Key Issues in Environmental Law and Policy – 19 May 2008

1. Key Issues in Environmental Law and Policy – 19 May 2008

2. Brad Jessup • Environmental lawyer. • Masters in Environment, Society and Development. • Dissertation on value conflicts in wind energy • ANU since November 2007. • PhD on justice in Australian environmental law. • Conference on Environmental Assessment - Friday 23 May from 1.50pm. • JessupB@law.anu.edu.auRoom 259, Law (Building 6), 02 6125 3624

3. Environmental law and policy • Law as policy. • Law as a barrier to policy. • Law as an influence on policy. • Law as a response to policy. • Law as an institution that implements policy.

4. Law as policy • International environmental law, most commonly ‘soft law’, policy driven, objectives focused, ambiguous, drafted to reach consensus. • Stockholm Declaration on Human Environment. • United Nations Framework Convention on Climate Change. • Stockholm Convention on Persistent Organic Pollutants: best available techniques. • International law guides domestic law-making.

5. Law as a barrier to policy • Property interests, particularly private land and long held water rights. • Permits and licences. Incentives and priorities (especially electricity generation and mining). • Legitimate expectations of renewal. • Parliamentary law-making process. • Cattle grazing in Alpine National Park required legislative change. • Reticence of judges to explore new concepts, including precaution, ESD, environmental justice.

6. Law as an influence on policy • Human rights and the environment. • ACT Human Rights Act, Victorian Charter of Human Rights and Responsibilities Act. • European and American Conventions on Human Rights. • Rights to privacy, property, access to information, fair hearing. • Constitutional right to a healthy environment? • Environmental justice, ecological justice?

7. Law as a response to policy • Current issues: Climate change, water, biodiversity. • Creates rights (water licences, carbon trading, taking rights). • Imposes obligations (clean-up and offsetting) and creates offences (EPBC Act significant impact offences). • Restricts activities (land clearing, emission limits). • Rarely option of first resort.

8. Law as an institution • ESD, polluter pays, precaution, participation. • Planning law and environmental assessment. • Process established under law to assess merits of proposal against policy (in theory!). • Nowingi waste disposal site versus Desalination plant in Wonthaggi. • Law is malleable, subject to discretion, and whim. • Power to intervene by Ministers, lobbying and deals (Brian Burke, Wollongong Council).

9. Key issues • Weakness of international environmental law. • Problem of existing rights and interests. • Push for new rights - human rights and environmental rights - a justice based approach. • Reluctance of law reform and laws to achieve environmental policy in the first instance. • Opportunities - climate change, water, biodiversity. • Key laws highly political and discretionary.

10. Law and the Environment • LAWS3103 Law and the Environment • http://lawandenvironment.wordpress.com • May be counted towards a major in Environmental Policy, Environmental Studies, and Human Sciences.

11. Law and the Environment • Critical approach to environmental law, rather than studying the law. • Assessment: research project and take-home exam. • Policy-maker’s or scientist’s view in exam rather than a lawyer’s view. • Proposed teaching in 3 hour block. • Online tools and forums.

12. Questions? • Environmental law and policy. • Course content, approach, objectives? • JessupB@law.anu.edu.auRoom 259, Law Building (Building 6)02 6125 3624