Ongoing debate

This is my final blog from Australia, from tropical Queensland to be precise. It’s hard to believe, but throughout the six months I have been here, climate change has never been out of the news. Let’s have a look at the latest headlines, starting with the approval rating of Prime Minister Julia Gillard, which has hit an all-time low. She has brought it on herself by introducing a carbon tax in anticipation of an emissions trading scheme similar to the European model. Her days as Prime Minister appear to be numbered in a country where leadership of political parties is determined by the prevailing popularity of politicians in the polls. In the meantime, the introduction of the carbon tax does appear to be proceeding and the debate is focusing on the compensation program: how much money will the government give low-income households to compensate for the predicted rise in energy bills as a result of the carbon tax?
And then there are the death threats made to climate scientists at the Australian National University in Canberra. The university’s governing body subsequently moved them to secret locations in order to foil the threats. The university’s rector told the media that the scientists were severely affected by the threats. “Academics and scientists are actually really not equipped to be treated in this way. The concept that you would be threatened for your scientific views and work is something that is completely foreign to them.”
A new report was also published containing the latest insights into the rise in sea levels around Australia. Existing estimates are too low. Between 2000 and 2100, the average rise in sea level will be between 50cm and 1 meter rather than between 18cm and 76cm, as had been assumed till now. This has major consequences for low-lying cities such as Sydney and Melbourne. There are also huge regional variations. For instance, sea levels around Arnhem Land (named after the Dutch town by Dutch seafarers in the early 17th century) in northern Australia are rising by 7 mm per year, while the global average is 3.2 mm. The region’s Kakadu National Park, one of the world’s most beautiful tropical wetlands, will undergo a complete character change. From being a large fresh-water area, it will transform into a tidal salt-water area with completely different flora and fauna. This is bad news for the harmless fresh-water crocodiles (known to Aussies as ‘freshies’), which can still be found here, but good news for the highly dangerous salt-water crocodiles, which can grow up to 6 meters in length and are already present in large numbers.

CCS or algae?

Storing CO2 under the ground, which climate change specialists often refer to as CCS (carbon capture and storage), is seen as an important step on the road to a society in which we are no longer dependent on burning fossil fuels. The technology for removing CO2 from the air has existed for quite some time already (as evidenced by the addition of carbonic acid to drinks to make them fizzy). In a new generation of power plants, the CO2 could be removed before it ever has the chance to get into the atmosphere. But the transportation of the CO2 to the storage site, and the process of storing it, are more problematic. This is because the CO2 must be transported and stored in such a way that it cannot escape – ever again. A blow-out would not only defeat the whole object of storing the CO2 in the first place, it could also be very dangerous. A small leak from a pipeline in Berkel en Rodenrijs in 2008 received international attention, even though casualties were limited to a few ducks. But the worst case scenario at the back of everyone’s minds is the large-scale escape of CO2 from a lake in Cameroon in 1986 as a result of volcanic activity. The escaped gas suffocated 1700 people. Storage in thinly populated or uninhabited regions or under the sea bed would seem to be the best solution, but the disadvantage of this is that it requires long pipelines. Many trial projects are underway in both Europe and Australia, mostly still in their initial phase. In 2009, an EU directive was issued including regulations on the underground storage of CO2. These focused particularly on preventing any harmful environmental effects, especially over the longer term. The most important legal issue is liability. Who will be responsible if in the future, say 100 years from now, damage is caused despite all the security measures that have been taken? For American and Australian companies, this is now a cause for extreme caution in moving forward with CCS. In the EU, this problem has been solved by the automatic transfer of liability to the state after a certain period of time.
However, it now seems that new technology is becoming available which could be much more lucrative than CCS – that is recycling CO2. In Australia, a company has been set up which uses an industrial application of CO2 to cultivate algae and produce commodities such as cattle food, bio fuels and raw materials for medicines. I’m certainly curious about the legal issues that will arise from that!

Frack it!

A genuine revolution is underway in the energy sector, now that new methods are being used to extract ever larger amounts of natural gas. The gas, known as ‘coal seam gas’ or ‘shale gas’, is extracted from underground rocks by injecting them with large quantities of water and sand under high pressure. This causes the rocks to fracture, releasing the gas contained inside them. The process is called ‘fracking’. After it has been extracted, the gas can be used just like conventional natural gas. Large reserves of gas are available for extraction in this way, especially in Australia, Canada and the US, where more shale gas is now being extracted than conventional gas. There is probably a large amount of this type of gas in the Slochteren gas field in the Netherlands, too. The energy sector is embracing these new methods of production enthusiastically because gas is a much cleaner source of energy than coal, and it could therefore be used as a temporary replacement for coal until more sustainable forms of energy become available on a large scale. Burning natural gas produces much fewer pollutants than burning coal.

However, there is also growing criticism of this use of ‘clean’ fossil fuels. Natural gas is methane, a greenhouse gas that remains a hundred times more powerful than CO2 for twenty years after it is extracted. The problem is that a small percentage of this hyperactive greenhouse gas will always escape into the atmosphere during extraction, processing and transportation. In fact, American researchers have recently discovered that the negative effect of shale gas on the climate could be up to 20% greater than the effect of burning coal. And other environmental drawbacks are also being encountered. At the end of May, residents living near a shale gas extraction site in Arkansas in the USA made a damages claim for 4.75 billion US dollars against the Australian company BHP Billiton, which is responsible for the production of shale gas there. They claim that the extraction process has led to the pollution of ground and surface water, and even to an earthquake with a magnitude of 4.7 on the Richter scale. Shell, which extracts coal seam gas in Queensland in Australia, recently had to deal with a gas and water explosion. Various governments are now being persuaded to tighten up the environmental regulations on extracting shale gas. Although the first results of this seem to indicate that the emission of methane into the atmosphere can be reduced, it is still unclear whether this can prevent all the damaging effects. So it remains to be seen whether the initial euphoria over these new, clean forms of fossil energy will prove justified.

Coastal adaptation

Around the world, coastal defenses are an integral part of climate policy. The risk of flooding is increasing due to a number of factors – the rising sea level (which in the Netherlands is being exacerbated by subsidence), the increasing intensity of storms and rising water levels in rivers. The Dutch parliament is currently looking at proposals for a new Delta Law, which is designed to address these increasing dangers. This law, as well as the legislation that already exists, is among the most advanced in the world. But of course, that is because half of our country is susceptible to flooding, either from the sea or from rivers.
Unlike in the Netherlands, most of the coastal areas around the cities of southern and eastern Australia are in the hands of private landowners. These ‘ocean view properties’ are spectacular, and extremely expensive. That makes it difficult for the government to build coastal defenses. Many interesting legal cases are already underway in this area which will clarify how this aspect of climate law will be put into force in the future. Essentially, the law states that the authorities must create a coastal protection area where they can make provisions for the effects of climate change. This policy will determine whether projects in coastal areas are allowed to go ahead. But what should be done in cases where houses are under threat from the sea?
One of the most famous cases is that of a rich landowner in Byron Bay to the south of Brisbane. The government had decided not to defend a section of the coastal area against the increased risk of erosion, but rather to let nature take its course as a part of a wider plan that involved protecting other, more important areas. The owner of the land decided to take measures to protect the land from erosion himself by renewing the old coastal defenses. The government denied him permission to do this, for the same reason as it had decided not to do so itself. When it looked as if the dispute would be settled in favor of the landowner, the government decided to renew the coastal defenses after all. However, it is clear that this is only a temporary measure until the next storm comes along. There is no prospect of a definitive solution, not least because land owners are opposing the construction of new coastal defenses for the future. After all, this would mean their land would no longer be located directly on the coast, and so it would be worth considerably less...

Cycling in Sydney

Cycling to work in Sydney is only recommended if you get a real kick out of danger and don’t really mind whether you arrive in one piece or not. Basically it involves dicing with death. In an attempt to reduce greenhouse gas emissions and relieve the pressure on Sydney’s overloaded traffic infrastructure, the government is trying to encourage people to take up cycling. Policy papers are being drawn up, short sections of cycle paths are being constructed here and there, and they have even produced a very nice plan of the city which shows the location of all those little pieces of cycle path. Many companies have installed showers for employees who cycle to work and want to shower and change before starting work, because cyclists here generally use racing bikes and wear cycling gear.

But it’s a risky undertaking. Those stretches of cycle path begin and end abruptly. When you do come across one, you’ll be happy that you can cycle safely for a while, but then when you suddenly reach the end of that particular stretch of cycle path, you’ll have to work out how to cross five busy lanes of traffic so you can continue your journey on the correct side of the road. Many roads in the city center are full to capacity. There is limited space, with as many lanes of traffic are squeezed in as possible. Basically, there’s no room for cyclists, and if you decide simply to ‘make room’, the best you can expect is to be hooted at by irritated motorists. In the worst case, car drivers will simply take back the space that you are occupying and run you off the road. Motorists tend to get angry with cyclists, which is understandable to some extent when you see how cyclists behave on the road. They are mostly tough young guys (think: broad-shouldered, tattooed Australian surfers). They use the footpath to avoid queues of traffic, cycle diagonally over intersections, ride straight through red stoplights – basically, they ignore all the rules of the road. And even the more cautious cyclists – and I count myself among them – often choose to cycle on the footpath. That is not allowed either, but in reality the police tolerate it because they understand that it is safer than cycling on the road.

Sydney still has a long way to go before cycling becomes as easy and as normal as it is in the Netherlands. But there is one similarity: on the very first day I used my bike here, it got stolen...

Do you know today's Bush Fire Danger Rating in your area?

This question jumped out at me from a large roadside billboard while I was heading down to the south coast of New South Wales for a weekend break. Hmm... Come to think of it, just a few kilometers back I had seen a sign, divided into a number of colored areas ranging from green to red, with an arrow at the bottom. Now which area had that arrow been pointing to?
Australia has recently experienced a severe drought, which lasted for many years and resulted in a huge number of major bush fires. The most notorious of these were the Black Saturday Bush Fires in Victoria, on 6 February 2009, which resulted in 173 deaths. Bush fires are increasing in number and intensity, as a result of climate change. For this reason, a comprehensive adaptation program has been developed to help people be better prepared for these fires. Most people know very well whether they live in a bush fire prone area. In such areas, there are many ways of finding out the day’s Bush Fire Danger Rating (varying from Low-Moderate to Extreme or even Catastrophic). There is a Bush Fire Household Assessment Tool that you can use in the event of a fire to identify the best course of action to take in your own personal situation: Leave Early, or Stay and Defend. There is a Bush Fire Survival Plan giving details of what you need to do to better protect your house against a fire. The Plan comes complete with a “prepare your property” checklist.
A comprehensive government program recently completed in NSW concluded that all schools should be made fire safe through the implementation of a series of measures, depending on the situation on the ground. This might involve clearing vegetation from around buildings, creating or improving escape routes, and making buildings more fire resistant. In one case, where the risk remained high despite these measures, a helicopter was also purchased to evacuate the children in the event of a fire. The fire services also carry out regular hazard reduction burns to reduce the intensity of “genuine” bush fires.
Australia is trying to live with bush fires. In the Netherlands, a period of drought like the present one is exceptional, and measures such as these are hopefully unnecessary.

Connectivity

26 April, 2011

Scientists are seeing the first effects of climate change primarily in natural phenomena. Migratory birds are returning earlier or they do not migrate at all. Butterflies are being seen in completely new habitats. Plants are growing at higher altitudes. Biologists investigating these phenomena conclude that many species will die out simply because there is a limit to their ability to adapt. A bird may return from its migration early, but if the caterpillar which is its main food source does not appear as expected, then the bird will not survive. And mountains are only so tall: plants cannot grow beyond the summit! Scientists are impressing upon policymakers the need for large, interlinked nature reserves. This will give plants and animals space to migrate to new, suitable habitats.

'Connectivity' is a hot topic in Australia, as it is in many other countries. Several initiatives have been put forward to create natural corridors between current nature preserves crossing through agricultural areas and towns and cities. By developing clever projects with the close involvement of private parties and local communities, natural corridors stretching for thousands of kilometers can be created, such as the 'great eastern ranges corridor' that stretches along the entire eastern Australian coast. Despite the call for greater connectivity, the current cabinet in the Netherlands is phasing out the 'ecological main structure', mainly to save money and because of opposition from the agricultural sector. The 'great eastern ranges project' does not have many financial resources. Rather, a local, project-based approach is used that offers small financial incentives to emphasize the ecological and economic benefits and to encourage landowners to get on board. The way in which the Netherlands' policy on ecology is currently being communicated and implemented pales into insignificance when one compares it with the enthusiasm and passion displayed by Australian politicians who are active in this policy area at the state and local levels.

Political climate change

6 April, 2011

Protests about environmental policy – when did that last happen? In fact, last weekend in Sydney, there were two demonstrations – in one park they were demonstrating in favor of the climate change levy, while in another there were protests against it. It seems you can’t turn on the television without seeing a program about carbon taxes. Even I’m getting a bit tired of it!

The opponents of environmental measures come across as particularly shrill. Right-wing politicians speak of ‘human-induced political climate change as a result of carbon taxes’. The left, meanwhile, like to make references to Europe, pointing out that measures to tackle climate change have led to more jobs and faster technological progress there. One important difference with Europe is that Australia actually has vast reserves of coal. This has meant that Australians have never had to give much serious consideration to other sources of energy. Australian consumers can’t just tick a box to choose ‘green energy’ from their energy supplier, for example.

Even so, Australia, with all its sun, wind and sea, has unparalleled potential for generating sustainable energy, although there’s still a long way to go before that potential is realized. The government is seeking to encourage people to generate sustainable energy – by reducing the price of solar panels for private individuals for example, but so far, the impact has been limited, partly because there aren't enough people with the right skills to install the solar panels... “Will workers who lose their jobs in the coal industry be offered retraining?” was one question I heard being put to a Green politician by a more skeptical participant in a television debate. She said they would be.

However, a more relevant question is actually whether a gradual transition from coal to green energy in Australia will mean that all Australia’s coal will stay in the ground. I’m not so sure about that. China has an enormous appetite for coal. Even now, at least one coal-fired power station a week is being opened there – even though these are some of the most modern (and least polluting) in the world. China consumes more coal than the US, Europe and Japan put together. The World Bank announced this week that it would no longer provide finance for coal-fired power plants except in the very poorest nations. That is an important step, although it will not worry countries such as India and China. They are now engaged in a race to buy up Australian coal mines for astronomical sums of money. The mineworkers won’t have to worry about unemployment any time soon, then.

Historic swing

28 March, 2011

Elections were held last Saturday for the parliament of New South Wales, the state where one third of the Australian population live (and of this third, more than half live in Sydney). These elections are crucial because the vast majority of policy issues, including environmental policy, are decided at the state level. We watched TV every night, astonished at the political ads that consisted of little more than insinuations and slurs. "What else does he have to answer for?" and other sentences along these lines. And hardly any information at all about the policy intentions of the ad's sponsor.

The elections resulted in a historic loss for the incumbent Labor government. Never before in the history of Australia did so many districts switch their electoral preference (of the 50 Labor seats in the 93-seat parliament, there are now only 17 left). Labor had been in power here for 16 consecutive years. Until today. Wiped out, mainly through a series of internal disputes and scandals, including bribery scandals involving major projects. For many voters, the Labor coalition had become symbolic for deals in which project developers filled their pockets and for the unabated rise in the cost of living for ordinary people.

Opinion polls have shown that the climate tax proposed by the prime minister (also Labor) at the federal level, which I wrote about previously, played a crucial role in Labor's monumental defeat in New South Wales. The coalition of the Liberal Party and National Party used this convenient little 'present' to underscore Labor's role in the tenacious inflationary trends plaguing the country. High energy prices, layoffs, a real campaign of fear mongering on the climate tax issue. There were some who voiced dissent, of course, basing their opinions on lessons learned from experiences in Europe. They pointed out the number of jobs created in Germany because of the government's commitment to renewable energy. However, this small voice of reason was drowned out completely by the bombastic rhetoric used by politicians down under.

Climate tax about-face

10 March, 2011

The news this past week in Australia has been dominated by the government's plans to introduce a climate tax. The proposal has provoked something of a storm. Politics and the media here in Australia are rather more polarized and populist compared to the Netherlands. Scenes that you might expect from Fox News are part and parcel of Australian TV's daily offering. Opposition leader Tony Abbott is milking all the drama he can out of the situation, even in parliament. He says he will fight the carbon tax every minute of every day of every month of his political life. The Prime Minister, Julia Gillard, has been called a liar by a TV journalist; he came up with a nickname for her that I'm sure he thinks is really funny: “Juliar Gillard”.

What's going on? The Labor government of Australia wants to assign a monetary value to greenhouse gas emissions as a financial incentive to reduce emissions of these compounds. A system of emissions trading was chosen for this purpose. We've been using a similar system in the EU since 2005. Businesses must see to it that they have enough emission trading rights. If they have a surplus of rights due to the introduction of energy-efficiency measures, for example, then they can sell them. Companies can also earn tradable rights by investing in clean energy in other countries (e.g. by financing a hydroelectric plant in a developing country). This makes reducing greenhouse gas emissions interesting from a financial point of view. Emissions trading systems like these are very complex, however, and it takes time to get them set up. This is why it has been decided to introduce a fixed price for CO2 emissions until 2015, and to let the market determine the price thereafter. The system will initially function as a fixed fee, or tax. All this has been proposed even though Gillard promised in her election campaign last year that she would tackle climate change, but not through fiscal means...

Sydney, 22 February 2011

At the end of my three-year term as vice dean of Tilburg Law School on 1 January 2011, my family and I headed down under for a six-month research sabbatical at the University of Sydney, at the Australian Centre for Climate and Environmental Law (ACCEL) to be precise. In the weeks we have been here, this country has been hit by its worst-ever floods, the worst cyclone in living memory, a record-breaking heat wave and fierce forest fires. The impact of climate change is huge here, and climate law and policy are consequently the focus of a great deal of attention. There is even a separate Ministry of Climate Change and Energy Efficiency, which in itself is an indication that the importance the government attaches to this theme is quite different from that in the Netherlands. Yet there is still a great deal to be done. Unlike in the Netherlands, for instance, a start is only just being made on earmarking flood areas along major rivers. It took the severe flooding in Queensland in January to get that far. Moreover, Australia holds huge reserves of coal, which is complicating the debate on the transition to sustainable energy.

Over the next few months, together with my new ACCEL colleagues, I will concentrate on the new, fascinating and rapidly-evolving legal discipline of climate law. I shall focus on adaptation, in other words adapting society to the changing climate. In order to be able to deal with the changes we will face over the next few decades, initial signs of which are already visible, far-reaching global measures are required which involve many legal issues. This blog will look at these issues in more detail over the next few months.