What the Climate Act Review really means

The State Government tabled the report of the Review of the Climate Change Act 2010 (Vic), along with its response to it, in Parliament on Tuesday.

Having had a chance to properly read the report and the government’s response (which were only released on Tuesday afternoon, after the government’s announcement that it would scrap the 20% target) that judgment holds.

But the report is a bit more nuanced than it first looks, and might not all be bad news.  In particular, the  report and response both recognise an enduring role for the EPA in regulating GHG emissions.

Here’s a quick summary of some key points, and what they mean for climate law and policy in Victoria in future.

The target (i.e. the bad news) The key recommendation of the Review was that the legislated target of reducing the state’s greenhouse gas emissions by 20% from 2000 levels by 2020 be repealed.

This key decision shaped the rest of the Review, which proceeded to go through and say that every part of the Act which was based on or made reference to that target should be repealed.  This included the report on greenhouse gas emissions, the EPA’s mandate to regulate (discussed more below), and the Act’s policy objectives.

This is the biggest outcome of the review, and the most disappointing.  It is, to quote a tweet from Friends of the Earth’s Cam Walker, “a failure of vision”.

The Review and the Government appear fixated on the cost of reducing emissions and preparing for climate change, rather than the opportunities of doing so.  But as EDO argued in our submission to the review, Victoria has much to gain from assuming a position of national climate leadership.

Getting ahead of the rest of the country in reducing emissions gives Victorian an ‘early mover’ advantage in the emerging clean economy.  The Clean Energy Future package is set to drive billions of dollars of investment in renewable energy and create thousands of clean energy jobs.  You might have thought that Victoria could use that kind of a boost right now.

The EPA’s power to regulate GHG emissions (the not-all-bad news)

Contrary to what you might have heard, neither the Review nor the Government’s response to it recommended scrapping the EPA’s power to regulate GHG emissions.

The key part here is recommendations 9-11.  The Review recognises that the EPA has in all likelihood always had the power to regulate GHG emissions under the Environment Protection Act 1970 (Vic).  They actually welcome the amendment of the definition of ‘waste’ to include GHG emissions and clarify this.

The part they take issue with is section 13(1)(ga)(i) of the EP Act, which explicitly provides that the EPA should have the power to regulate to achieve the 20% target.  In accordance with their main recommendation to repeal this target, anything that mentions or relies on it has to go.

But the Review recommends that section 13(1)(ga)(ii), which provides that the EPA should regulate GHG emissions to prevent harm to the environment, be retained.  Indeed, they actually recommend that the EPA publish a statement of how it intends to use this power — which the Government has committed to do by December 2012.

This is an important recognition of the enduring role of EPA regulation in responding to climate change.  It recognises the role that laws and regulations have to play in complementing the carbon price, and meeting even the less ambitious national 5% emission reduction target.

The Review doesn’t rule out a 0.8 tCO2e/MWh emissions performance standard for new power stations either.  Referring to the EDO submission (at p 35), it recognises the role that a 0.8 tCO2e-/MWh standard could play in stopping carbon-intensive projects and providing investment certainty, and provides simply that “there would have to be a strong case on increased investor certainty grounds for a standard to be required.”

Of course, the Minister for Energy for Resources has now closed that door, by announcing yesterday (separately of the Review or the Government’s response) that the Government will not be pursuing an emissions performance standard for new power stations.

How the Government decides to use this power when the EPA releases its statement of regulatory intent in December 2012 will be a space to watch in the year ahead.

The decision-making (the sort-of-good news)

The Review supported retaining the obligation in section 14 of the Act, which requires decision-makers to consider climate change impacts in certain cases.  The government has accepted this recommendation in full.

The Review actually contemplated expanding this provision to more decisions in future.  Recognising (at p 21) that few decisions have been made under this section (largely due to the sparse list of 6 fairly obscure decisions covered by it) it said that “their ongoing effectiveness should be closely monitored” and if they prove effective, “the potential for such provisions to be applied more widely to other relevant Acts” should be considered.

But of course, that won’t be until the next mandatory review of the Act in 2015.

Other state climate change policies (the dodge)

Neither the Review nor the Government’s response said anything about what other policy measures might be necessary or appropriate to deal with climate change.

This is a narrow reading of the terms of reference for the review, which required the Review to “examine the Act with respect to…appropriate policy mechanisms to achieve the Victorian Government’s policy objectives as outlined in the Act.

The Government has also failed to outline a policy plan to help Victorians deal with the threat of catastrophic climate change.  They have made no moves to develop state laws or policies to deal with climate change in the fields of transport, planning, forestry or mining.  This underscores the point about the failure of vision.

Looks like we’ve still got that debate to look forward to.

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