The release of the report of the Victorian Independent Review Committee in February 2016 proposes major changes to the regulatory framework for climate change in Victoria. In particular, it suggests establishing new targets to cut emissions, implementing a legally binding Charter of Climate Change Objectives and Principles and providing additional powers to the Environment Protection Authority Victoria (EPA) to regulate greenhouse gas emission.

This article provides a background of the Review and highlights the key recommendations which, if approved by the Government, will bolster the climate change regulatory framework in Victoria.

Key recommendations

If implemented, these recommendations would make climate change a central part of decision making, open to enforcement by legal challenge.

  • Charter to provide a broad legal standing to enable certain individuals and groups to challenge the legality of decisions, as well as possible limited merits review of some decisions;
  • Application for approvals, licences and major transport infrastructure pursuant to a range of legislation must consider climate change impacts in the decision making process such as the Planning and Environment Act 1987Mineral Resources (Sustainable Development) Act 1990; and Major Transport Projects Facilitation Act 2009.
  • EPA provided with more powers to regulate GHG emissions.

Background

Globally, climate change is a hot topic in light of the success of the 21st Conference of the Parties (COP21) to the United Nations Framework Convention on Climate Change(UNFCCC) in December 2015 in Paris.

At the COP21, the signatories committed to hold the increase in the global average temperature to well below 2 degrees above pre-industrial levels, and to pursue efforts to limit the temperature increase to 1.5 degrees.

In mid-2015, the Victorian Government announced a review of the Climate Change Act 2010(Review)The Review was completed on 30 December 2015 and a report, including findings and recommendations of the Independent Committee, was tabled in Parliament by the Minister for Environment, Climate Change and Water on 11 February 2016. The Government is considering the recommendations and will release the Government’s response shortly.

Timing of the Review

The Act was passed by the Victorian Parliament in September 2010 and came into effect on 1 July 2011. The Act was reviewed in late 2011, triggered by the introduction of the Clean Energy Act 2011 by the Commonwealth Government. This is the second review of the Act.

Public submissions were invited from 6 July to 10 August. More than 100 individual submissions were received, along with around 1550 campaign submissions.

Recommendations

The report makes 33 recommendations to significantly amend the regulatory framework for climate change in Victoria. Some of the key recommendations are summarised below.

1. Emissions reduction target

The report recommends that the Act include a long-term emissions reduction target that is based on the best available science and that can be adjusted in light of new information. The report does not specify a long-term target, however it states that the target should, ‘at the very least, place Victoria on a pathway to pursuing efforts to limit the temperature increase to 1.5 degrees Celsius’.

In addition, the report proposes that the Act introduce a process for rolling multi-year interim emissions reduction targets to support delivery of the long term target. The process would indicate a maximum level of GHG emissions for Victoria.

2. EPA

The report recommends that the Government reinstate the EPA’s power to regulate GHG emissions from facilities that the EPA regulates.

Specifically, the report recommends that the EPA be equipped to ‘use its powers to issue an amend licences to achieve significant reductions’ in GHG emissions, and recommends amendments to the SEPP (Air Quality Management).

The report also proposes vesting the Environment Minister with a ‘clear legal power’ to implement measures to reduce emissions at source, whether through EPA licensing, establishing a trading scheme, adopting carbon taxes, or accelerating the phase-out or upgrade of high-emitting facilities.

3. Expansion of the Decision Making Framework and Schedule 1

At present, the Act creates a legal obligation on decision makers to consider climate change where relevant and where decisions are made under legislation specified under Schedule 1.

The report recommends a substantial expansion to the legislation stated in Schedule 1. This will require decision makers to undertake an assessment of climate change impacts or risks, or whether they will significantly impact the pursuit by Government of climate change mitigation and adaptation and disaster risk reduction. The report includes the following examples for inclusion in Schedule 1 (which already applies to Catchment and Land Protection Act 1994, Coastal Management Act 1995, Environment Protection Act 1970, Flora and Fauna Guarantee Act 1988, Public Health and Wellbeing Act 2008 and Water Act 1989):

  • Development of council plans under the Local Government Act 1989;
  • Development of risk management strategies under the Financial Management Act 1994;
  • Approvals under the Planning and Environment Act 1987;
  • Decisions about timber allocations under the Sustainable Forests (Timber) Act 2004;
  • Decisions to grant licences and approvals for coal and coal seam gas, under the Mineral Resources (Sustainable Development) Act 1990; and
  • Decisions about major transport infrastructure under the Major Transport Projects Facilitation Act 2009.

4. Charter

The report notes a key weakness of the Act is that it does not effectively promote the consideration of climate change in government decision making.

To address this, the report recommends the implementation of a Charter of Climate Change Objectives and Principles. Similar to the Victorian Charter of Human Rights and Responsibilities 2006, the climate charter would be given legal force and provide a broad legal standing to enable certain individuals and groups to challenge the legality of decisions. This aims to ‘improve statutory compliance and accountability, and ensure that government decisions are consistent with Victoria’s best practice regulatory principles’.

5. Other proposed changes

In addition to the above, the following recommendations were made:

  • Update the Act to reflect the current policy context and legislation implemented since the commencement of the Act that may require an assessment of either climate change impacts or risks, or significant impacts to the delivery of climate change mitigation and adaptation and disaster risk reduction outcomes.
  • Preparation of ministerial guidelines to assist decision makers to understand their statutory obligations under the Act.
  • Implementing a merits reviews mechanism for specified Schedule 1 decisions in certain circumstances. However, the IRC notes that at present there is no administrative tribunal which possesses sufficient expertise to carry out a merits review
  • The Government to prepare a climate change plan every 5 years, to outline the proposals to cut emissions and include plans from major departments to adapt to climate change threats.
  • Improve forestry, carbon sequestration and carbon soil rights.
  • Calculation of the potential future liability arising from government actions and decisions, procurement and investments that will contribute to climate change.

Other Government initiatives

At present, the Victorian Government is developing a Victorian Climate Change Framework to be released in 2016. The Framework will be developed through community consultation and will support the Government's response to the Review. It is expected that the Government response to the Review and the Framework will be released in the second half of 2016.

In addition, the Government is establishing a new Marine and Coastal Act and revised environmental management plan. This is in response to its election commitment to integrate the management of coastal and marine environments, in a move to better protect and preserve them. The review will consider mitigating threats to the protection of Victoria’s coastal and marine environment, such as climate change.

The review is being undertaken by the Department of Environment, Land, Water and Planning with guidance from an expert panel, and input from stakeholders and the community. A consultation paper will be released and available for comment in mid-2016.

Following consultation, the expert panel will guide the drafting of the legislation and management arrangements for Parliament to consider in 2017.