Environmental Issues Arising in the Wet Tropics Area of Queensland - Essay Example

Environmental Issues arising in the Wet tropics area of Queensland Summary: An environmental group(fictitious) seeks to put forward an application to the Minister of Environment to abandon shale oil development as a potential alternative energy source permanently, in view of environmental implications. The application will seek a review of the existing SEPP and possibly file a public interest petition against Queensland Energy resources of Australia, to exclude and prevent any further development of the Stuart shale oil project that was already approved. I am asked to advise on the legal principles that will arise in the context of the application of the environmental group. The issues to be considered are the chances of successfully bringing about a review of the SSEP on the basis of the critical nature of environmental issues raised and options available for litigation and arbitration, should the need arise. The major legal aspects that arise in this connection are the standing provisions available to members of the public, EIA provisions and the status of the Great Barrier Reefs as a Heritage area. Background: Oil shale is a sedimentary rock which contains the hydrocarbon Kerogen or fossilized algae, which can only be liberated by the application of heat, so that the hydrocarbon is released as vapor which when cooled becomes oil1. Gladstone in the Queensland area has about 20 billion barrels worth of shale oil available from silica based deposits that are projected to provide enough oil for Australia for 50 years.2 However the problem with the use of oil shales is that there are higher emissions of greenhouse gases produced. The Stuart Oil Shale project was developed at Gladstone by Southern Pacific Petroleum and the Queensland Government had approved the Company’s Environmental Impact Statement and approved stage 1 of the project.3 The trial Plant has been in operation until it was transferred to the Queensland Energy resources (Management) Pty Ltd after February 20044 with simultaneous environmental assessment being carried out.5 The Ross Smith Energy group of Calgary, Canada carried out an independent assessment of the Shale oil project as Gladstone and offered a positive assessment, although it qualified in its report that the relative benefits of the ATP technology being used would have to be determined during the second stage.6 There was widespread opposition from members of the public and environmental groups to the shale oil project at Gladstone due to its adverse environmental impact. Greenhouse emissions from stage 2 were projected to be four times higher than that of normal oil extraction and environmental organizations such as Greenpeace campaigned against the project because it made people sick and posed a danger to the delicate coral reefs of the Great barrier Reef.7 Reefs require water temperature ranges from 23- 290 C for optimal growth8 and scientists have pointed out that increased emissions of greenhouse gases are threatening the survival of the coral.9 Reports have highlighted the dangers to coral reefs from global warming through greenhouse emissions and the grave environmental threat posed by severe coral bleaching.10 According to marine scientist Ray Berkelmans, the corals in the Keppels area have turned into a “white desert” as a result of the massive death of corals which are vital to the environment because they help to prevent coastal erosion and are in effect, the nurseries where many varieties of fish are spawned11. The Great Barrier reef pulls in more than 2 billion dollars into the Australian economy, through tourism, shipping and fishing, but research carried out by the CSIRO reports that pollution, run offs and trawling are the most destructive activities along the GBF, with rise in temperature being the single largest factor contributing to the death of corals and the potential destruction of an environmentally sensitive Heritage area.12 For example, a new species of fish that has developed along the Reef, which lives for the short span of eight weeks, reflecting potentially changing trends in fish survival along the reef.13 According to projections made in a report of the World Wildlife Foundation Australia and the Queensland Tourism Industry Council, which focused primarily on the effect of anthropogenic climate changes and its impact on the great barrier Reef, the existing coral will be reduced to less than five percent by the year 2050, if global emissions are not reduced.14 The Shale oil project was halted after its first stage due to active protests by the public and environmental group such as Greenpeace15. The potentially damaging aspects of increased greenhouse gas emissions were the major criterion for stopping the Stuart shale oil project at Gladstone.16 While the Stuart project was the single significant oil production facility and has been temporarily closed down due to vocal public opposition, there is the danger that it could be resurrected and allowed to move into Stage 2, especially since there are still several potential shale oil projects still operational in the Queensland area, posing similar threats of high levels of greenhouse gases.17 If the Stuart Shale project moves into Stage 2, that would set the stage for approval of several other proposals. Such high levels of greenhouse gases emissions from permitted development of shale oil projects will mean that the worst impacts of climate change will become unavoidable.18 Hence the proposed legal action seeks a review of the existing SSEP to include provisions to prevent further development of shale oil. Legal issues that arise in context of the proposed legal action: Environmental law is largely dependent upon manipulation of public opinion by pressure groups.19 Robin Eckersley has argued in favor of eschewing the traditional anthropocentric approach20 and adopting an ecocentric perspective that will also take into account the rights of non human species.21 This is relevant in the approach of the environmental group, since the major focus of the petition is to seek protection of the ecologically sensitive coral and to prevent damage to the environment. New South Wales has open standing provisions, which will allow members of the public to bring action under common law rules. A new object has been introduced in 1996 into Section 5 of the EPAA, which reflects the need to extend environmental protection such that it includes threatened species and ecological communities22. Under Section 123 of the EPAA, members of the public have standing to enforce EPI’s under the SPAA22a. Therefore, the fictitious environmental group may be able to file a petition to the concerned Minister for review of the existing policies under SEPP no: 7122b, also appealing to the Minister’s “broad discretion” under section 39(2)22c to review environmental planning policies and introduce amendments to prohibit development of shale oil as necessary. Under Section 475(7)(a) and (b) of the Environment protection and Biodiversity Conservation Act (1999), a group filing for review of licenses issued to shale oil companies would even be eligible to bring suit because (a) their interests are affected by the functioning of shale oil facilities which produce dioxins that have been shown to be harmful to health causing cancer and impacting upon the immune system23 and (b) they have been involved in this environmental issue before, as a part of Greenpeace’s initiative to halt the progress of the Stuart Shale oil facility into Stage 224. Since in the case of the Stuart Shale project, any further development would be undertaken by a public authority – Queensland Energy resources – this may come under EIA requirements in Part 5 of the EPAA, since Queensland Energy Authority does not require development consent25 and since further development would have a substantial environmental impact26.One of the drawbacks of public submissions as explained by Rogers is the fact that public submissions can be ignored and their opposition may not be a significant factor in decision making.27 However, since this public interest petition seeks a review by way of an Environmental Impact Assessment, section 111 of the Environment Planning and Assessment requires that the authorities must undertake a full and complete examination into all the environmental issues related to the extraction of shale oil and this will include the high levels of greenhouse emissions which could destroy the coral. The effect of an activity on a crucial habitat must also be considered,28 additionally, bio diversity conservation29 and long term environmental effects must also be taken into account.30 Since the reduction of emissions in the extraction of shale oil has not been conclusively shown by those who claim the second stage of the project would reduce emissions31, therefore the activity of further extraction of shale oil and release of greenhouse gases is likely to affect the environment and the threatened species - the coral.32 An EIS in reference to the second stage of development of the Stuart Shale oil project may be necessary in this case, on which members of the public can make submissions33 or participate in an inquiry34 if such is decreed by the Minister. The Queensland Energy authority will then be obliged to undertake a detailed examination of any further implementation of the shale oil project.35 As a part of this test, endangerment of the coral and other marine life must be considered36 as also added risks to the safety of the environment37 through the possibility of ill health of the locals. Moreover, it will also be necessary for the public authority to provide feasible alternative sources of energy that may be developed instead of the shale oil.38 Since the test in section 112 will be met in this case due to the proven endangerment of the coral, the Minister can refuse to provide consent for any further activity on the shale oil project in order to avoid further impact on the environment. Further development of shale oil may also require the intervention of the Commonwealth, in assessing the environmental impact of projects like the Stuart shale oil facility because potential damage to the Great Barrier Reef through greenhouse emissions would qualify as a development that impact significantly upon the Commonwealth marine environment.38a In the matter of greenhouse emissions, the matter would fall under the EBPCA and the Environment Minister would be required to submit assessment reports every five years38b. The Minister is required to give the widest possible consideration to all adverse impacts that the project is likely to have.38c The second stage of development of the Stuart shale oil project presents significant adverse impacts in the future, and the Minister is also required to take this into consideration.38d Since January 2004, the conservation of national heritage has become an environmentally significant issue and therefore, the status of the Great barrier Reef as a heritage property may also justify intervention by the Commonwealth to prevent further development of Shale oil. The Great Barrier Reef qualifies as a heritage property,38e under the criteria of; “being components of the natural environment of Australia….that have aesthetic, historic, scientific or social significance or other special value for future generations….”39 As a result, it is not permissible for any person to carry on any activity that could have a significant negative impact and cause the value of the heritage property to be degraded, damaged or lost, unless he has specific permission to do so.39a Therefore the Great Barrier reef, as a heritage property, must be accorded the highest levels of protection and civil and criminal penalties may be due from persons or organizations who continue with the Shale project40 because it can have an adverse impact on the Great barrier reef as detailed before41. In this case, the nearby area of Gladstone where the shale extraction facility will function will all too easily create a damaging effect by local raising greenhouse emission levels and in view of the already critical state of the coral, this may be unacceptable, as was also held in the case of another environmental issue in the case of Booth42. Thus in making an assessment on the relative merits and demerits of allowing the Shale extractions to continue, the Minister for Environment and Heritage will make an assessment of the impact of the activity on the heritage area and if it is likely to be damaging, may refuse consent.43 In this instance, since the damage that is being caused to the environment and specifically to a threatened species – the coral, through the issue of warming of ocean waters caused by greenhouse emissions, the Gladstone area will be close enough to the protected heritage areas of the Great barrier Reef to merit protection under the Heritage Act (1977) of New South Wales and Commonwealth intervention could prohibit further development.. Although Gladstone as such may not fall within designated heritage territory, nevertheless it is close enough and potential damage is lethal enough to merit this consideration. Issues favoring the Opposition: Points that may be raised by the opposition is whether the Government’s actions to review and permanently put an end to development of the Stuart shale oil facility would constitute a “taking”44 and whether the Government would be obliged to compensate developers/ Queensland Energy Pty for profits that could have been made but have been prevented through the stop order. In the case of Newcrest for example, the High Court held that the Commonwealth was obliged to compensate Newcrest for lost revenues from mining interests.45 It is possible that in the light of the global energy crisis, the Queensland Energy Resources that currently has the rights for shale oil development may decide to resurrect the shale oil project at some future date, since environmental law is largely conditioned by anthropocentric interests46. They can circumvent obligations under SEPP 71 by relying on existing use rights47 which in Gladstone, is currently ear marked for the Shale oil project that has been in existence since the late 1990s. Existing use can be carried on indefinitely, as spelt out by Kirby J48: “existing use rights tends towards the protection of private interests in land where these conflict with the social interests…” Existing use allows such developments as shale oil projects to continue on an indefinite basis, therefore future developments and the pressure of energy requirements coupled with anthropocentric interests could resurrect the project unless EPIs exist that will permanently prohibit such development. Possible legal course of action: At the outset, it may be stated that it is difficult for members of the public to successfully challenge the validity of an existing SEPP49 or have any say in the shaping of an SEPP. Any decisions to be made in such matters are left entirely to the discretion of the Minister concerned.50 Moreover, the environmental group will be coming up against another Government agency– the Queensland Energy Authority which is not obliged to seek any license before proceeding with Stage 2 of the Shale oil project, since this has already been approved51. However, public interest groups have successfully been able to arrest progress of this project after Stage 152. There is an obligation upon Government authorities to arrest further development permanently under the precautionary principle, i.e, if scientific uncertainty exists, the proposed development should not necessarily go ahead53. Since the reduction of emissions in Stage 2 has not been satisfactorily established while there is ample evidence to support the potential endangerment of the coral of the Great Barrier Reef through extensive bleaching, it is possible that threat to a species in a heritage area of Australia can be successfully established in an application that may merit the Minister’s review and may justify emergent action by the Commonwealth to prevent further developments.. The group can approach the relevant authorities and the Ministers of heritage and environment as detailed earlier, through relevant provisions that exist in the EPAA and the heritage Acts or seek intervention by the Commonwealth. Alternatively, they may also seek a public inquiry process54 into the environmental consequences of further continuation of the Shale project which will elicit public and expert scientific opinion and can seek a review from the Minister on the basis of such inquiries. It is also possible for this group to take the issue to the Courts through the offices of the Environmental Defender (EDO)54a, which is a community legal centre specializing in environmental law offering free legal advice to members of the Community on how to successfully prosecute cases to protect the environment in the Courts55. The group can seek a permanent injunction from the Court on any further activity concerned with the development of shale oil projects. However, if such an avenue is pursued, the possibility of being saddled with legal costs, as was the case in Richmond River Council v Oshlack56 must also be considered. Alternative dispute resolution also offers some potential in this case, since an undertaking can be sought from the Queensland energy authority to desist from any shale oil activity. This method may be sent to be less effective in this case due to the inequity in bargaining position of the two parties as pointed out by Amy DJ.57 Brain Wynne points out the fact the environmental legislation does not generally yield satisfactory results due to the heightened focus on procedural irregularities at the cost of the real environmental issues.58 Conclusion: The environmental group has an excellent chance to arrest further development of the Stuart shale oil project, since it may also seek Commonwealth intervention, in view of the status of the Great barrier Reef as a heritage property. The best course of action is to seek action by the Minister to stop the Stuart oil project so that the second stage cannot be revived later. However, since the objective in this case is to permanently stop shale oil development, the group may seek action by the Minister to prepare a five year assessment report as required by the EBPCA59 for the Commonwealth, to yield a permanent policy against shale oil. A public interest litigation may be considered as the last option if the desired objective is not achieved. Bibliography * Amy, DJ, 1983. The politics of environmental mediation 11 Ecology law Quarterly 1 * Annonymous, 2005. Fastest living fish on the reef. New Scientist, April 30-May 6. 186 (2497) at pp18 * Annonymous, 2004. Climate change may cause many coral reefs to disappear Sea technology, 45(5), pp 58 * Annonymous, 2006. Concern about severe coral bleaching in Great barrier Reef Sea technology, 47(3) pp 57-58 * Australian Heritage Commission Act (1975) (Cth) * Booth v Bosworth & Bosworth (2001) FCA 1453. 17/01/01, Federal Court summary * Bailey v Forestry Commission of NSW (1989) 67 LGRA 200 * Commonwealth Environment Protection (Impact of proposals) Act 1974 * Environmental Approvals. [online] available at: http://www1.industry.gov.au/content/controlfiles/display_details.cfm?ObjectID=2ED28C8D-A576-4186-80C72E1DCEF096AE * Environmental planning and assessment Act of 1979. * Eckersely, Robin, 1996. Liberal democracy and the rights of nature” the struggle for inclusion In Mathews, F, 1996. Ecology and democracy. London and Portland: Frank Cass, pp 173 * Greenpeace report, 2004. Victory: Shale oil project collapses. [online] available at: http://www.greenpeace.org/international/news/shale-oil-victory * http://www.nrm.qld.gov.au/mines/petroleum_gas/production.html * http://www.ens-newswire.com/ens/aug2003/2003-08-12-03.asp * Hazards to Coral reefs [online] available at: http://www.coris.noaa.gov/about/hazards/ * Johnson, James, 2000. Civil enforcement of environmental laws of Australia pp 435-443 * LAW00118 Notes * List of oil shale projects at: http://www.nrm.qld.gov.au/mines/petroleum_gas/pdf/pet_oil_shale_proj_dev_table.pdf * Minister for Urban Affairs and Planning v Rosemount estates Pty Ltd and Gidley-Baird v Minister for Urban Affairs and Planning and Bengalla Mining Pty Ltd (1996) 90 LGERA 31 * Matthew, Freya, 1991. Democracy and the ecological crisis 16 Legal Service Bulletin 157 * North Sydney Municipal Council v Boyt Radio and Electrical Pty Ltd and others (1989) 67 LGRA 344 at page 345 * Newcrest Mining (WA) Ltdv Commonwealth and the Director of National Parks and Wildlife(1997)147 ALR 42. * National Marine Fisheries Service (NMFS) 2001. Protected resources [online] available at: http://www.nmfs.noaa.gov/prot_res/PR/coralhome.html * Perry, Michael, 2006. Part of Great barrier reef ‘a white desert.’ MSNBC Report, March 14 * Positive assessment of Stuart Project [online] available at: http://www.ferret.com.au/articles/4e/0c01654e.asp * Pitcher et al 1997 * Rogers, Judy, 1988. Environmental impact assessment. Does it really work? Habitat. pp 22 * Richmond River Council v Oshlack (1996) 91 LGERA 99 * Sperling, Karla, 1997. Going down the takings path: Private rights and public interest 14 Environmental and Planning Law Journal 427 * Shale Oil: Campaign overview: http://www.greenpeace.org.au/climate/causes/criminals/shaleoil/overview.html * Smith Stuart, 2002. Focus on Australian shale oil Department of Industry, Tourism and resources. [online] available at: http://www.iea.org/textbase/work/2002/calgary/Smithdoc.pdf * Threatened species conservation Act 1995 (NSW), * Wynne, Brain Rationality and Ritual:The windscale Inquiry and Nuclear decisions in Britain. The British Society for the history of science. Chalfont St. Giles, 1982:123 Read More