Court papers were served on Delta Energy Macquarie Generation and Minister for Planning Tony Kelly in relationto cases lodged in the NSW Land and Environment Court challenging the concept approval of the Mount Piper and Bayswater B power station expansions.

Ned Haughton, represented by the EDO, has brought the case. Haughton is an activist working with Rising Tide Newcastle. Haugton will argue that the Minister's approvals are invalid through a failure to consider ecologically sustainable development in the decision.

26 March 2010

Justice Pain of the Land and Environment Court has allowed Gray & Hodgson v Macquarie Generation to proceed to trial on the issue of whether Macquarie Generation is allowed to emit unlimited levels of carbon dioxide into the atmosphere.

Justice Pain found that the applicants argument that Macquarie Generation is not authorised to emit any carbon dioxide at all is "unlikely to succeed" and dismissed that part of their case.

The case has been brought by the Environmental Defenders Officer (EDO), acting on behalf of Rising Tide members Mr Peter Gray and Ms Naomi Hodgson. Gray and Hodgson argue that as Macquarie Generation is not expressly authorised to emit carbon dioxide into the atmosphere under its environment protection licence (a licence which authorises and regulates pollution), its emission of carbon dioxide is unlawful.

In its strike out application, Macquarie Generation argued that even if its environment protection licence does not expressly authorise the emission of carbon dioxide, its authority to emit carbon dioxide should be implied on the basis that the production of carbon dioxide is a necessary part of generating electricity.

Background on the case can be found here.

A full copy of the judgment can be found here.

ACF Media Release: Big polluters continue bad practices ahead of CPRS vote 

18 November 2009

New research shows some of Australia's biggest corporate polluters continue to publicly exaggerate the impact of the Government's proposed emissions trading scheme on their businesses, while giving a very different picture in their formal disclosures to the market.

The research note by the Australian Conservation Foundation and the Australian Climate Justice Program updates the two groups’ submission to the Australian Competition and Consumer Commission in June asking the ACCC to investigate whether six companies had engaged in misleading or deceptive conduct in their public statements on climate policy. The ACCC declined to pursue the complaint.

“Our research shows some of the corporations we referred to the ACCC in June are continuing with their brazen campaign to secure more free emissions trading handouts at the expense of Australian taxpayers,” said ACF climate change campaigner Phil Freeman.

“Rio Tinto, Woodside and Caltex have continued to make detailed claims that the Carbon Pollution Reduction Scheme would damage their business or operations, but those claims are not reflected in formal announcements to the stock exchange.

“Two of the companies we complained about in June, Boral and BlueScope Steel, appear to have improved the quality of their disclosures, giving relatively consistent statements about the CPRS to the public and the market, while one company, Xstrata, does not appear to have made further public statements about the impact of emissions trading on its business.

“Unfortunately a regulatory vacuum has left an open door for some of Australia’s biggest corporate polluters to continue their rent-seeking.

“It is important our politicians are not taken in by the massive corporate bluff a number of the big polluters continue to engage in.

“The Carbon Pollution Reduction Scheme won’t be effective if it is billions of dollars in the red because of excessive handouts to big polluters.”

The US Court of Appeals for the Fifth Circuit has overturned a district court dismissal in Comer v Murphy Oil, allowing this public nuisance litigation to go ahead. In the case victims of Hurricane Katrina are seeking compensation from CO2 emitters for loss of private property and use of public property.

The case alleged nuisance, negligence, trespass, unjust enrichment, civil conspiracy, and fraudulent misrepresentation. The Court of Appeals has allowed the first three claims to progress but not the last three.

Read the decision here.

Media:

A victory for Katrina victims; a defeat for Alaskan villagers

Suing Energy Companies for Hurricane Katrina

Hurricane Katrina Victims Given Right to Sue

Kivalina v ExxonMobil has been dismissed on the basis that the case presents a political question and the village lacks standing. This is the case that was filed in 2008 on behalf of an Inupiat Eskimo village in Alaska that must be relocated due to global warming. They were seeking millions of dollars in damages from oil, coal and utility defendants due to their contributions to global warming.

Media:

Kivalina suffers setback in global-warming lawsuit

Judge tosses Kivalana global warming suit

A House of Representatives climate change report has found that a lack of appropriate laws regulating Australian coastal development in the climate change era has left councils legally exposed whether they approve or reject development applications.

Media:

Councils at risk over coastal projects 

While the Bangkok negotiations were taking place during early October, a team of Asian environmental lawyers staged a mock trial where they charged 8 of the world's wealthiest countries with the crime of causing climate change.

The summons, petitions and verdict may be read here.

Media:

If climate change is a crime, who would be the criminal?

The Gundjeihmi Aboriginal Corporation, representing the Mirarr Traditional Owners of northeastern Kakadu, have joined the environmental groups and have lodged a submission to the United Nations seeking to ensure that Nations give effect to their obligations under the World Heritage Convention when negotiating emissions reductions in Copenhagen in December.

The United Nations has identified over 120 World Heritage sites threatened by climate change including Kakadu National Park, the Great Barrier Reef and the Himalayan Glaciers.  

“Each State Party to the World Heritage Convention has a duty to ensure the protection, conservation and transmission of World Heritage to future generations and the continued release of greenhouse gas emissions is causing serious damage to these globally important places,” said spokesperson Stephen Leonard. “Even a small temperature increase can have a big impact on these special and sensitive natural ecosystems and cultural places”. 

The groups involved in the initiative include Pro Public Nepal, Greenpeace International, the Wilderness Society, Friends of the Earth and the Australian Climate Justice Program. Many of these have had a long standing and effective involvement in drawing the threat of climate change on World Heritage to the attention of the United Nations since 2004.  

22 September 2009 - The US Court of Appeals has reinstated Connecticut/Open Space Institute v American Electric Power. This public nuisance lawsuit was filed against the 5 largest emitters of greenhouse gas emissions in the US in 2004 - seeking a court order to reduce greenhouse gas emissions under the common law doctrine of public nuisance.

The plaintiffs were 8 states, the City of New York and 3 land trusts. A district court judge dismissed the case as a political question in 2005. On 21 September 2009, the court ruled in favour of the plaintiffs not only on the political question but on every other issue that they briefed and argued.

The court ruled:

"We hold that the district court erred in dismissing the complaints on political question grounds; that all of Plaintiffs have standing; that the federal common law of nuisance governs their claims; that Plaintiffs have stated claims under the federal common law of nuisance; that their claims are not displaced; and that TVA's alternate grounds for dismissal are without merit. We therefore vacate the judgment of the district court and remand for further proceedings."

Read the decision

Media:

CNN article

Capital article

Star Tribune article

Civil enforcement proceedings have been commenced against Macquarie Generation in the Land and Environment Court. The proceedings have been brought by Peter Gray and Naomi Hodgson, represented by the Environmental Defender's Office.

Mr Gray and Ms Hodgson seek a declaration that Macquarie Generation has been wilfully or negligently disposing of waste at their Bayswater Power Station by emitting carbon dioxide into the atmosphere in a manner that has harmed or is likely to harm the environment in contravention of section 115(1) of the Protection of the Environment Operations Act 1997. Mr Gray and Ms Hodgson also seek an injunction requiring Macquarie Generation to immediately cease disposing of waste through the emission of carbon dioxide into the atmosphere.

The Respondent has filed a Notice of Motion for summary dismissal of the proceedings. A date for the hearing of the Respondent's Motion has been set for 2 December 2009.

Environmental Defender's Office information on the case

The Sydney Morning Herald article

Lateline transcript

The Australian Climate Justice Program, housed within CANA, recently saw its Executive Officer, Keely Boom, win a global competition on climate change and human rights law. The competition was run by Oxfam International, Advocates for International Development and the international Climate Justice Programme.

Entries were required to show that rich countries' greenhouse gas emissions are violating the human rights of people in developing countries. Entrants had to write a complaint based upon a scenario involving a fictional country called Algoria, a 'small, mid-latitude, developing country' which will be strongly affected by climate change.

Keely's entry took the form of an inter-country complaint against Australia under the International Covenant on Civil and Political Rights. The complaint stated that 'Australia's historical and continuing contribution to anthropogenic climate change has had, and continues to have, an impact upon the human rights and fundamental freedoms recognised in the present covenant as held by the citizens of the State of Algoria. This process of transboundary environmental harm demonstrates that the greenhouse gas emissions of Australia constitute a means through which Australia is exercising power or a form of effective control over individuals in Algoria.'

The judges of the competition included an impressive line-up of internationally renowned lawyers - Professor in International Law Christine Chinkin, Secretary-General of the Pacific Islands Forum Judge Tuiloma Neroni Slade, Oxfam legal adviser Joss Saunders and Deputy High Court Judge Stephen Hockman QC.

Keely was awared her prize while in London for a meeting with environmental and human rights lawyers from around the world exploring exactly the kind of claims that she wrote about in her winning entry.

Read more about the competition here.

Download the competition question here.

Download Keely Boom's winning entry here.

Media:

UK Law Gazette

Illawarra Mercury

University of Wollongong

15 June 2009

The Australian Conservation Foundation and the Australian Climate Justice Program have asked the Australian Competition and Consumer Commission (ACCC) to investigate whether six companies have engaged in misleading or deceptive conduct when making public statements on climate change policy.

The complaint sets out 14 instances in which six corporations have made statements about the impacts of the Government's proposed Carbon Pollution Reduction Scheme (CPRS).

The complaint alleges these statements are exaggerated and contradictory when compared with the companies' disclosures to shareholders and independent analysis.

The six companies named in the complaint are Rio Tinto, Woodside, Xstrata, Boral, Caltex and BlueScope Steel.

"We believe there is a prima facie case for investigating possible breaches of the Trade Practices Act," said ACF executive director Don Henry.

"Some of Australia's biggest corporate poluters appear to be presenting the worst case to government and the public, in an effort to gain excessive free permits, while presenting the best case to investors, in order to keep their share prices up.

"We are asking the ACCC to investigate whether our politicans, policymakers and the public have been deceived by the likes of Rio Tinto, Woodside and Xstrata.

Recent analysis by RiskMetrics shows corporate welfare has blown out to $16.4 billion under the most recent version of the emissions trading legislation.

"It is reprehensible for corporations to be saying one thing to politicans and the public and something completely different to their shareholders," Mr Henry said.

"Big polluters shouldn't get a free ride under the emissions trading scheme just because they've got the loudest voices.

"ACF urges business to be part of the solution to climate change, not just part of the problem."

ACJP Corporate Climate Risk Report - 200 pages

ACF and ACJP Complaint to  ACCC

30 January 2009 

Ultimo, NSW, AUS/Oakland, CA, USA - The Australian Climate Justice Program and the US-based Earthjustice have sent a petition to UNESCO's World Heritage Committee requesting action at their next meeting to protect World Heritage sites from the global warming impacts of black carbon air pollution, which accelerates the impacts of global warming in high latitude and high altitude regions. Such glacier loss and the resulting sea level rise threaten many other World Heritage sites globally, especially those dependent on meltwater from glaciers, or those with coral reefs or near coastal lowlands.

Recent scientific studies have found black carbon, a component of soot, or fine particulate air pollution that comes from the burning of fossil fuels, biofuels, and biomass, is a key climate disruptor. Black carbon has a strong warming effect in the atmosphere and when it lands on snow, ice caps and glaciers. By reducing the reflectivity of these surfaces, black carbon causes widespread and faster melting, causing sea level rise and other climate changes.

Because black carbon remains in the atmosphere for only a handful of days, compared to other greenhouse gases which may remain in the atmosphere for over 100 years, reducing black carbon emissions may be among the most effective near-term strategies for slowing the amplified climate warming. Yet the United Nations Framework Convention on Climate Change does not address global warming caused by black carbon. The petition urges the World Heritage Committee to step into the breach to preserve World Heritage until the long-term effects of the UNFCCC process can be realised. The petition requests the Committee to place climate-threatened sites on the "List of World Heritage in Danger," to advance research and mitigation strategies to reduce black carbon, and to alert the UNFCCC and others about this threat to World Heritage sites.

"With immediate action, the World Heritage Committee can assist States Parties to reduce emissions of this pollutant and slow the rate of glacial melt and resulting sea level rise that threaten World Heritage sites such as the Great Barrier Reef and Kakadu National Park," said Keely Boom of the Australian Climate Justice Program.

"Because black carbon has an atmospheric lifetime of only days or weeks, reducing emissions has an immediate effect that can slow global warming in the near term," said Jessica Lawrene of Earthjustice. "As our petition outlines, such immediate actoin may be necessary to protect many World Heritage sites such as Waterton Glacier International Peace Park on the U.S./Canada border, the Ilulissat Icefjord in Greenland, and Sagarmatha National Park in Nepal, where Mount Everest is located."

Black Carbon: A Powerful Global Warming Pollutant

Black carbon is released into the atmosphere during the inefficient burning of fossil fuels, biofuels, and biomass. It is often transported long distances by air currents. Because the dark-coloured particles absorb sunlight, black carbon warms the top of the atmophere. When deposited on ice and snow, it reduces the albedo, or reflectivity, of these surfaces, and increases the rate of melting. As these surfaces melt, the darker water or land exposed below absorbs more incoming sunlight, causing additional warming. Black carbon is considered to be the second most powerful contributor to global warming after carbon dioxide.

Unlike CO2 and other greenhouse gases that contribute to global warming for decades or centuries once in the atmosphere, black carbon is a short-lived forcer, remaining in the atmosphere for days to weeks. Because of thise, reducing black carbon emissions can be an effective rapid response to slow warming in the near term, protecting arctic and montane glaciers as well as snow pack and permafrost and buying critical time to realise reduction in long-lived greenhouse gases like CO2. Black carbon emissions can be sharply reduced with existing technologies, for example by improving the efficiency of fuel combustion; switching to less polluting fuels in ships, locomotives and aircraft; installing particle traps on diesel vehicles, generators, and smokestacks of power plants and industrial facilities; controlling agricultural residue burning; and providing alternatives such as charcoal briquettes and more efficient stoves to reduce the use of raw coal, wood and dung fuels for cooking and residential heating.

Read the petition here.

12 December 2008: A group of human rights lawyers and academics have urged the Australian Government to adopt a human rights approach to climate change by announcing a target of deeep cuts in greenhouse gas emissions of 40% or more by 2020 so as to provide global human rights leadership in mitigation action on climate change.

The intervention of the Australian human rights lawyers and academics comes on the eve of the Government's target announcement.

The group, which includes twelve barristers of whom six are Senior Counsels, have sent an open letter to Prime Minister Kevin Rudd today, warning him that the "Australian Government needs to avoid harmful emissions nationally" in order to fulfil existing human rights obligations."

Keely Boom of the Australian Climate Justice Program stated: "Australia is a net emitter with the capacity to reduce the risk that increased concentrations of greenhouse gases poses to human rights."

"While Australia has discretion in setting itse reduction targets, given the state of science and the human rights impacts that are highly certain to occur, its is arguable that such discretion is limited by the need for all developed countries to reduce absolute emissions as quickly as possible," Ms Boom explained.

"This groundbreaking activism by the legal profession is a call for the Australian Government to show human rights leadership on climate change"." Ms Boom stated.

"A 40% cut in absolute terms in consistent with what the science is telling us is necessary to avert dangerous impacts on the enjoyment of fundamental rights and freedoms, although some argue for even high cuts of 80-90% by 2020."

The open letter noted United Nations work on the human rights situation of Pacific Islanders whose states and territories are threatened with extinction due to the impacts of climate change.

The lawyers who signed the letter are among Australia's leading human rights barristers, including Senior Counsels Fiona McLeod, Brian Walters, Stephen Keim, Jane Needham, Norman O'Bryan and Douglas Murphy. They are joined by high profile barristers Kate Eastman, Matthew Baird, Adam Bandt, Chris McGrath, Aaron Fraatz and Dr Peter Cashman. Dr Cashman is also an Associate Professor at the Faculty of Law, University of Sydney.

Other signatories included leading academics, such as Professor David Kinley, who is Chair in Human Rights Law at the University of Sydney; Professor Barry W. Brook, who is Director of the Research Institute for Climate Change and Sustainability at The University of Adelaide; Dr Tim Stephens, who is a Senior Lecturer at the Sydney Centre for International Law at the Unviersity of Sydney; Dr Mark Diesendorf, who is Deputy Director of the Institute of Environmental Studies, University of New South Wales; Ben Boer, former Professor in Environmental Law at the Faculty of Law, University of Sydney and Dr Jane McAdam, Senior Lecturer and Director of International Law Programs at Faculty of Law, University of New South Wales.

For further comment:

Keely Boom (Legal Officer, Australian Climate Justice Program)

Mob: 0418884804

TORONTO – After months of deliberation, Canada’s Federal Court released a decision late yesterday regarding the Government of Canada’s alleged violation of the Kyoto Protocol Implementation Act (KPIA), a federal law that required Canada to take specific action to meet binding international commitments to fight climate change.

The lawsuit was launched on behalf of Friends of the Earth Canada in June by pro bono lawyers from Paliare Roland Barristers and Ecojustice (formerly Sierra Legal Defence Fund). It sought a declaration from the court that the government had failed to meet the legal requirements of the KPIA by missing critical deadlines and failing to uphold its legal duty to publish regulations. The Court ruled that the legislation itself is not justiciable – meaning it is not an issue the Courts can resolve.

“It is distressing that such crucial legislation would be beyond the realm of the courts,” said Ecojustice lawyer Hugh Wilkins. “If we can’t turn to the courts to ensure that the laws of the land are upheld, I fear our government will continue to drift towards unaccountability on climate change and other issues Canadians care deeply about.”

The Federal Court’s decision, if left unchallenged, allows Canada’s woeful inaction responding to the climate change crisis to continue.

“This decision is shocking and a stake in the heart of democracy since it appears we cannot enforce Canadian domestic law,” said Friends of the Earth Canada Chief Executive Officer Beatrice Olivastri. “Friends of the Earth had counted on the KPIA law to compel this government to act honourably and take appropriate climate protection measures.”

“The Court has sent a message that the government can pick and choose which laws to obey,” said eminent Canadian lawyer Chris Paliare. “We will undoubtedly be considering further legal action to ensure that the Government is held accountable.”

The Kyoto Protocol is an international agreement that has been ratified by 180 countries to date and sets targets for reducing greenhouse gas emissions. Of the 38 industrialized nations with binding international targets, Canada is the only country that has indicated that it does not intend to meet its international obligations.

18 September 2008: In proceedings taken by the Australian Competition and Consumer Commission, the Federal Court has declared that GM Holden Ltd made false and misleading claims in its "Grrrrrreen" campaign which promoted the environmentally friendly nature of its Saab range of vehciles.

Between 27 July and 1 September 2007, GM Holden, trading as Saab Australia, published newspaper and magazine advertisements across Australia promoting the Saab range of motor vehicles. The advertisements, under the headline statement "Grrrrrreen", contained the words and phrases, "Grrrrrreen", "Every Saab is green. With carbon emissions neutral across the entire Saab range" and "Shift to Neutral".

In the advertisements GM Holden represented that it had taken measures so that the carbon dioxide emissions from any Saab motor vehicle would be neutral over the life of that motor vehicle.

In the same advertisements GM Holden represented that in the first year following the purchase of a Saab motor vehicle, GM Holden would plant, on behalf of the purchaser, 17 native trees which would offset the carbon dioxide emissions for the life of that motor vehicle.

In fact, the carbon dioxide emissions from any Saab motor vehicle would not be neutral over the life of that motor vehicle, and the planting of 17 native trees would only provide a carbon dioxide emission offset for a single year's operation of the motor vehicle.

By consent, the Federal Court declared today that GM Holden contravened sections 52 and 53(c) of the Trade Practices Act 1974 by engaging in misleading conduct. The court also ordered GM Holden to pay the ACCC's costs.

The ACCC has accepted court enforceable undertakings from GM Holden. GM Holden has undertaken to refrain from republishing the advertisements; retrain all its Saab marketing staff in relation to misleading and deceptive conduct int he context of 'green' marketing claims to make them aware of their responsibilities under the Act; and have the training reviewed by an independent third party and have the reviewer provide a report to the ACCC about the training.

The original complaint was made by the NSW Greens to the ACCC. The ACJP provided support for this complaint.

UK - Six climate change activists have been cleared of causing criminal damage at a coal-fired power station. The jury of nine men and three women at Maidstone crown court cleared the six by a majority verdict. Five of the Greenpeace protesters had scaled a 200-metre chimney at Kingsnorth power station, Hoo, Kent in October 2007.

The activists admitted to trying to shut down the station by occupying the smokestack and painting the word "Gordon" down the chimney. However they pleaded "not guilty" and relied in court on the defence on "lawful excuse" - claiming they shut down the power station in order to defend property of a greater value from the global impact of climate change.

The "not guilty" verdict means the jury believed that shutting down the coal plant was justified in the context of damage caused around the world by CO2 emissions from Kingsnorth.

The court had heard from Professor James Hansen, one of the world's leading climate scientists, that the 20,000 tonnes of carbon dioxide emitted daily by Kingsnorth could be responsible for the extinction of up to 400 species. Hansen told the court that humanity was in "grave peril".

The court also heard an Inuit leader from Greenland say climate change was already seriously affecting life. It was told that some of the property in immediate need of protection included parts of Kent at risk from rising sea levels, the Pacific island nation of Tuvalu and areas of Greenland. The defendants also cited the Arctic ice sheet, China's Yellow River region, the Larsen B ice shelf in Antarctica, coastal areas of Bangladesh and the city of New Orleans.

The jury was told that Kingsnorth emitted the same amount of carbon dioxide as the 30 least polluting countries in the world combined - and that there were advanced plans to build a new coal-fired power station next to the existing site on the Hoo peninsula.

The Climate Justice Programme has joined with Oxfam International and Advocates for International Development to launch today a competition to emphasise States' obligations, and to stimulate innovation and progress in international climate change law.

Lawyers, academics and law students worldwide are invited to put forward the strongest legal case possible to demonstrate that rich countries' greenhouse-gas emissions are violating the human rights of people in developing countries.

More information, and the competition question, are available from here:

http://www.climatelaw.org/competition

Arctic Marine Mammal Threatened by Global Warming and Oil Development 

SAN FRANCISCO— Today the Center for Biological Diversity formally notified Secretary of the Interior Dirk Kempthorne of its intent to file suit against him for refusing to process an Endangered Species Act listing petition for the Pacific walrus, imperiled by global warming and increasing oil development in its habitat in the Bering and Chukchi Seas off Alaska.

“The Arctic is in crisis from global warming. Arctic sea ice is disappearing at a stunning rate that vastly exceeds the predictions of the best climate models,” said Shaye Wolf, a biologist with the Center for Biological Diversity and lead author of the petition. “The Pacific walrus is an early victim of our failure to address global warming. As the sea ice recedes, so does the future of the Pacific walrus.”

The Pacific walrus is a well-known resident of the Arctic seas between Alaska and Siberia whose existence is intimately linked with the sea ice. The walrus, whose scientific name means “tooth-walking sea horse,” uses the sea ice as a platform from which to forage for clams and mussels in the relatively shallow waters over the continental shelf. Female walruses and their calves follow the sea ice year-round and rely on the safety of ice floes for nursing their calves and as essential resting platforms between foraging bouts since they cannot continually swim. All Pacific walrus are dependent on sea ice for breeding activities in winter.

However, this sea ice is rapidly shrinking and forcing the Pacific walrus into a land-based existence for which it is not adapted. In 2007, the early disappearance of summer sea ice pushed females and calves onto land on the Russian and Alaskan coasts in abnormally dense herds. As a result, calves suffered high mortality on land due to trampling by the dense herds. Walrus calves, unable to swim as long as adults, have also been observed abandoned by their mothers at sea, which has been attributed to the disappearance of the sea ice on which they would normally rest.

The impacts of global warming on the Pacific walrus will undoubtedly worsen in the coming years. Scientists expect that the Arctic will be ice-free in the summer as early as 2012 and almost certainly by 2030. The Pacific walrus’s winter sea-ice habitat is projected to decline 40 percent by mid-century if current greenhouse gas emissions continue, and any remaining sea ice in winter will be much thinner and will not last as long. On top of this, warming sea temperatures and sea-ice loss appear to be decreasing the abundance of the Pacific walrus’s bottom-dwelling prey.

At the same time the sea-ice habitat of the walrus is melting away, the species’ most important foraging grounds are being auctioned off to oil companies to extract more fossil fuels that will further accelerate global warming and the melting of the Arctic. The Chukchi Sea Lease Sale 193, held on February 6, 2008, resulted in 2.7 million acres of important Pacific walrus habitat being bid on by oil companies, thereby opening the door for oil and gas development in a significant portion of the Pacific walrus’s summer range. Numerous seismic surveys associated with oil leasing are planned in walrus habitat in the Chukchi Sea this summer.

Five other lease sales in the Pacific walrus’s habitat in the Chukchi, Beaufort, and Bering Seas are planned by 2012. Increased oil and gas development and the proliferation of shipping routes in the increasingly ice-free Arctic pose threats to the Pacific walrus due to the heightened risk of oil spills and rising levels of noise pollution and human disturbance.

“With rapid action to reduce carbon dioxide, methane, and black carbon emissions, combined with a moratorium on new oil-and-gas development and shipping routes in the Arctic, we can still save the Pacific walrus, the polar bear, and the entire Arctic ecosystem,” said Brendan Cummings, oceans program director for the Center. “But the window of opportunity to act is closing rapidly.”

The Pacific walrus is on a growing list of species for which the Center for Biological Diversity has sought Endangered Species Act protection due to global warming. The Center filed petitions for the Kittlitz’s murrelet in 2001, the staghorn and elkhorn corals in the Caribbean in 2004, the polar bear in 2005, 12 of the world’s penguin species in 2006, and the American pika and the ribbon seal in 2007. On May 14, 2008, in response to a court-ordered deadline, Secretary Kempthorne announced the listing of the polar bear as a threatened species under the Endangered Species Act.

Oil and gas development, shipping, and greenhouse gas emissions affecting the Arctic would be subject to greater regulation under the Endangered Species Act if the Pacific walrus is listed. Listing of the Pacific walrus would not affect subsistence harvest of the species by Alaska natives, which is exempted from the law’s prohibitions.

The petition is available at http://www.biologicaldiversity.org.

The UN Human Rights Council passed a resolution by consensus on 26 March 2008 recognising the threat that climate change poses to human rights. The resolution requests the Office of the United Nations High Commissioner for Human Rights conduct a detailed study on human rights and climate change. The views of States and other stakeholders are to be taken into account. The study is to be submitted to both the UN Human Rights Council and the Conference of Parties to the UNFCCC. 

SAN FRANCISCO, California, February 26, 2008 (ENS) - The arctic coastal village of Kivalina and a federally recognised tribe, the Alaska Native village of Kivalina, are suing two dozen oil, coal and power companies that they claim have made the climate warmer, causing their land and homes to slide into the Chukchi Sea. [http://en.wikipedia.org/wiki/Kivalina, Alaska]

Nine oil companies, as well as 14 power companies and one coal company are named in a lawsuit filed Tuesday in U.S. District Court in San Francisco.

The village of Kivalina is located on the tip of an eight mile long barrier island located between the Chukchi Sea and a lagoon at the mouth of the Kivalina River 80 miles north of the Arctic Circle. It has been threatened by erosion caused by wave action and sea storms for several decades and a relocation committee was first formed by the community 20 years ago.

An Inupiat village numbering nearly 400 people, Kivalina is the only community in the area where people hunt bowhead whales. The hunters of Kivalina engage in spring whaling from openings in the sea ice - openings that have widened year by year until now open water appears during times when the sea used to ice over.

The original village was located at the north end of the Kivalina Lagoon but was relocated. Due to severe sea wave erosion during storms, Kivalina hopes to relocate again to a new site nearby and studies of alternate sites are ongoing.

Financing for the move is estimated to cost hundreds of millions of dollars. The community has encountered difficulties in choosing a new village site and funding the relocation effort.

"An increase in the frequency and intensity of sea storms, degradation and melting of permafrost, and accelerated erosion of the shoreline have recently forced the village into a state of emergency," according to a 2006 Relocation Master Plan written by the U.S. Army Corps of Engineers.

"Sea storms have eroded the shoreline out from underneath several structures and threatens the airstrip. Emergency erosion control measures are in place, but will only slow the sea's inevitable reclamation of the island," the relocation plan states.

Funding problems aside, several sites identified as potential new village sites are problematic due to geophysical incompatibility with development, susceptibility to erosion or flooding, permittings, and social and cultural objections by various segments of the community.

Climate change scientist Dr. Gunter Weller of the University of Alaska-Fairbanks says Kivalina and another coastal village, Shishmaref, which is not part of the lawsuit, have suffered from erosion that he attributes to three factors, all deriving from global warming.

Permafrost has thawed, causing houses to slide off suddenly muddy cliffs, Weller said. Sea ice has thinned, creating expanses of open water that rise up in ever higher storm surges; and glaciers are melting, leading local sea levels to climb.

The townships must be relocated, at an estimated cost of more than $100 million, so they should stand a good chance of a court upholding a claim that they suffered damages because of global warming, Weller has said.

The lawsuit was filed on behalf of Kivalina by two nonprofit law groups, Center on Race, Poverty and the Environment and the Native American Rights Fund, as well as six other law firms.

Named in the lawsuit are BP PLC, BP American Inc., BP Products North America, Inc., Chevron Corp. Chevron U.S.A. Inc., ConocoPhillips Co., ExxonMobil, Royal Dutch Shell PLC and Shell Oil Co.

Also named were coal company Peabody Energy Corp., and power companies AES Corp., American Electric Power Co., Inc., American Electric Power Services Corp., DTE Energy Co., Duke Energy Corp., Dynegy Holdings, Inc., Edison International, MidAmerican Energy Holdings Co., Mirant Corp., NRG Energy, Pinnacle West Capital Corp., Reliant Energy Inc., The Southern Co., and Xcel Energy Inc.

Australian news items:

SBS World News Australia

The Age 

National Nine News

NELA (National Environmental Law Association) is to hold a conference in Fremantle, Western Australia on the Law of Climate Change. The conference will be held on 27-28 March 2008. Leading speakers will provide insight into the legal issues and challenges being generated by climate change.

To see the program and to register click here

SAN FRANCISCO— Today the Center for Biological Diversity filed a scientific petition with the U.S. Fish and Wildlife Service to protect the Pacific walrus under the federal Endangered Species Act due to threats from global warming and growing oil and gas development throughout its range.

“The Arctic is in crisis from global warming. Arctic sea ice is disappearing at a stunning rate that vastly exceeds the predictions of the best climate models,” said Shaye Wolf, a biologist with the Center for Biological Diversity and lead author of the petition.“ The Pacific walrus is an early victim of our failure to address global warming. As the sea ice recedes, so does the future of the Pacific walrus.”

The Pacific walrus is a well-known resident of the Arctic seas between Alaska and Siberia whose existence is intimately linked with the sea ice. The walrus, whose scientific name means “tooth walking sea horse,” uses the sea ice as a platform from which to forage for clams and mussels in the relatively shallow waters over the continental shelf. A walrus can consume as many as 6,000 clams in a single multi-hour foraging session. Female walruses and their calves follow the sea ice year-round and rely on the safety of ice floes for nursing their calves and as essential resting platforms between foraging bouts since they cannot continually swim. All Pacific walrus are dependent on sea ice for their breeding activities in winter.

However, this sea ice is rapidly shrinking and forcing the Pacific walrus into a land-based existence for which it is not adapted. In 2007, the early disappearance of summer sea ice pushed females and calves onto land in abnormally dense herds. As a result, females and young were forced to abandon large regions of their at-sea feeding grounds, and calves suffered high mortality on land due to trampling by the dense herds. Walrus calves, unable to swim as long as adults, have also been abandoned by their mothers at sea, which has been attributed to the disappearance of the sea ice on which they would normally rest.

The impacts of global warming on the Pacific walrus will undoubtedly worsen in this century. Scientists expect that the Arctic will be ice-free in the summer as early as 2012. The Pacific walrus’s winter sea-ice habitat is projected to decline 40 percent by mid-century if current greenhouse gas emissions continue, and any remaining sea ice in winter will be much thinner and will not last as long. On top of this, warming sea temperatures and sea-ice loss appear to be decreasing the abundance of the Pacific walrus’s bottom-dwelling prey. Habitat loss of this magnitude will undoubtedly commit Pacific walrus to population declines and an increased risk of extinction.

At the same time the sea-ice habitat of the walrus is melting away, its most important foraging grounds are being auctioned off to oil companies to extract more fossil fuels that will further accelerate global warming and the melting of the Arctic. The Chukchi Lease Sale 193, held on February 6, 2008, resulted in 2.7 million acres of important Pacific walrus being bid on by oil companies, thereby opening the door for oil and gas development in a significant portion of the Pacific walrus’s summer range. Five other lease sales in the Pacific walrus’s habitat in the Chukchi, Beaufort and Bering Seas are planned by 2012. Increased oil and gas development and the proliferation of shipping routes in the increasingly ice-free Arctic pose threats to the Pacific walrus from the heightened risk of oil spills and rising levels of noise pollution and human disturbance.

“With rapid action to reduce greenhouse gas emissions, combined with a moratorium on new oil and gas development and shipping routes in the Arctic, we can still save the Pacific walrus, the polar bear, and the Arctic ecosystem,” added Wolf. “But the window of opportunity to act is closing rapidly.”

The Pacific walrus joins a growing list of species for which the Center for Biological Diversity has sought Endangered Species Act protection due to global warming. The Center filed petitions for the Kittlitz’s murrelet in 2001, the staghorn and elkhorn corals in the Caribbean in 2004, the polar bear in 2005, 12 of the world’s penguin species in 2006, and the American pika and the ribbon seal in 2007.

Oil and gas development, shipping, and greenhouse gas emissions affecting the Arctic would be subject to greater regulation under the Endangered Species Act if the walrus is listed. Listing of the Pacific walrus would not affect subsistence harvest of the species by Alaska Natives, which is exempted from the law’s prohibitions.

The petition is available at http://www.biologicaldiversity.org.

The Blue Wedges Coalition has lodged an application to have federal approval for the Port Phillip Bay channel deepening project quashed. The court action is based upon federal Environment Minister Peter Garrett's 15-page statement for approving the project. Blue Wedges Coalition argues that the approval is invalid as the minister failed to notify federal Climate Change Minister Penny Wong that the project would raise water levels.

View media on this application here.

Blue Wedges has won the right to challenge the decision and the hearing will be held on 20 February 2008.

View media on this win here

The Center for Biological Diversity, Natural Resources Defense Council and Greenpeace initiated legal action against the Bush administration on 9 January 2008 by submitting a formal notice of intent to sue the administration for missing the deadline to decide whether or not polar bears will be listed under the Endangered Species Act due to global warming. The notice of intent to sue must be sent prior to filing a lawsuit in the federal court.

Press Release click here

On 2 January 2008, the California Attorney General's office announced it is suing the United States Environmental Protection Agency "for 'wrongfully and illegally' blocking the state's landmark tailpipe greenhouse gas emissions standards."

Press release click here

Petition click here

On 11 December 2007, the United States District Court for the Eastern District of California ruled in favour of the State of California in a case levied against the State by the automobile industry in an attempt to strike down the State's greenhouse gas law that regulates emissions from automobiles. Judge Anthony W. Ishii held that California's greenhouse gas law does not conflict with federal law by setting fuel economy standards, or with federal foreign policy, as long as California obtains the Clean Air Act waiver from EPA.

Judgement click here

The NSW Land & Environment Court has linked climate change with the principles of ESD in a recent case, Walker v. Minister for Planning [2007] NSWLEC 741.

Justice Peter Briscoe overturned a decision by the Planning Minister, Frank Sartor, to allow the property developer Stockland to build homes and an aged-care facility at beachside Sandon Point, 14 kilometres north of Wollongong.

Justice Biscoe found Mr Sartor had failed to consider "whether changed weather patterns would lead to an increased flood risk in connection with the proposed development in circumstances where flooding was identified as a major constraint on development of the site."

The judgment acknowledges that climate change needs to be considered in relation to all developments but particularly coastal developments. The judgment also requires developers to tailor projects to meet principles of ecologically sustainable development in order to get building approval from a council or the Government.

Media coverage click here

15 November 2007: The Ninth Circuit Court of Appeals ruled that the National Highway Traffic Safety Administration (NHTSA) violated the Energy Policy and Conservation Act by exempting SUVs and pickup trucks frm fuel-economy standards. The Energy Policy and Conservation Act requires that the NHTSA set corporate average fuel-economy (CAFE) standards at the maximum feasible level. The court's decision in the case requires that teh NHTSA undertake a full environmental review of the gas-mileage standards.

Judgement click here

On 5 November 2007, the State of California filed a Complaint for Declaratory and Injunctive Relief in federal court in Washington D.C. The suit asks a judge to order the Environmental Protection Agency to act on California's request that it be allowed to set limits on motor vehicle emissions of greenhouse gases. California, under the federal Clean Air Act, will be allowed to set limits that are more strict than those set by the federal government if the EPA grants the state a waiver. California submitted its application for that waiver in December 2005, and the EPA has not yet acted on it.

California's Complaint click here

The Environmental Defenders Office (EDO) - acting for Anvil Hill Project Watch Association Inc - has commence d a new legal action against the proposed Anvil Hill coal mine. The case relates to the decision by the Commonwealth govt to not declare AnvilHill a 'controlled action' under the Federal EPBC Act.

The EDO will argue that the Commonwealth was wrong to find that a measurable impact on matters of national environmental significance was necessary, above and beyond the contribution that the Project's greenhouse gas emissionswill make to climate change. We believe that this is the first time acoal mine in NSW has faced such a challenge.

The documents relevant to the new Anvil Hill case are at http://www.envlaw.com.au/anvil.html

Friends of the Earth Canada has launched a landmark lawsuit against the Government of Canada for abandoning ts international commitments under the Kyoto Protocol. Filed in Federal Court in Ottawa by Canada ’s foremost environmental law organisation, Sierra Legal, the lawsuit alleges that the federal government is violating Canadian law by failing to meet its binding international commitments to reduce greenhouse gas emissions.

Canadan is second only to Austria, worldwide, in the staggering size of its failure to meet its Kyoto target, with its greenhouse gas emissions more than 34% above its 6% reduction target. Last month, the Canadian Government set greenhouse reduction targets of 20% below 2006 levels by 2020, which would leave Canada about 39% above the Kyoto target for 2008-2012.

In October 2006, an international legal opinion was presented to the Canadian government indicating that Canada had failed to show demonstrable progress” in achieving its Kyoto target, as required by 2005. This failure, along with others, activated a legal duty on the Environment Minister under the Canadian Environmental Protection Act to act to prevent air pollution that violates an international agreement inding on Canada . The lawsuit is an application for judicial review, seeking enforcement of this duty.

Germanwatch Raises Complaint Against Volkswagen

Climate Damaging Business Strategy Violates OECD Guidelines for Multinational Enterprises

Bonn, 7 May 2007: Today, the environmental and development organisation Germanwatch raised a complaint against the Volkswagen Corporation. Germanwatch accuses the company of violating the OECD Guidelines for Multinational Enterprises.

http://www.germanwatch.org/presse/2007-05-07e.htm

Massachusetts also brought the case that led the Supreme Court to rule on April 2 that US environmental officials have the power to regulate greenhouse gas emissions -- a stinging defeat for the Bush administration.

"We intend to continue to press the federal government to live up to its statutory responsibilities to address excess emissions of greenhouse gases and other air pollutants," Massachusetts Attorney General Martha Coakley said.

In a statement, Coakley said she disagreed with the Department of Energy's assertion that it lacked statutory authority to move the new standards forward. As a result, she said, tougher rules would be delayed until 2010 due to the Department of Energy's interpretation of the 2005 Energy Policy Act. "The Commonwealth (of Massachusetts) disagrees with the new interpretation," she said.

The proposed new standard would have affected products that account for a significant share of US energy consumption and are commonly used in offices, schools and hotels, she said. Tightening standards for air conditioning products alone could save about 2.913 quadrillion BTUs (a basic unit of thermal energy) over 27 years, eliminating the need for several major power plants, she said, quoting federal studies.

The Natural Resources Defense Council, which is based in New York, filed a parallel challenge in the 2nd U.S Circuit Court of Appeals. Earthjustice, a nonprofit, public interest law firm, is handling the case for NRDC.

The Queensland Conservation Council (QCC) is holding a seminar on "Liability for GHG [Greenhouse Gas] emissions from coal mined in Queensland" in Brisbane on 3 May 2007.

Further information is available here.

On 13 April 2007, the expert panel on the Kooragang Coal Terminal Expansion released their recommendations.

"The Panel recognises the historic value of the coal industry in generating wealth and stimulating regional development. However, the scale of the coal industry development in the Hunter Valley, and the efficiency of the coal supply chain and export of coal through the NCIG CET in the Port of Newcastle, now has the potential to introduce adverse externalities at the regional and global scale ..... mechanisms such as those outlined in the NSW Greenhouse Plan need to be implemented to reduce the potential adverse impacts such as those related to the enhanced greenhouse emissions and climate change contributed to by the NCIG Project"

The Panel recommendations are:

1. to establish a regional cumulative impact assessment study of the overall social, ecological and economic cost and benefit of the coal mining industry and coal supply chain in the Hunter Valley

2. that the Planning Dept "consider how the scale of carbon dioxide emissions from final combustion of coal exported through the NCIG CET could be offset in NSW using a portfolio of approaches outlined in the NSW Greenhouse Plan".

3. that the DoP "lead discussions with othe NSW Government agencies, in particular with the NSW Greenhouse Office, to consider how to rapidly develop and implement the range of innovative funding and technology mechanisms in the NSW Greenhouse Plan. The primary aim would be to focus on how to remove barriers and enhance the uptake of eerngy efficiency and renewable technologies....."

4. establish a levy of $1/ton on new coal exports to set up a Hunter Valley Ethical Coal Trust ('ethical coal'?) that would finance sustainable development activities in the Hunter Valley.

In a landmark 5:4 decision, the U.S. Supreme Court has ruled that the Clean Air Act gives the Environmental Protection Agency (EPA) the authority to regulate carbon dioxide and other greenhouse gas emissions.

The case follows a petition in 1999 by a coalition of 19 environmental groups, 12 US States, several cities and a territory asking the EPA to regulate emissions of carbon dioxide and other greenhouse gases from motor vehicles, describing them as "pollutants". The EPA responded four years later, under the threat of legal action, by denying the petition.

In response to the petitioner's denial, the petitioners sought review of the EPA's decision in the Federal Appeals Court in Washington DC. On July 15 2005, the three-judge panel issued a divided decision that failed to decide decisively the core legal question of whether the EPA has the authority to regulate global warming pollution under the Clean Air Act.

In a majority judgment in the Supreme Court, Justice John Paul Stevens found: (i) that the applicants had standing to challenge the EPA's decision; (ii) that the Clean Air Act did give the EPA the authority to regulate exhaust pipe emissions of greenhouse gases; and (iiI) that the EPA must review its argument that it has the discretion not to regulate emissions. The majority found that the EPA's "laundry list" of reasons for failing to regulate, including foreign policy considerations, must be more closely tied to the purposes of the Clean Air Act.

The court's four conservative judges dissented. Chief Justice John Roberts particularly focused on the applicants' lack of standing. He contended that their grievances would be better resolved through Congress than the federal courts, though, significantly, he alleged that his position involved "no judgment" on whether global warming exists.

The Supreme Court's judgment reflects not only growing scientific consensus, but also increasing political awareness of climate change in the U.S..

On 13 March 2007, the British Government published its Draft Climate Change Bill, the first of its kind in the world. The Bill, if passed by Parliament, will commit the British government to legally binding reductions in greenhouse gas emissions.

The Bill commits the Government to a 60% reduction in emissions by 2050, but the Opposition may pressure the Government into a reduction in the order of 80%. An interim target sets reductions at between 26 per cent and 32 per cent by 2020, while binding five-year "carbon budgets" will be fixed 15 years ahead to ensure ongoing progress.

A Committee on Climate Change, appointed by the Government, will provide independent expert advice. Additionally, Ministers have promised to make an annual progress reports to parliament.

The Bill ensures that, if targets are missed, the Government could face judicial review. Environmental activist groups would be able to apply for such review, allowing judges to "name and shame" the Government or force it to buy more carbon credits to permit higher emissions.

Mighty River Power has abandoned its controversial proposal to refire the disused Marsden B power plant on coal. The company cited regulatory uncertainty for its decision. The decision follows a long saga of protest and litigation surrounding Mighty River's application with the Northland Regional Council for consent to redevelop the power plant.

In February 2005, Greenpeace protestors brought national attention to the issue by occupying the roof of the plant for nine days. Nonetheless, the Regional Council granted consent for Mighty River's proposal. In response, Greenpeace, with other community and environmental groups, lodged an appeal to the Environment Court. In subsequent appeals, argument was centred on the issue of whether climate change impacts needed to be considered in any approval of the refiring of the plant. While the Environment Court held that climate change was an irrelevant consideration in approving Marsden B, the High Court overturned the decision on appeal.

Concurrent with the litigation, the Department of Conservation (DOC) heard submissions on whether Mighty River Power could access conservation land to build and operate a coal conveyor belt. At the official hearing on January 2007, DOC received over 1,400 written submissions. Almost all of these opposed the plan.

On 14 November 2006, a coalition of conservation groups filed suit against the U.S. Government for refusing to complete a National Assessment of the impact of global warming on the environment, economy and health of the United States.

The assessment, due in November 2004, is required by the Global Change Research Act of 1990.

The last National Assessment, Climate Change Impacts on the United States: The Potential Consequences of Climate Variability and Change, was issued in October 2000. That report concluded that humans are contributing significantly to climate change and that current global warming is "unprecedented".

The attorneys bringing the case believe not only that the Bush administration was central in killing the report, but also that it was influential in burying the findings of the 2000 report.

In April 2005, at the request of Senators John Kerry and John McCain, the U.S. Government Accountability Office investigated the Bush administration's failure to produce a 2004 assessment. It concluded: (i) that the Bush administration had failed to complete a National Assessment for 2004 as required by the Change Research Act 1990; (ii) that the administration explicitly refuses to complete a single National Assessment; and (iii) that the administration's "piece-meal" approach lacks an explicit plan for assessing the effects of human-induced climate change.

Germanwatch and BUND (Friends of the Earth Germany) have begun a legal action to force the German government to disclose the contribution to climate change made by projects supported by the German taxpayer through its export credit agency Euler Hermes AG. They allege that the German Government has not acted in conformity with its obligations under freedom of information legislation.

Hermes is a public agency that supplies government-backed guarantees and insurance to German corporations that seek to expand their businesses in developing countries. It provides billions of dollars of funding support for energy, mining and transport projects around the world on behalf of the German taxpayer. The complainants allege that these projects give rise to greenhouse gas emissions that contribute to global climate change.

Germanwatch and Friends of the Earth Germany have lobbied the German government to disclose information on these projects since 1997, when the Kyoto Protocol was agreed upon, using German laws based on European Union legislation on freedom of environmental information.

The German government has refused to disclose the information for a variety of reasons, including an argument that climate change information of the type in question is not subject to the Environmental Information Act as it does not fulfil any direct mandate of environmental protection.

Germanwatch and Friends of the Earth Germany allege that the reasons put forward by the government are spurious and have taken legal action to ensure that the information is freely available to the public.