The Law and Ethics of Environmental Protection in Australia PDF

 The Law and Ethics of Environmental Protection in Ricardo Macia Lalinde/The Guardian first mammal extinct from climate change...

 The Law and Ethics of Environmental Protection in Ricardo Macia Lalinde/The Guardian first mammal extinct from climate change Australia Audette Smith LLB, GDLP, BA, GDA  Today… ▪ International environmental law ▪ Australian environmental law ▪ Justice as a tool to strengthen environmental protection ▪ Recent cases in Australia ▪ Ethical considerations ▪ Advocacy   International law…United Nations* ▪ United Nations Environment Programme (UNEP) ▪ Global and regional ▪ Advocate for global environment ▪ Supports governments with coherent implementation of their own sustainable development and goals ▪ Seeks to promote the development and implementation of international environmental law ▪ Environmental justice *Acknowledging that the United Nations Framework Convention on Climate Change is the primary international, intergovernmental forum for negotiating the global response to climate change.   2030 Agenda for Sustainable Development (2015) Goal 13. Take urgent action to combat climate change and its impacts* 13.1 Strengthen resilience and adaptive capacity to climate-related hazards and natural disasters in all countries 13.2 Integrate climate change measures into national policies, strategies and planning 13.3 Improve education, awareness-raising and human and institutional capacity on climate change mitigation, adaptation, impact reduction and early warning 13.a Implement the commitment undertaken by developed-country parties to the United Nations Framework Convention on Climate Change to a goal of mobilizing jointly $100 billion annually by 2020 from all sources to address the needs of developing countries in the context of meaningful mitigation actions and transparency on implementation and fully operationalize the Green Climate Fund through its capitalization as soon as possible 13.b Promote mechanisms for raising capacity for effective climate change-related planning and management in least developed countries and small island developing States, including focusing on women, youth and local and marginalized communities   This Photo by Unknown Author is licensed under CC BY-NC ▪ “Climate policies are far behind what is needed to keep global temperatures below the 1.5℃ threshold, with extreme weather events and searing heat already baking our planet. People are increasingly turning to courts to combat the climate crisis, holding governments and the private sector accountable and making litigation a key mechanism for securing climate action and promoting climate justice” Inger Anderson, Executive Director of UN Environment Programme 27 July 2023  Australian law ▪ Constitution does not explicitly provide Commonwealth Parliament with power to make laws for the environment but it can do so under its external affairs power (obligations under international agreements) and corporations power ▪ A framework of laws and regulations and agreements between the commonwealth and the states ▪ Environmental Protection & Biodiversity Conservation (EPBC) Act 1999 (Cth) ▪ Covers nine matters of ‘national environmental significance’  What does the EPBC Act cover? ▪ World heritage properties ▪ National heritage places ▪ wetlands of international importance ▪ listed threatened species and ecological communities ▪ Listed migratory species ▪ Commonwealth marine areas ▪ Great Barrier Reef ▪ Nuclear actions (e.g. uranium mines) ▪ Water resources (i.e. the water trigger - coal and coal seam gas mining)  What does the EPBC NOT cover? This Photo by Unknown Author is licensed under CC BY-SA-NC  Climate Change Act 2022 (Cth) ▪ Sets out Australia’s greenhouse gas emissions reduction targets (43% by 2030 and zero by 2050) under the Paris Agreement to provide for annual climate change statements, to confer advisory functions on the Climate Change Authority ▪ Acknowledges the urgent threat of climate change (s3(aa)) ▪ Limiting temperature increases to 1.5℃ above pre-industrial levels (s3(a)(ii)   Why is this a problem? This Photo by Unknown Author is licensed under CC BY ▪ 21 fossil fuel projects are currently in the EFBC approval pipeline ▪ Biggest threat to our environment (and planet) ▪ Yet our national environmental law doesn’t directly address climate change ▪ Because the law does NOT require the Environment Minister to consider climate change or its impacts it ignores damage any new coal, oil or gas project causes ▪ Argument that government continues to use is that projects meet the environmental approvals (of course we know who can change that law at any time!) ▪ Clearly it does not stop the government from approving new fossil fuel developments  Human rights… ▪ In October 2021, the United Nations Human Rights Council took an important step by recognizing the human right to a clean, healthy, and sustainable environment (environmental Justice Strategy) ▪ Protection for the most vulnerable and those at risk   Global Climate Litigation Status Report: 2023 Status Review ▪ Climate litigation has more than doubled in five years (from 884 in 2017 to 2180 in 2022) ▪ Now a key tool in delivering climate justice ▪ Most cases in the USA, 17% in developing countries including small island states ▪ 34 cases brought by and on behalf of children and youth under 25 years old (including by a 7 year old girl in Pakistan and a 9 year old girl in India) ▪ In Switzerland, plaintiffs making a case on the disproportionate impact of climate change on senior women ▪ Cases challenge governments on decisions that are inconsistent with the goals of the Paris agreement or net zero commitments  Key climate litigation cases and matters covered in the report include:  The UN Human Rights Committee concluding for the first time that a country has violated international human rights law through climate policy and climate inaction, finding Australia’s government is in violation of its human rights obligations to Torres Strait Islanders (our obligation as a signatory to the Intl Covenant on Civil & Political Rights); Brazil’s Supreme Court holding that the Paris Agreement is a human rights treaty, which enjoys “supranational” status; A Dutch court ordering oil and gas company Shell to comply with the Paris Agreement and reduce its carbon dioxide emissions by 45 per cent from 2019 levels by 2030. (This was the first time a court found a private company to have a duty under the Paris Agreement); Germany’s court striking down parts of the Federal Climate Protection Act as incompatible with the rights to life and health; A court in Paris holding that France’s climate inaction and failure to meet its carbon budget goals have caused climate-related ecological damages; A United Kingdom court finding that the government had failed to comply with its legal duties under its Climate Change Act 2008 when approving its net-zero strategy; Efforts to obtain advisory opinions on climate change from the International Court of Justice and the International Tribunal for the Law of the Sea are being initiated and driven by Small Island Developing States.   Report demonstrates … This Photo by Unknown Author is licensed under CC BY-SA-NC ▪ How courts are finding strong human rights linkages to climate change ▪ Leads to greater protections for vulnerable groups in society ▪ Leads to increased accountability, transparency and justice, compelling governments and corporations to pursue more ambitious climate change and adaptation goals ▪ Future cases – climate migration, cases brought by Indigenous peoples, local communities, extreme weather events, water shortages   Minister for the Environment v Sharma FCAFC 35 This Photo by Unknown Author is licensed under CC BY-SA-NC ▪ Negligence claim on behalf of eight Australian children against a NSW coal mine extension pending approval under the EPBC Act. ▪ Successfully sought a declaration that the Minister owed Australian children a duty to take reasonable care to protect them from the harms of climate change. ▪ Initially succeeded in establishing Ministerial duty but successfully appealed by the Minister because of limitations under the Act   Minister for the Environment v Sharma FCAFC 35 This Photo by Unknown Author is licensed under CC BY-NC-ND “It is difficult to characterise in a single phrase the devastation that the plausible evidence presented in this proceeding forecasts for the Children. As Australian adults know their country, Australia will be lost and the World as we know it gone as well. The physical environment will be harsher, far more extreme and devastatingly brutal when angry. As for the human experience – quality of life, opportunities to partake in nature’s treasures, the capacity to grow and prosper – all will be greatly diminished. Lives will be cut short. Trauma will be far more common and good health harder to hold and maintain. None of this will be the fault of nature itself. It will largely be inflicted by the inaction of this generation of adults, in what might fairly be described as the greatest inter- generational injustice ever inflicted by one generation of humans upon the next.”   Ethical considerations… ▪ A deontological approach Environmental degradation caused by climate change is wrong because it has a negative impact on human health and ignoring this will impose costs and burden on future generations. (Arguably we have already done this!) ▪ A utilitarian approach Maximising human happiness – the maintenance of our environment as a life force Consider these theories prioritise dominion of humans (i.e. we control the environment for our own needs) and not nature itself, but our health depends on other living beings (bees, plants, etc) ▪ The doctrine of ecological justice – all organisms have a claim in justice to a share of environmental resources (not just humans) This Photo by Unknown Author is licensed under CC BY-SA   What are your obligations? AMA Code of Ethics (revised 2016) ▪ 4.1.1. Participate in activities that contribute to the health of the community and the wider public health. These can include matters relation to health education, environmental protections, public health and legislation impacting on health ▪ 4.3.2. Accept a share of the profession’s responsibility to society in matters relating to the health and safety of the public, health education and literacy and legislation affecting the health of the community   Consider… This Photo by Unknown Author is licensed under CC BY-NC-ND ▪ Changing climate increasingly impacts human health ▪ Do you have the power to act? ▪ Government sets policy, but government policy is informed by experts (YOU!) ▪ As a profession, collective responsibility can lobby government and industries on behalf of patients who are affected ▪ Signalling is one way individual doctors can do things (vegan, renewable energy use etc) ▪ First global assessment of the environmental footprint of health care ▪ Healthcare responsible for 4.4% of all greenhouse gas emissions “For too long, the people in power have gotten away with basically not doing anything to stop climate and ecological breakdown.” Greta Thunberg Austrian World Summit 2019  Continuous estimations are  done by the Animals That Will Be Extinct by the ICUN Red List Following Years and other wildlife Year Animal organizations that highlight the Animals That Will Be Extinct By 2025 Asian Elephants years in which certain animals Animals That Will Be Extinct By 2025 Mountain Gorillas may become extinct if Animals That Will Be Extinct By 2030 Orangutans preservation methods fail. Animals That Will Be Extinct By 2030 Vaquitas (porpoise) The following table indicates Animals That Will Be Extinct By 2030 Tigers the expected year(s) in which Animals That Will Be Extinct By 2036 Rhinos extinction events are likely Animals That Will Be Extinct By 2080 Leatherback Sea Turtles to occur:   Hope for the future…Jane Goodall ▪ Amazing human intellect (WWW, space travel, life-saving surgery etc, cows eating kelp!) ▪ We can work together (speed of the COVID vaccine, getting rid of plastic shopping bags, hole in the ozone layer) ▪ Individuals can make a difference (food choices, travel, plastic etc) ▪ Resilience of nature – Chernobyl –regenerated without people! ▪ Determination and energy of young people around the world (Greta, others taking action in the courts) “Concentrate on doing the things you can do and do them well. It will make a difference”. JG References  AMA. (2004). Code of Ethics (revised 2016). Capon, T. (11 April 2023). Re-thinking Medical Ethics as Climate Change Accelerates. Insight. https://insightplus.mja.com.au/2023/12/re-thinking-medical-ethics-as-climate-change-accelerates/ Climate Change Act 2022 (Cth) Climate Council. (2nd August 2023). Eveything you need to know about fixing Australia’s national environment law. https://www.climatecouncil.org.au/resources/epbc-fixing-australias-national-environment- law/#:~:text=The%20Environmental%20Protection%20%26%20Biodiversity%20Conservation,endangered%20species%20from%2 0further%20harm. Environmental Protection & Biodiversity Conservation (EPBC) Act 1999 (Cth) Fisher, D.E. (2014). Australian Environmental Law: Norms, Principles and Rules (3rd ed.)Thomson Reuters Lawbook Co. Flannery, T. (16 September 2023). Tim Flannery’s message to all: rise up and become a climate leader – be the change we need so desperately. The Conversation https://theconversation.com/tim-flannerys-message-to-all-rise-up-and-become-a-climate-leader-be-the-change-we-need-so- desperately-213066 Goodall, J and Abrams, D. (2021). The Book of Hope: a survival guide for an endangered planet. Penguin Viking. Kilgore, G. (28 October 2022). 87 Animals that will be extinct by 2050. 8 Billion Trees. https://8billiontrees.com/animals/animals-that-will-be-extinct-by-2050/ Minister for the Environment v Sharma FCAFC 35 Power, S. (2019). Environmental law review. Parliament of Australia. https://www.aph.gov.au/About_Parliament/Parliamentary_Departments/Parliamentary_Library/pubs/BriefingBook46p/Environ mentalLaw#:~:text=Commonwealth's%20environmental%20role,range%20of%20indirect%20constitutional%20powers. References  Pickup, F.. (23 June 2023). Five Steps to Environmental Justice. UNDP. https://www.undp.org/blog/five-steps-environmental-justice Reynolds, C. (2011). Public and Environmental Health Law. The Federation Press. Rogers, W. (13 October 2022). Climate change and moral responsibility in medicine. Medical Republic. https://www.medicalrepublic.com.au/climate-change-and-moral-responsibility-in-medicine/35465 Seo, H, (1 June 2022). Extinction obituary: how the Bramble Cay melomys became the first mammal lost to the climate crisis. The Guardian. https://www.theguardian.com/environment/2022/jun/01/extinction-obituary-bramble-cay-melomys-climate-change-aoe Thorne, L and Slezak, M. (30 August 2023). Australian government acknowledges risk of climate change to bonds after court case. ABC News. https://www.abc.net.au/news/2023-08-30/australian-government-climate-change-risks-to-bonds-court-case/102791964 United Nations. (2015). Transforming our world: the 2030 Agenda for Sustainable Development. Department of Economic and Social Affairs. https://sdgs.un.org/2030agenda UNDP. (12 June 2014). Environmental justice – comparative experiences in legal empowerment. https://www.undp.org/publications/environmental-justice-comparative-experiences-legal-empowerment UNEP. (27 July 2023). Climate litigation more than doubles in five years, now a key tool in delivering climate justice. https://www.unep.org/news-and-stories/press-release/climate-litigation-more-doubles-five-years-now-key-tool-delivering