Biobanking in New South Wales: Legal issues in the design and implementation of a biodiversity offsets and banking scheme

Environmental and Planning Law Journal

Volumn 23, Issue 4, 2006, Pages 298-308

  Curnow, Paul ^a   Fitz Gerald, Louisa ^a  

^a BAKER AND MCKENZIE LLP   (United States)

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[No Author keywords available]

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EID: 42549117088     PISSN: 0813300X     EISSN: None     Source Type: Journal    
DOI: None     Document Type: Article

References (52)

1. This scheme, which commenced on 1 January 2003, aims to reduce greenhouse gas emissions associated with the production and use of electricity. It establishes annual State-wide greenhouse gas reduction targets and requires electricity retailers and certain other parties to meet mandatory benchmarks, either through actual emissions reductions or the purchase of emissions abatement "credits" (NGACs) from other participating entities.
2. This scheme was established by the Renewable Energy (Electricity) Act 2000 (NSW), and requires the generation of 9,500 gigawatt hours of extra renewable electricity per year by 2010. Electricity retailers are required to source a certain amount of energy from renewable sources, an obligation which they can either satisfy directly, or by purchasing Renewable Energy Certificates (RECs) from other participating entities.
3. The National Market-Based Instruments Pilot Program is a Federal, State and Territory initiative to explore the potential to use market-based tools for environmental management. Projects funded under Round 1 of the program, which span 21 priority regions, have so far received $5 million in funding.
4. "Amber light" areas have medium biodiversity value, while "red light" areas are of high biodiversity value or are a target area for restoration.
5. Under s 127ZG of the Bill, the Minister may direct the Director-General of DEC to issue a biobanking statement in respect of any development that is a project to which Pt 3A of the Environmental Planning and Assessment Act 1979 (NSW) applies, even if the development does not maintain or improve biodiversity values.
6. New South Wales, Department of Environment and Conservation, BioBanking - A Biodiversity Offsets and Banking Scheme: Conserving and Restoring Biodiversity in NSW (working paper, 2006) p 8.
7. New South Wales, Department of Environment and Conservation, n 6, 32-34.
8. New South Wales, Department of Environment and Conservation, n 6, pp 5-8.
9. New South Wales, Department of Environment and Conservation, n 6, p 7.
10. New South Wales, Department of Environment and Conservation, n 6, p 19.
11. Wilcove D and Lee J, "Using Economic and Regulatory Incentives to Restore Endangered Species: Lessons Learned from Three New Programs" (2004) 18 (3) Conservation Biology 639 at 641.
12. Bayon R, Making Environmental Markets Work: Lessons from Early Experience with Sulphur, Carbon, Wetlands and Other Related Markets (Report prepared for the Katoomba Group meeting in Locarno, Switzerland, 2003) pp 12-13.
13. United States General Accounting Office, cited in Bayon, n 12, p 13.
14. Emerton L, Bishop J and Lee T, Sustainable Financing of Protected Areas: A Global Review of Challenges and Options (IUCN, Gland, 2006).
15. United States Environmental Protection Agency, Mitigation Banking Factsheet available online at http://www.epa.gov/owow/wetlands/facts/fact16.html (viewed 19 July 2006).
16. United States Department of the Interior Fish and Wildlife Service, Guidance for the Establishment, Use and Operation of Conservation Banks (May 2003) available online at http://www.fws.gov/Endangered/policies/conservation-banking.pdf (viewed 19 July 2006).
17. New South Wales, Department of Environment and Conservation, n 6, p 15.
18. Fox J and Nino-Murcia A, "Status of Species Conservation Banking in the United States" (2005) 19(4) Conservation Biology 996 for a review of the financial status of conservation banking measures.
19. Victoria, Department of Sustainability and the Environment, BushTender Trial, available online at http://www.dse.vic.gov.au (search "BushTender trial", viewed 19 July 2006).
20. Victoria, Department of Sustainability and the Environment, n 18.
21. Victoria, Department of Sustainability and the Environment, BushBroker - A Native Vegetation Credit Registration and Trading Scheme available online at http://www.dse.vic.gov.au (viewed 19 July 2006).
22. New South Wales, Department of Environment and Conservation, n 6, p 17.
23. Australia, National Action Plan for Salinity and Water Quality, National Market-Based Instruments Pilot Program available online at http://www.napswq.gov.au/mbi/index.html (viewed 19 July 2006).
24. An auction-based system being piloted on Kangaroo Island, South Australia, which aims to increase the cost effectiveness of funds for private on-ground natural resource management actions distributed by the Onkaparinga Catchment Water Management Board.
25. An auction mechanism to encourage private landholders to manage salinity, water quality, water quantity and biodiversity on their land.
26. A fund to leverage private sector investment to deliver natural resource management outcomes and private returns to investors.
27. Forestry sequestration refers to the uptake and storage of carbon in trees and plants, thereby preventing it from collecting in the atmosphere as carbon dioxide. Forestry sequestration is one accepted method for the creation of "abatement credits" under the New South Wales Greenhouse Gas Abatement Scheme.
28. McCarthy M, Parris KM, van der Ree R, McDonnell MJ, Burgman MA, Williams NSG, McLean N, Harper MJ, Meyer R, Hahs A and Coates T, "The Habitat Hectares Approach to Vegetation Assessment: An Evaluation and Suggestions for Improvement" (2004) 5(1) Ecological Management and Restoration 24 at 24-25.
29. New South Wales, Department of Land and Water Conservation, Offsets, Salinity and Native Vegetation: Discussion Paper (July 2001).
30. Salzman J and Ruhl JB, "Currencies and the Commodification of Environmental Law" (2000) 53 Stanford Law Review 607.
31. Salzman and Ruhl, n 29 at 637.
32. New South Wales, Department of Environment and Conservation, n 6, p 10.
33. New South Wales State Wetland Advisory Committee, Compensatory Wetlands: A Discussion Paper Under the NSW Wetlands Management Policy (November 2002) p 16.
34. New South Wales State Wetland Advisory Committee, n 32, p 13.
35. Australian Greenhouse Office, Planning Forest Sink Projects: A Guide to Legal, Taxation and Contractual Issues (March 2005).
36. Threatened Species Conservation Amendment (Biodiversity Banking) Bill 2006 (NSW), s 127C.
37. Threatened Species Conservation Amendment (Biodiversity Banking) Bill 2006 (NSW), s 127Q.
38. Threatened Species Conservation Amendment (Biodiversity Banking) Bill 2006 (NSW), s 127I.
39. Threatened Species Conservation Amendment (Biodiversity Banking) Bill 2006 (NSW), s 127K.
40. Victoria, Department of Sustainability and Environment, n 20.
41. Environmental Law Institute, Banks and Fees: The Status of Off-Site Wetland Mitigation in the United States (ELI, 2002).
42. Australian Greenhouse Office, n 34.
43. Australian Greenhouse Office, n 34, for a discussion on the application of native title to forestry sequestration projects and carbon sequestration rights.
44. Threatened Species Conservation Amendment (Biodiversity Banking) Bill 2006 (NSW), s 127S.
45. McKenney B, Environmental Offset Policies, Principles and Methods: A Review of Selected Legislative Frameworks (Biodiversity Neutral Initiative, 2006) p 40.
46. European Union, Habitats Directive 92/43/EEC.
47. McKenney, n 44, p 40.
48. McKenney, n 44, p 40.
49. McKenney, n 44.
50. Threatened Species Conservation Amendment (Biodiversity Banking) Bill 2006 (NSW), s 127T.
51. Threatened Species Conservation Amendment (Biodiversity Banking) Bill 2006 (NSW), s 127Z.
52. Threatened Species Conservation Amendment (Biodiversity Banking) Bill 2006 (NSW), ss 127ZN and 127ZR.