newsID.442/healthissue_detail.asp
American Council on Science and Health
THE DDT BAN TURNS 30 — Millions Dead of Malaria Because of Ban, More Deaths Likely
By Todd Seavey Posted: Saturday, June 1, 2002
Thirty years ago, on June l4, l972, the Environmental Protection Agency’s first administrator, William Ruckelshaus, rebuffed the advice of his scientific advisors and announced a ban on virtually all domestic uses of the pesticide DDT. This was done despite the fact that DDT had earlier been hailed as a “miracle” chemical that repelled and killed mosquitoes that carry malaria, a disease that can be fatal to humans.
Ruckelshaus (who later worked with the Environmental Defense Fund, the very activist organization that had urged the ban) cited health concerns in defending his decision. He reported that DDT (dichlorodiphenyltrichlorethane) killed many beneficial insects, birds, and aquatic animals – not just malarial mosquitoes – and that it “presents a carcinogenic risk” to humans, based on laboratory studies showing increased cancer risk in mice fed extremely high doses. The scientific community was outspoken in opposing such a ban, noting that there was no evidence that DDT posed a hazard to human health. Yet the ban still took effect.
http://www.jpands.org/vol9no3/edwards.pdf
Journal of American Physicians and Surgeons Volume 9 Number 3 Fall 2004 DDT: A Case Study in Scientific Fraud J. Gordon Edwards, Ph.D.
In his final 113-page decision issued on April 25, 1972, Hearing Examiner Edmund Sweeney wrote: .DDT is not a carcinogenic, mutagenic, or teratogenic hazard to man. The uses under regulations involved here do not have a deleterious effect on fresh water fish, estuarine organisms, wild birds, or other wildlife.and.there is a present need for essential uses of DDT..
This decision, however, was overruled by EPA Administrator William Ruckelshaus, who never attended a single day of the seven months of DDT hearings. In his 40-page Final Opinion, handed down on June 2, 1972, he omitted most scientific data, misnamed the major chemicals involved, and proposed that farmers .should use organophosphates, like carbaryl, instead.. (Carbaryl is an organophosphate). He also recommended substituting parathion, a very deadly chemical, for DDT. He later wrote that .in such decisions the ultimate judgement remains political. (W. Ruckelshaus, letter to American Farm Bureau President Allan Grant,April 26, 1979).
The “precautionary principle” only makes sense if one has a good understanding of the risks and the consequences.
According to the precautionary principle you should not get out of bed because you risk getting injured – but staying in bed and getting no exercise will kill you too. Of course you can try staying in bed and exercising but the bed might break and you get injured. Why do we get out of bed? Because we can assess the risk of injury and determine that they are are very minor.
Forcing the owners of a proposed coalmine to undertake an evaluation on the precautionary principle is just plain stoopid when it is simply impossible to evaluate the climatological consequences of burning that coal.
By the way, what about an assessment of the consequences of NOT burning that coal? The coal will supply power generation here and overseas so let’s see… Far more people die from cold than heat… a shortage of electricity could lead to blackouts and they could be very dangerous… the economic impacts of unreliable or insufficient power could have many serious consequences…
Luke,
Take it from me–you heard it here first–blocking DDT, US Corporations flogging cigarettes into Africa, Ok Tedi and Bhopal are a plot by the Illuminati.
I have no idea what these wildly disparate elements have to do with each other, but apparently you do. So come clean about your membership and explain, please. We hang on your every word.
Schiller – I am not a member of any NGO, green, religious or political organisation. Just me.
In return would you care to declare what organisations you are a member of then?
Schiller – do you really think we’re that gullible. It is a lot more complex than the bolsh you selectively try to dupe us with.
Health effects are evident in many studies. The ban has not stopped its use in the 3rd world.
When you give a fullsome balanced account I might start listening. Till then you’re sin binned.
Google Deltoid on DDT, Wiki on DDT or http://info-pollution.com/ddtban.htm
Sorry for diversion, don’t chase the rabbit, and back to the NSW coal mine pls.
risk assessment is as grey an area as they come (for rog)
Jennifer I don’t think I defended this decision. I did point out that it was being misintepreted (see my last post for those distinctions).
To answer your question to me I don’t think the mine has a significant enough impact on GHGs or the connection between this project and GW is direct and strong enough for a judicious application of the PP to halt it. If this was to happen I don’t think it would be the best approach. ie if we generally agreed that we wanted to tackle A/GW then this wouldn’t be the ideal approach or mechanism – instead we should tackle it head on in a co-ordinated & strategic way. If the decision stands I think the biggest short term ramification will be to increase consideration of the issue through EIA and discussions. Even the judge said the GHG issue should not overrule other considerations in that process.
After reading through the judges comments I have no problem with his conclusions.
To me, this all appears to be very healthy, and I hope it would generate some informed debate in the wider Australian community about how difficult it really is to include some externalities into an assessment of the benefits and costs of any development project.
Any approach to quantify externalities is going to be by necessity, a blunt instrument, and in examples like this one I personally cannot see how it would be possible to get any reliable figures for the likely contributions to global CO2 levels for the product of this development and/or the likely impact of that. However, that does not mean we should give up trying, just because it seems hard -does it?
In my view the role of EIA is to provide the public with the very best information upon which to base decisions about the benefits and costs of a development proposal. The extent to which the public is prepared to accept a cost, is really up to the public, and in my experience varies considerably, and often defies logic. But thats how the system operates.
Here the judge is telling the department it has not adequately addressed the externalities issue, so now the department has to either revisit its submission and try to incorporate the necessary information the judge considers is missing, or lobby wider government and the public for a change in the legislation that removes the problem…..perhaps by coming up with a suitable compromise. Whatever that may be?
I see no harm in that process at all -if the department can come up with an acceptable method of satisfying the judges interpretation – good. If they cannot and decide to appeal, and an appeals assesment finds the judge at fault -good.
If the government/public decide the legislation needs to be amended -good.
There is no need to throw the baby out with the bathwater.
When Jen says the judgment was inevitable and they have enacted legislation that is at core about stopping development including through use of the precautionary principle etc. she is facing the reality of our environment legislation, dating back to the 1970’s.
Since then no Australian industry has the automatic right to pollute what ever or where ever on behalf of who ever.
We should all note the same situation will occur in other places including the USA when their environment laws will bite into energy producers and manufacturers alike as rog notes. Rising sea levels will eventually cost somebody a lot of money. Asking someone like Pinxi and Motty to do sums on lost business opportunities is nonsense at this stage.
Jennifer; I used to be the last person to think we had to stop growth by limiting our use of fossil fuels but it’s unfortunately come to that because industry on its own won’t do it until there is some new form of demand. For instance while reading up on the situation in Nigeria I was forced to review again the history of waste around their oil fields. A clean up there requires international pressure on the companies and to hell with the price. Also some things are not worth doing at any price when we look at all the facts.
John gets into the discussion with “Far more people die from cold than heat… a shortage of electricity could lead to blackouts and they could be very dangerous… the economic impacts of unreliable or insufficient power could have many serious consequences”.
Apart from excess heat killing people like flies, blackout theory based on insufficient generators in the grid as both national and local demand grows, used to be until recently, one of my key arguments for caring on with old forms of development like more thermal power stations.
SMH:
A reality that greenhouse idealists choose to ignore
http://www.smh.com.au/news/opinion/a-reality-that-greenhouse-idealists-choose-to-ignore/2006/11/29/1164777653366.html?page=fullpage#contentSwap1
Mark O’Neill
November 30, 2006
If coal exports from the proposed Anvil Hill mine do not go ahead, not one molecule less carbon dioxide will be emitted to the atmosphere, because the overseas customers for the coal will simply buy it elsewhere. Their requirements will be willingly met by other coal-exporting countries such as Indonesia, South Africa, Russia or China. If anyone thinks that would be a better result for the environment, they are sadly misinformed.
Global consumption of coal is not limited by supply. Coal is found in more than 100 countries and reserves are sufficient for hundreds of years. Therefore global demand for coal is not determined by supplies from Australia.
The Australian mining industry is a major player in the seaborne coal trade not because customers have nowhere else to go but because we are efficient, reliable suppliers able to compete successfully on price and quality.
In these circumstances it is hard to imagine anything more quixotic than constraining exports of Australian coal on the basis that doing so might save greenhouse gas emissions in the countries that import coal. Those countries will not burn any less coal, just less of ours. In such a process, the investment, jobs, taxes and royalties that now benefit all Australians, especially the people of the Hunter and Illawarra regions and the coalmining areas of Queensland, will go elsewhere.
Ironically, many of those advocating this scenario also oppose developing clean coal technologies, including carbon capture and geological storage. This reveals an ideological opposition to fossil fuels that has little to do with practical solutions to climate change. They advocate a one-dimensional approach to the problem that excludes everything except renewable energy, regardless of cost or practicality.
Climate change is a complex problem that does not lend itself to one-dimensional solutions. It will certainly not be solved by energy exporters such as Australia withdrawing their resources from an energy-hungry world. If all countries with reserves of fossil fuels were to take this approach, the geopolitical consequences could only be imagined.
While such an approach is clearly untenable, reducing greenhouse gas emissions from our use of all fossil fuels is a legitimate objective. Emissions from coal are usually singled out for particular attention, yet the use of oil and related products is responsible for the same proportion of energy-related emissions. Emissions from gas are the fastest growing source.
Fortunately, it may be easier to reduce emissions from coal than from oil because coal is mainly used in large centralised plants that lend themselves to carbon capture and storage. This technology is being developed and Australia is a key player. The Australian coal industry is making a major contribution to this effort, contributing hundreds of millions of dollars in funding and technical and scientific expertise. This support is underwritten by our coal exports. Investment in this and other low emissions technologies is likely to prove the single most effective contribution a small country such as ours makes to protecting the global climate.
Despite concerns about greenhouse gas emissions, world demand for energy is increasing rapidly. The International Energy Agency forecasts that demand will increase by 50 per cent by 2030. It is inevitable that coal will be used to meet a substantial proportion of this demand. The result in terms of greenhouse gas emissions will be determined by the use of clean coal technologies. It will not be determined by whether Australia develops new mines.
The Australian coal industry competes successfully in the global market while having the best environmental and occupational safety standards in the world. As a result coal is easily our most important commodity export. Last year coal generated about $25 billion in export earnings, most of which boosts the national economy, with particular benefits in NSW and Queensland.
Anyone who thinks the environment would benefit by forcing importing nations to look elsewhere for their coal is mistaken. Anyone who believes that withholding energy resources from those who do not have sufficient resources is a good idea is downright dangerous.
Mark O’Neill is executive director of the Australian Coal Association.
“Global consumption of coal is not limited by supply. Coal is found in more than 100 countries and reserves are sufficient for hundreds of years” Yes and we could say the same about illicit drugs. Dependence itself becomes unhealthy.
Dependence will only be cured by a viable alternative.
Nah Paul, that’s like swapping one weed for another. What about a tummy tuck instead?
Jen has asked me to re-enter the IPCC Paradigm for a while but as far as Australian Law is concerned, the IPCC has no standing.
The IPCC accounting rules cannot become binding in Australia unless;
1. Australia signs an international treaty like Kyoto that accepts those rules, AND (not or)
2. Similar legislation is passed by the Federal Parliament that adopts those rules.
But the federal parliament is also bound by Constitutional constraints and the fundamental principles of the westminster system. And foremost among those principles are the principles of justice and equity.
And to put it bluntly, the IPCC accounting rules do not have a snow flakes chance in hell of even getting through a proper drafting process, let alone surviving a high court challenge.
The IPCC rules are unlikely to have been run past a single lawyer, let alone gone through a proper impact assessment process.
So it is entirely appropriate for me to point out that our territorial oceans are fully capable of absorbing current and foreseeable emissions.
More importantly, the law is required to look at questions of jurisdiction, and questions of what condition the carbon was in (ie, stable) when the coal was sold to Japan or China. And there is a huge case law relating to “remoteness of damages” whereby, for example, a person who sells a knife in good faith to another cannot be held liable for the subsequent actions of the buyer.
Our legal system has very strong reservations about what one Law Lord who’s name escapes me put it, “the very spectre of indeterminant liability, for an indeterminant amount, to an indeterminant class”.
And the article from the Coal Industry pointing out that the sale would take place anyway is more than sufficient to close the case. As the courts also have a very real problem with the exercise of power in a way that leaves the outcome uncertain.
Forgetting IPCC rules – the issue becomes could you convince a quorum of emitters to agree to a set of rules.
(1) it’s correct to attribute the emission to the party that burns it – but I think any reasonable person would understand that massive shiploads of coal will be used as energy and burnt not as garden decorating material.
(2) other nations are not going to agree to giving you credits for sinking CO2 into the current background e.g. oceans or native forests. It simply won’t get up. And for all we know it might be their CO2 sunk in our waters and our CO2 sunk in their conifer forests – it’s simply untenable.
(3) all this has been long gone over at Kyoto by smarty pants negotiaters – you’re only going to get a credit on brand new forestry, reducing land clearing or cutting back fossil fuel use. Why becuase it’s fossil fuel use and land clearing that is making the world’s CO2 levels increase. Basic.
Wail as much as you like – the rest of the emitters wouldn’t sign up to anything like a local ocean sink. No agreement means no changes.
So change the legislation and have your coal mine. Not that hard is it?
And when our kids curse in the future they will find a note that says “Well we had a few goes at doing something about CO2 but nobody liked the outcomes (would have cost money or some third world country would have worked around it), so we found it easier to do nothing. Sorry and lotsa luck with the climate stuff. Hope it’s not too bad. Love Dad.”
Motty did you read the judgement thoroughly? I reckon you should read it again and then rip into it.
some corkers from Gavin.
Luke you save the money to give yr kids the best education so then they can magic up a solution.
An Editorial in yesterday, Australian, ‘Pie-In-The-Sky On Coal’, said it all in publicising Justice Nicola Pain’s extreme ‘Green’ credentials, and background.
Well Luke, the day a high court judge looks me in the eyes and tells me it is perfectly alright, because of IPCC rules, to levy a carbon tax of $30/tonne today, on wood that will not even begin to emit it’s carbon until the year 2087, is the day I have a moral right to make truck bombs.
IPCC accounting rules make no effort to actually synchronise the tax impost to the emission. And it is a fundamental plank of the delivery of equitable outcomes to discount a current payment for a future cost.
At the standard discount rate of 7%, I should only pay 19 cents/tonne today for an emmission worth $30/tonne that will take place in 80 years time.
It is also worth noting that if the climate models are recording emissions as taking place today, when they will actually take place in 80 years time, then they are recording non-existent emissions.
And if they are measuring non-existent emissions then it is perfectly understandable that their model will show A NON-EXISTENT GLOBAL WARMING!
Anyway, I am off for a few days to cut down some trees.
Ian that’s ome crazy thinking on what climate models do.
On timber – you might get a much more sophisticated life cycle assessment. Or if you’re too ornery to deal with and going to truck-bomb they’ll just wipe the biological sinks from consideration. You can then plant as many trees as you like and they won’t count.
Centennial Coal did submit an assessment of the impact of the burning of the coal they would sell to power stations as part of their response to public submissions on the Enviornmental Assessment for the project. The court judgement acknowledged the DG had all the information in this regards that he needed and there was no need for further public exhibition. The DG’s failure was to inadequately consider the precautionary principal and intergenerational equity. Presumably the DG can now toddle off and do that and make a new decision. Presumable he may decide that intergenerational equity means that sons and grandsons of Hunter Valley coal miners can continue to have the opportunity to be coal miners in the future.
Centennial Coal has issued a press release claiming that the Land and Environment Court decision was positive. Maybe you guys know what they are talking about.
http://www.centennialcoal.com.au/ssl/axs/1/assets/page/488/assets/NSW%20land%20and%20environment%20-%2028%20Nov%202006.pdf
Centennial Coal has issued a press release claiming that the Land and Environment Court decision was positive. Maybe you guys know what they are talking about.
http://www.centennialcoal.com.au/ssl/axs/1/assets/page/488/assets/NSW%20land%20and%20environment%20-%2028%20Nov%202006.pdf
Inspired by the banter here I did my Counterpoint column at ABC Radio National on the topic: http://www.abc.net.au/rn/counterpoint/stories/2006/1803531.htm#transcript
Thanks Russell, Pinxi, Fatwombat and everyone else.