Promoting sustainabiity

In April 2009, the Obama Administration took a dramatic policy shift to implement the USA Supreme Court decision, promising to regulate global warming pollution - for the first time - at the Federal level.

In November 2009, the EPA (USA) held public meetings, on proposed GHG national emission standards for new or existing, large industrial facilities - power plants, refineries, and cement production facilities. These regulatory control standards for reducing emissions cover about 70 per cent of the total GHG emissions for stationary sources in the USA.

The outcome of the EPA (USA) historic decision can be distinguished from an ETS. Climate law reduces GHG emissions through regulatory control - not through a “cap and trade” mechanism. Regulatory control gives effect to the “polluter pays principle”. The costs of pollution are borne by those responsible for it.

Unlike the USA, the regulatory control of CO2 emissions has not been considered in Australia. The existing environmental protection legislative framework for harm-based regulatory control in the States and Territories - together with Commonwealth National Environment Protection Measures legislation - provides the basis for national air quality emission standards being set.

Australia already has national air quality standards for the “acid rain” gases, sulphur dioxide and nitrogen dioxide; emissions of particulates (which coal fired power stations emit), lead and carbon monoxide because of “public health” concerns; and the GHG, chlorofluorocarbons.

Regulatory control of GHG emissions requires a bipartisan approach between government and affected industries. An approach based on conflict management and resolution concepts is essential to set national CO2 emission standards in Australia that are both climate change-effective and cost-effective.

For regulatory control of CO2 emissions to be part of any sustainable solution to combat climate change, the need for government to effectively engage affected industries using a process based on established principles for conflict resolution is paramount: shared responsibility, joint problem-solving and ownership in the outcome are key elements of the process for setting national CO2 emissions standards.

The next category of “National Measures” to promote sustainable development recognises an increasing reliance on renewables for a clean energy economy. It is clear that the future will bring a more efficient system of energy generation, with renewables having a key role as part of any sustainable solution for reducing CO2 emissions.

A third category of “National Measures” is based on the promotion of sustainable forest management practices, afforestation and reforestation. The concept of sustainability recognises the contribution to exports made by coal and woodchip - but not at the expense of environmental quality. A government that provided financial incentives for reafforestation programs to offset atmospheric CO2 emissions would be recognised, globally, as an environmentally responsible government.

Another category of “National Measures” to promote sustainable development relates to CCS and Advanced and Innovative Environmentally Sound Technologies e.g. bio-char, LNG, nuclear. Adoption of these technologies requires any scientific uncertainty and unresolved questions with their application being resolved and validated by risk analysis.

A sustainable solution under the Kyoto Protocol to reduce GHG emissions requires finding the optimal energy mix of "National Measures", which all have a part in the overall solution to reduce emissions: this “energy mix” must meet any prescribed legal emission reduction target set by government to reduce emissions.

The US statute, the National Environmental Policy Act of 1969 ("NEPA") has been described as possibly the most successful legal export in history, as it has been a model for the environmental impact assessment process in more than 100 countries. Could it be possible for the decision of the US Supreme Court in Massachusetts v. EPA to fulfil a similar role as NEPA? That is, as a "National Measure" under the Kyoto Protocol that enhances energy efficiency by limiting and reducing emissions and promoting sustainable development.

Australia now has an opportunity to be a catalyst for the world to consider the effectiveness of a sustainable solution to reduce GHG emissions to combat the risk of climate change, in a manner consistent with obligations under the Kyoto Protocol.