The Kyoto Protocol, carbon sinks and integrated environmental regulation: An Australian perspective

Environmental and Planning Law Journal

Volumn 19, Issue 2, 2002, Pages 109-130

  Jones, David ^a  

^a BAKER AND MCKENZIE LLP   (United States)

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EID: 84883563891     PISSN: 0813300X     EISSN: None     Source Type: Journal    
DOI: None     Document Type: Article

References (146)

1. United Nations Framework Convention on Climate Change, opened for signature 4 June 1992, (21 March 1994) (UNFCCC).
2. Secretariat, United Nations Framework Convention on Climate Change, Status of Ratification of the Convention and Its Kyoto Protocol, FCCC/CP/2001/INF.3, 28 October 2001 (Conference of the Parties, Seventh Session, Marrakech, 29 October to 9 November 2001).
3. Michael Grubb, Christiaan Vrolijk and Duncan Brack, The Kyoto Protocol: A Guide and Assessment (1999) 61.
4. Kyoto Protocol to the United Nations Framework Convention on Climate Change, opened for signature 16 March 1998, (Not yet in force) (Kyoto Protocol).
5. Kyoto Protocol, Art 3.1 and 3.7. It has always been envisaged that a number of Commitment Periods will be set under the Protocol, at the end of which participating parties will be required to have met their targets for emission reductions (which will gradually increase over time, compared with 1990 emissions).
6. See Australian Greenhouse Office, National Greenhouse Gas Inventory 1999 (2001) Commonwealth of Australia, Canberra. This records 1999 emission levels as being 17.4 per cent above 1990 levels. Taking into account the emissions consequences of land use change could reduce this to around seven per cent, but the figures are only a general guide anyway, as there are factors included in Australia's inventory (prepared in accordance with UNFCCC obligations) that would not be counted in the official targets under the Kyoto Protocol.
7. Kyoto Protocol, Art 25.1
8. Michael Grubb, Christiaan Vrolijk and Duncan Brack, The Kyoto Protocol: A Guide and Assessment (1999) 31.
9. Michael Grubb, Christiaan Vrolijk and Duncan Brack, The Kyoto Protocol: A Guide and Assessment (1999) 31.
10. Michael Grubb, Christiaan Vrolijk and Duncan Brack, The Kyoto Protocol: A Guide and Assessment (1999) 31.
11. Secretariat, United Nations Framework Convention on Climate Change, Status of Ratification of the Convention and Its Kyoto Protocol, FCCC/CP/2001/INF.3, 28 October 2001 (Conference of the Parties, Seventh Session, Marrakech, 29 October to 9 November 2001).
12. At the time of writing, as reflected in UNFCCC, "Marrakesh Accords and the Marrakesh Declaration (COP 7)-Advance unedited version, " (10/11/01), website accessed 12/11/01:
13. UNFCCC Secretariat, Governments Ready to Ratify Kyoto Protocol, Press Release, (10 November 2001).
14. The member countries of this group being the US, Australia, Japan, Canada, Switzerland, Russia, Norway, Austria, New Zealand, Iceland and Ukraine.
15. Rachel Baird, "Kyoto Protocol Sunk" (2000) 3 Australian Environmental Law News 39, 40.
16. Reuters, 'EU: Support Rising for Climate Deal Without the US', New York Times, (as reported in Climate-L Digest for April 14 2001-), 9 April 2001.
17. Which ran from 16 to 27 July 2001.
18. M Hinchy, BS Fisher and B Graham, Emissions Trading in Australia: Developing a Framework, (1998) ABARE Research Report 98.1, Canberra, 2.
19. J Dales, Pollution, Property, Prices (1968).
20. Who have excess permits for example, because they can reduce their source emissions more cheaply, or already had low emissions and were issued with more permits than they needed. For an expansion on the way these schemes are intended to work, see M Hinchy, BS Fisher and B Graham, Emissions Trading in Australia: Developing a Framework, (1998) ABARE Research Report 98.1, Canberra.
21. Joanna Depledge, Prepared under contract to UNFCCC, Tracing the Origins of the Kyoto Protocol: An Article-by-Article Textual History, FCCC/TP/2000/2, 25 November 2000 para 380 to 395.
22. The term "sequestration" in this context, referring to the process by which trees capture and store carbon from the atmosphere.
23. 2, simply due to this greatly increased capacity for contributing to greenhouse warming.
24. T Jackson, K Begg and S Parkinson, "The Language of Flexibility and the Flexibility of Language" (1998) 10(3/4) International Journal of Environment and Pollution (special issue on "EU Climate Policy: The European Commission Policy/Research Interface for Kyoto and Beyond") 462, 469.
25. The Climate Change Secretariat is established, and its powers and reporting obligations of participating countries are set out in, Articles 4 and 12 of the UNFCCC.
26. Kyoto Protocol, Art 7. This is largely a continuation of the UNFCCC reporting obligations that have been in place for a number of years.
27. Kyoto Protocol, Art 8.
28. These mechanisms are being explored in more detail in the author's current PhD research and upcoming papers by him.
29. Kyoto Protocol, Art 12.3(b).
30. Kyoto Protocol, Art 12.5(a).
31. Kyoto Protocol, Art 12.5(c).
32. Kyoto Protocol, Art 12.10.
33. Joanna Depledge, Prepared under contract to UNFCCC, Tracing the Origins of the Kyoto Protocol: An Article-by-Article Textual History, FCCC/TP/2000/2, 25 November 2000 para 295 to 306. Note also that if the activity were carried out in a developing country, it would not be Joint Implementation, but CDM.
34. Reuters News Service, "Dutch signs $31.5 million emission trade deal with Eastern Europe, " (22 April 2001) The Carbon Trader, , accessed 24 April 2001.
35. Kyoto Protocol, Art 6.1.
36. See "The First Contract-Based Carbon Trades" below.
37. Kyoto Protocol, Art 6.3.
38. Kyoto Protocol, Art 4(1).
39. Kyoto Protocol, Art 4(5). This mechanism will be quite complicated in operation and has the potential for significant use. However, it is only mentioned briefly here, given limited scope of this article and its focus more on domestic matters.
40. Christopher Brack, "Risk and Uncertainty in a Forest Carbon Sequestration Project" (Paper presented at the IEA Bioenergy Task 38 Workshop: Carbon accounting and emissions trading related to bioenergy, wood products and carbon sequestration, Canberra, 26-30 March 2001). The Australian National Carbon Accounting System (NCAS) is being developed by the Australian Greenhouse Office (discussed below) and is extremely complex, with much of its accuracy depending on gathering and inputting significant amounts of raw field data into the computer models. See GP Richards, "The FullCAM Carbon Accounting Model: Development, Calibration and Implementation" (Paper presented as above) for a more detailed explanation of this system.
41. For a review of the history of the IPCC and its development over the last 10 years, see Shardul Agrawala, "Context and Early Origins of the Intergovernmental Panel on Climate Change" (1998) 39 Climatic Change 605.
42. Ann Hamblin, "Sustainability Indicators: Measuring progress towards sustainability" in Jackie Venning and John Higgins (ed), Towards Sustainability-Emerging systems for informing sustainable development (2001) 142.
43. See Gregory Rose, "A compliance system for the Kyoto Protocol" (2001) 7(2) The University of New South Wales Law Journal-Forum (The Kyoto Protocol: Politics and Practicalities) 37. Note also that significant progress towards agreement on compliance mechanisms was achieved at COP 7. The draft text of these decisions can be seen in the UNFCCC, "Marrakesh Accords and the Marrakesh Declaration (COP 7)-Advance unedited version, " (10/11/01) , accessed 12/11/01, Part L Decision-/CP.7
44. United Nations Framework Convention on Climate Change, Review of the Implementation of Commitments and of other Provisions of the Convention: Decision 5/CP.6 Implementation of the Buenos Aires Plan of Action, FCCC/CP/2001/L.7, 24 July 2001 (Conference of the Parties, Sixth Session part 2, Bonn, 16-27 July 2001), Annex Pt VI, Item 1(5).
45. United Nations Framework Convention on Climate Change, Review of the Implementation of Commitments and of other Provisions of the Convention: Decision 5/CP.6 Implementation of the Buenos Aires Plan of Action, FCCC/CP/2001/L.7, 24 July 2001 (Conference of the Parties, Sixth Session part 2, Bonn, 16-27 July 2001), Annex Pt VI, Item 1(5).
46. See especially Robert T Watson et al (ed), Land Use, Land-Use Change, and Forestry (2000) Special Report of the Intergovernmental Panel on Climate Change.
47. United Nations Framework Convention on Climate Change, Review of the Implementation of Commitments and of other Provisions of the Convention: Decision 5/CP.6 Implementation of the Buenos Aires Plan of Action, FCCC/CP/2001/L.7, 24 July 2001 (Conference of the Parties, Sixth Session part 2, Bonn, 16-27 July 2001), Annex Pt VII, Item 1(e).
48. See for example Kenneth M Chomitz, "Evaluating carbon offsets from forestry and energy projects: how do they compare?" (World Bank Development Research Group, March 2000) 18.
49. Kyoto Protocol, Art 3.7.
50. Clive Hamilton, Running From the Storm-the development of climate change policy in Australia (2001).
51. Australian Greenhouse Office, National Greenhouse Gas Inventory: Land Use Change and Forestry Sector 1990-1997, (1999). It should also be noted that Australia is the only Annex I country that had net emissions from land clearing at 1990, making its advantage over other parties under this clause even more significant.
52. Clive Hamilton, Running From the Storm-the development of climate change policy in Australia (2001).
53. United Nations Framework Convention on Climate Change, Draft Decision-/CP.6 proposed by the Co-Chairmen of the negotiating group: Land use, land-use change and forestry, FCCC/CP/2001/L.11/Rev1, 27 July 2001 (Conference of the Parties, Sixth Session part 2, Bonn, 16-27 July 2001).
54. At the time of writing, as reflected in UNFCCC, "Marrakesh Accords and the Marrakesh Declaration (COP 7)-Advance unedited version, " (10/11/01): , accessed 12/11/01, Annex to Draft Decision-/CMP.1
55. Annex part E to Draft Decision-/CMP.1
56. United Nations Framework Convention on Climate Change, Review of the Implementation of Commitments and of other Provisions of the Convention: Decision 5/CP.6 Implementation of the Buenos Aires Plan of Action, FCCC/CP/2001/L.7, 24 July 2001 (Conference of the Parties, Sixth Session pt 2, Bonn, 16-27 July 2001), Annex Pt VII, Item 2(4).
57. United Nations Framework Convention on Climate Change, Annex Pt VII, Item 2(5), (6) and Appendix Z.
58. While these have not been finally determined they are likely to include for example, very "hands-on" practices on small regional or even individual tree levels, that are difficult in Australia due to the inaccessible nature of so many of our forests.
59. Robert T Watson et al (ed), Land Use, Land-Use Change, and Forestry (2000) Special Report of the Intergovernmental Panel on Climate Change, 198.
60. Robert T Watson et al (ed), Land Use, Land-Use Change, and Forestry (2000) Special Report of the Intergovernmental Panel on Climate Change, 198.
61. Raúl Estrada-Oyuela, "First Approaches and Unanswered Questions" in J Goldemberg (ed), Issues and Options: The Clean Development Mechanism (1998).
62. United Nations Framework Convention on Climate Change, Review of the Implementation of Commitments and of other Provisions of the Convention: Decision 5/CP.6 Implementation of the Buenos Aires Plan of Action, FCCC/CP/2001/L.7, 24 July 2001 (Conference of the Parties, Sixth Session pt 2, Bonn, 16-27 July 2001), Annex Pt VI, Item 3(8).
63. United Nations Framework Convention on Climate Change, Annex Pt VII, Item 2(8).
64. United Nations Framework Convention on Climate Change, Annex Pt VI, Items 2(2) and 3(2).
65. As discussed above, this requirement to conform with the Protocol only applies where the emissions reductions generated are intended to be accredited within the Protocol mechanisms. Australia would of course be free to design any other scheme that it wished to achieve emissions reductions that were only recognised within that domestic scheme.
66. Many of these programs and further details and background relating to them can be viewed at the AGO website, or obtained directly from the AGO.
67. National Greenhouse Steering Committee, National Greenhouse Response Strategy, (1992).
68. Australian Greenhouse Office, The National Greenhouse Strategy: Strategic Framework for Advancing Australia's Greenhouse Response, (1998).
69. Commonwealth of Australia, Parliamentary Debates, House of Representatives, 20 November 1997, 10921 (John Howard, Prime Minister).
70. A House of Representatives Committee now known as the Standing Committee on Communications, Transport and the Arts.
71. House of Representatives Standing Committee on Environment Recreation and the Arts, Regulatory Arrangements for Trading in Greenhouse Gas Emissions (Interim Report), prepared for Commonwealth of Australia, (17 August 1998).
72. Minister for the Environment Robert Hill, Government Response to Standing Committee Report on "Regulatory Arrangements for Trading in Greenhouse Gas Emissions", (30 March 1999).
73. These discussion papers and most of the public submissions received in relation to them can be viewed at the AGO website, or obtained directly from the AGO.
74. Australian Greenhouse Office, National Emissions Trading: issuing the permits (1999) (Discussion Paper Number 2), Commonwealth of Australia, Canberra, 14.
75. Australian Greenhouse Office, National Emissions Trading: establishing the boundaries (1999) (Discussion Paper Number 1), Commonwealth of Australia, Canberra.
76. Australian Greenhouse Office, National Emissions Trading: issuing the permits (1999) (Discussion Paper Number 2), Commonwealth of Australia, Canberra.
77. A concern that would be unlikely to be as clearly expressed if this paper had been issued now, after the outcome of COP 7 is known and with ratification commitments of many of the major emitters secured.
78. Australian Greenhouse Office, National Emissions Trading: crediting the carbon (1999) (Discussion Paper Number 3), Commonwealth of Australia, Canberra.
79. Again, it is likely that the tenor of this paper would be quite different following the latest COP decisions on sink structures and scope.
80. 2-e.
81. Australian Greenhouse Office, National Emissions Trading: designing the market (1999) (Discussion Paper Number 4), Commonwealth of Australia, Canberra.
82. So that participants are given credits to trade when the achieve reductions below their current levels.
83. Where a particular maximum level is set and participants are allocated a "share of the pie" in permits, which they can then sell if their emissions are below the levels that these permits would allow them to emit, or buy if their emissions are greater than the permits would allow.
84. Senator Nick Minchin (Federal Industry Science and Resources Minister), Minchin Releases Details of Greenhouse Commitments to Australian Industry, Press Release, No 00/397 (6 September 2000).
85. Australian Greenhouse Office, Greenhouse Sinks and the Kyoto Protocol; An issues paper, (2000) Commonwealth of Australia, Canberra.
86. Ministerial Council on Greenhouse, Encouraging Early Greenhouse Abatement Action; A public consultation paper, (November 2000) Commonwealth of Australia, Canberra
87. Australian Greenhouse Office, Government Response to "The Heat is On: Australia's Greenhouse Future", prepared for Canberra Commonwealth of Australia, (July 2001).
88. Senate Environment Communications Information Technology and the Arts References Committee, The Heat is On: Australia's Greenhouse Future, (7 November 2000).
89. Senate Environment Communications Information Technology and the Arts References Committee, Recommendation 96.
90. Senate Environment Communications Information Technology and the Arts References Committee, p 83. A position which will clearly vary with political whims and parties, but is nevertheless useful in gaining an understanding of the political climate surrounding these policy developments.
91. Joint Standing Committee on Treaties, The Kyoto Protocol-Discussion Paper, Report 38, (April 2001).
92. Kerry Bartlett MP (Committee Chairman), The Kyoto Protocol on Climate Change-Sta tus of the Inquiry, Press Release, (27 September 2001). While labour had committed to ratification, the position of the re-elected Liberal Government is still unclear.
93. Greater details on the programs examined in this section can be viewed on the AGO website, which can be found at . A number of clarifying points for particular elements of the programs were obtained during telephone conversations between the author and AGO employees, from May to July 2001.
94. For a list of the type of projects in which the IGPO has been involved, see website at: , accessed 12/11/01.
95. Renewable Energy (Electricity) Act 2000 (Cth). and Renewable Energy (Electricity)(Charge) Act 2000 (Cth).
96. Confirmed by Clare Wynter , Inquiry Re ACT Policy/Legislation on Greenhouse, email (30 October 2001).
97. Forestry Rights Registration Act 1990 (Tas) s 3.
98. Australian Softwood Forests Pty Limited v Attorney General (NSW) (1981) 148 CLR 121 at 130.
99. Generally covering rights to enter land, establish and maintain plantations, and harvest and take away the timber at a later date, along with associated rights for clearing for fire breaks, building roads and the like.
100. Conveyancing Act 1919 (NSW), ss 69 and 88AB.
101. Amending the Conveyancing Act 1919.
102. Conveyancing Act 1919 (NSW), s 87A. Note the choice of 1990, which is the relatively arbitrary year that has been selected under the Kyoto Protocol as the comparison against which future reductions in greenhouse gas emissions will be calculated.
103. For a more detailed analysis of the peculiar nature of these rights and the way they have been dealt with under NSW legislation, see Peter Butt, "Carbon Sequestration Rights-a new interest in land?" (1999) 73(April) The Australian Law Journal 235.
104. Conveyancing Act 1919 (NSW), s 88
105. Energy Services Corporations Act 1995 (NSW) s 6(3A).
106. Energy Services Corporations Act 1995 (NSW) s 6(3A).
107. By the Forestry and Land Title Amendment Act 2001.
108. Forestry Act 1959 (QLD) s 61J(7).
109. Forestry Act 1959 (QLD) s 61J(7).
110. Land Title Act 1994 (QLD) s 97E to 97L.
111. Queensland government, Queensland Greenhouse Policy Framework: A Climate of Change, (September 2001).
112. As assented to on 20 July 2000, this Act is not yet in force.
113. Forest Property Act 2000 (SA) s 7(1)(b) (not yet commenced operation).
114. Forest Property Act 2000 (SA) s 7(1)(b) (not yet commenced operation).
115. Forestry Rights Act 1996 (Vic), s 11(b).
116. Forestry Rights Act 1996 (Vic), s 12.
117. Forestry Rights Act 1996 (Vic), ss 6-9.
118. Forestry Rights Act 1996 (Vic), s 9.
119. WA Carbon Rights Taskforce, Carbon Rights in Western Australia-Discussion Paper, (11 June 2001) 1.
120. Conservation and Land Management Act 1984 (WA), s 3.
121. Conservation and Land Management Act 1984 (WA), s 34B.
122. Penny Wensley, "Global Trends: The Emergence of International Environmental Law" in Ben Boer, Robert Fowler and Neil Gunningham (ed), Environmental Outlook, Law and Policy (1994) 8.
123. See for example, Michael Millett, "Plant now and pollute later deal with Japan, " Sydney Morning Herald (Sydney), 14 February 2000, 1.
124. For more details of this and other significant transactions in Australia, see Martijn Wilder, "The Kyoto Protocol and early action" (2001) 7(2) The University of New South Wales Law Journal-Forum (The Kyoto Protocol: Politics and Practicalities) 22.
125. Julian Wall, "Carbon Sinks for Ecosystem Reconstruction" (Paper presented at the National Parks and Wildlife Service Policy and Science Directorate Seminar Series, Hurstville, 31 August 2001).
126. Sue Salvin, "NSW State Forests Environmental Investment Services" (Paper presented at the Green Trades Conference, PWC Legal Offices, Sydney, 5 September 2000).
127. For additional information on this scheme and to view some of the trades that have taken place, see , accessed 12/11/01.
128. Judson Agius, "Biodiversity Credits: Creating Missing Markets for Biodiversity" (2001) 18(5) Environmental and Planning Law Journal 481.
129. B Aretino et al, Creating Markets for Biodiversity: A Case Study of Earth Sanctuaries Pty Limited, Staff Research Paper, prepared for Productivity Commission, (2001).
130. 2 and nitrogen deposition" (2001) 410(6830) Nature 809.
131. Jacqueline Bredhauer, "Tree Clearing in Western Queensland-a Cost Benefit Analysis of Carbon Sequestration" (2000) 17(5) Environmental and Planning Law Journal 383.
132. See generally Ben Boer, Robert Fowler and Neil Gunningham (ed), Environmental Outlook, Law and Policy (1994).
133. Plantations and Reafforestation Act 1999 (NSW), s 5 (uncommenced and awaiting proclamation).
134. See NSW State Forests, Integral grows Western Sydney's first greenhouse forest, Press Release, (5 June 2000).
135. John Cairns Jr, "The Need for Integrated Environmental Systems Management" in John Cairns Jr and Todd V Crawford (ed), Integrated Environmental Management (1991) 6.
136. For example, the Visy Pulp and Paper Mill in Tumut, which diverts timber construction waste and off-cuts away from landfills to its timber-burning boiler, for generation of the electricity needed to run it s pulp and paper mill.
137. In accordance with Kyoto Protocol, Arts 3.3 and 3.4.
138. Robert T Watson et al (ed), Land Use, Land-Use Change, and Forestry (2000) Special Report of the Intergovernmental Panel on Climate Change.
139. Clive Hamilton, Running From the Storm-the development of climate change policy in Australia (2001) 150.
140. Robert Watson (ed), Climate Change 2001-IPCC Synthesis Report to the Third Assessment Report, prepared for Intergovernmental Panel on Climate Change, (Pre-publication draft approved 29 September 2001) , accessed 2 November 2001, 69.
141. Malcolm R Gray, "The UK Emissions Trading Scheme: The Policy Framework, " (October/November 2001) AETF Review, , accessed 7 November 2001, 2.
142. "GETS, " with GETS3 recently completed. The EU is made up of 15 countries and Norway, Hungary, Switzerland, the Czech Republic, and Poland have also been participating in this trading simulation, which covers 10 different sections of the potential trading market (for further information see reference immediately below footnote).
143. Kira Schmidt (ed), 'The European Union's recent proposals and initiatives on climate change, including an EU-emissions trading scheme', ENB on the Side (Special Report by IISD and UNFCCC Secretariat), 1 November 2001, 1.
144. Kira Schmidt (ed), "Greenhouse gas trading in the European Union, " ENB on the Side (Special Report by IISD and UNFCCC Secretariat), 2 November 2001, 3.
145. Tony Beck, "Chicago Climate Exchange on Track" (October/November 2001) AETF Review, , accessed 7 November 2001, 7. The Midwest is said to be responsible for around 20 per cent of US total emissions.
146. See generally content and submissions contained in Australian Greenhouse Office, Government Response to "The Heat is On: Australia's Greenhouse Future, " prepared for Canberra Commonwealth of Australia, (July 2001).