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Climate of Exception: What Might a ‘Climate Emergency’ Mean in Law?

Published online by Cambridge University Press:  24 January 2025

Bruce Lindsay
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Extract

Human-induced climate change is an issue of unparalleled scale and gravity. There are calls for rapid, dramatic action on this issue, including declaration of a ‘climate emergency’. While this term has been used as a political call to action, the phrase has an obvious legal tenor. It invokes a particular category of state conduct – the ‘state of emergency’. What this article is concerned to do is to explore how a ‘climate emergency’ might assume a legal character and whether ‘climate emergency’ laws could sustain constitutional legitimacy in the Australian context. At present ‘mainstream’ political opinion in Australia, as represented by either the Labor or Coalition Parties, clearly does not favour such a course of action. Yet legal analysis of the concept is not intended as entirely speculative. If a ‘climate emergency’ – or policies intended to pursue comparably rapid social and economic change – is to be posed seriously, the term needs to be subject to critical analysis. This article hopes to contribute to that task.

Type
Research Article
Information
Federal Law Review , Volume 38 , Issue 2 , June 2010 , pp. 255 - 281
Copyright
Copyright © 2010 The Australian National University

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Footnotes

I would like to thank the anonymous referees for their comments and suggestions in review of the original paper.

References

1 David Spratt and Philip Sutton, Climate Code Red: The Case for Emergency Action (2008); ‘UN Chief Makes Antarctica Visit', BBC News (London, UK), 10 November 2007, <http://news.bbc.co.uk/2/hi/science/nature/7088435.stm> at 3 September 2009. UN Secretary-General Ban Ki Moon publicly put the climate change crisis in the same terms: ‘This is an emergency and for emergency situations we need emergency action'.

2 Intergovernmental Panel on Climate Change ('IPCC’), ‘Summary for Policymakers’ in Susan, Solomon et al (eds), Climate Change 2007: The Physical Science Basis – Contribution Of Working Group I To The Fourth Assessment Report To The Intergovernmental Panel On Climate Change (2007) 1, 2Google Scholar.

3 Ibid.

4 Lord, Nicholas Stern, The Economics of Climate Change (2006)Google Scholar.

5 Ross, Garnaut, The Garnaut Climate Change Review: Final Report (2008)Google Scholar.

6 Stern, above n 4, xvi.

7 Garnaut, above n 5, 75.

8 Carbon Pollution Reduction Scheme Bill 2009 (Cth) s 3(4).

9 Australian Government, Carbon Pollution Reduction Scheme: Australia's Low Pollution Future: White Paper (2008) 4–1Google Scholar.

10 Spratt and Sutton, above n 1, ch 20.

11 Ibid 179–80:

The message is that we can proceed without inconvenience; that is the lifestyle face of the new ‘business as usual’ — an attempt to deal with the immediate pressures of the sustainability crisis in a way that minimizes the changes in business models and power relations, at the expense of really solving the problems.

12 See, eg, James, Hansen, ‘Defusing The Global Warming Time Bomb’ (2004) 290 Scientific American 69, 72–3Google Scholar:

The goal of the United Nations Framework Convention on Climate Change, produced in Rio De Janeiro in 1989, is to stabilize atmospheric composition to ‘prevent dangerous anthropogenic interference with the climate system’ and to achieve that goal in ways that do not disrupt the global economy. Defining the level of warming that constitutes ‘dangerous anthropogenic interference’ is thus a crucial but difficult part of the problem.

13 See James, Hansen, ‘A Slippery Slope: How Much Global Warming Constitutes “Dangerous Anthropogenic Interference“? An Editorial Essay’ (2005) 68 Climatic Change 269Google Scholar.

14 See, eg, International Scientific Congress, Climate Change: Global Risks, Challenges And Decisions — Synthesis Report (2009) 12–16Google Scholar; Richard, Alley et al, ‘Abrupt Climate Change’ (2003) 299 Science 2005Google Scholar.

15 James, Hansen, ‘Tipping Point: Perspective of a Climatologist’ in Eva, Fearn (ed), State of the Wild 2008–2009: A Global Portrait of Wildlife, Wildlands and Oceans (2009) 6, 13Google Scholar.

16 Johan, Rockstrom et al, ‘Planetary Boundaries: Exploring the Safe Operating Space for Humanity’ (2009) 14 Ecology and Society 32, 41Google Scholar.

17 Ibid.

18 Ibid 34.

19 Alley et al, above n 14.

20 Ibid.

21 Spratt and Sutton, above n 1, 4; Hansen, ‘Tipping Point', above n 15, 9; Rockstrom et al, above n 16, 54: ‘Our preliminary analysis indicates we have already transgressed three boundaries (climate change, the rate of biodiversity loss, and the rate of interference with the nitrogen cycle).’ The situation in the Arctic is viewed as a signal development, as reflectivity of the Arctic sea ice ('albedo effect’) is an important mechanism of stability in global (and regional) temperature. Disintegration of the Artic sea ice represents a critical moment in system instability, or ‘runaway’ climate change.

22 For a more comprehensive overview of ‘policy-relevant potential tipping elements', see Will Steffen, Climate Change 2009: Faster Change and More Serious Risks (2009) 44.

23 Hansen notes the two major catastrophic sources of instability are sea level rise and mass species extinction, the latter occurring especially as climate zones and isotherms shift faster than ecosystems can naturally evolve or species migrate. See, eg, James Hansen, In Defence of Kingsnorth Six — Testimony for criminal trial in Kent, United Kingdom (2008) <http://www.columbia.edu/~jeh1/mailings/2008/20080910_Kingsnorth.pdf> at 14 July 2009.

24 IPCC, above n 2, 13.

25 See, eg, Michael, Oppenheimer et al, ‘The Limits Of Consensus’ (2007) 317 Science 1505Google Scholar; Susan, Solomon et al, ‘A Closer Look At The IPCC Report’ (2008) 319 Science 409Google Scholar.

26 See International Scientific Congress, above n 14, 8–9:

Since the last IPCC report, updated trends in surface ocean temperatures and heat content have been published. These revised estimates show … that the ocean has warmed significantly in recent years. Current estimates indicate that ocean warming is about 50% greater than has been previously reported by the IPCC. The new estimates help to better explain the trend in sea level that has been observed in recent decades as most of the sea-level rise observed until recently has been the result of thermal expansion of seawater. The rate of sea-level rise has increased in the period from 1993 to the present… largely due to growing contributions of ice-loss from Greenland … and Antarctica …

Steffen, above n 22, (research post-Fourth Assessment Report of IPCC confirms climate change at upper end of IPCC projections and reinforces likelihood of long-term positive feedback processes).

27 See, eg, Thomas, Stocker, ‘Climate Change: The Seesaw Effect’ (1998) 282 Science 61Google Scholar; F S, Hu et al, ‘Abrupt Changes In North American Climate During Early Holocene Times’ (1999) 400 Nature 437Google Scholar; Peter, Clark et al, ‘The Role Of The Thermohaline Circulation In Abrupt Climate Change’ (2002) 415 Nature 863Google Scholar.

28 United Nations Framework Convention on Climate Change, opened for signature 4 June 1992, 1771 UNTS 107, 31 ILM 849 (1992) (entered into force 21 March 1994) ('Framework Convention’); UNFCCC, Copenhagen Accord, [1]–[2] UN Doc FCCC/CP/2009/11/Add.1 (2009) ('Accord’). The Accord established no binding commitments either in relation to the 2ºC limit or quantitative reduction in carbon emissions.

29 Andrew Macintosh, ‘Keeping Warming Within the 2ºC limit after Copenhagen’ (Working Paper Series 2009/1, ANU Centre for Climate Law and Policy, 2009) 20-21. In respect of various carbon budget scenarios, Macintosh posits that ‘a more realistic approximation of the cumulative CO2 emissions for the 21st century… consistent with the 2ºC limit [is a] minimum required abatement rate post-2030 [of] 4.16%/yr.’ He notes actual abatement rates among developed countries are unlikely to be in excess of approximately 2 per cent/yr at present.

30 Ibid 23.

31 Ibid 23.

32 Ibid 21.

33 Ibid 23. If ‘tipping points’ (carbon cycle feedbacks) are at the higher end of predictions then it may be that the only way to limit warming below 2ºC post–2020 may be ‘to pursue a radical decarbonisation strategy that is well beyond that currently being contemplated': at 22.

34 See Australian Government, Australia's National Greenhouse Accounts: National Inventory Report 2007, vol 1, 2 (2007) <http://www.climatechange.gov.au/~/media/publications/greenhouse-acctg/national-inventory-report-vol-1-part-a.ashx> at 29 March 2010.

35 The legislation comprises a ‘package’ of 11 bills: Carbon Pollution Reduction Scheme Bill 2010 ('CPRS Bill 2010’); Carbon Pollution Reduction Scheme (Consequential Amendments) Bill 2010; Carbon Pollution Reduction Scheme (Charges — General) Bill 2010; Carbon Pollution Reduction Scheme (Charges — Excise) Bill 2010; Carbon Pollution Reduction Scheme (Charges — Customs) Bill 2010; Customs Tariff Amendment (Carbon Pollution Reduction Scheme) Bill 2010; Excise Tariff Amendment (Carbon Pollution Reduction Scheme) Bill 2010; Carbon Pollution Reduction Scheme (CPRS Fuel Credits) (Consequential Amendments) Bill 2010; Carbon Pollution Reduction Scheme (CPRS Fuel Credits) Bill 2010; Carbon Pollution Reduction Scheme Amendment (Household Assistance) Bill 2010; Australian Climate Change Regulatory Authority Bill 2010.

36 CPRS Bill 2010 s 3(4).

37 See, eg, Michael, Power, ‘Emissions Trading in Australia: Markets, Law and Justice Under The CPRS’ (2010) 27 Environment and Planning Law Journal 131Google Scholar; Chris, McGrath, ‘Australia's Draft Climate Laws’ (2009) 26 Environment and Planning Law Journal 267Google Scholar; Richard Denniss, ‘Fixing The Floor In The ETS: The Role Of Energy Efficiency In Reducing Australia's Emissions', (Research Paper 59, The Australia Institute, 2008); Richard Denniss, Making Life Easier for Emitters (2009) Inside Story <http://inside.org.au/making-life-easier-for-emitters/> at 29 March 2010; Danny Ellerman and Paul Joskow, ‘The European Union's Emissions Trading Scheme In Perspective’ (Pew Centre On Global Climate Change, 2008) 24–44; Brian Walters and Matthew Baird, Advice to Senator Bob Brown and Senator Christine Milne in Relation to Certain Aspects of the Carbon Pollution Reduction Scheme <http://greensmps.org.au/webfm_send/315> at 29 March 2010.

38 The Greens’ package includes 12 pieces of legislation and was presented as ‘exposure drafts': <www.safeclimatebill.org.au> at 29 March 2010.

39 Australian Greens, ‘The Safe Climate Bills', <http://greensmps.org.au/the-safe-climate-bills> at 30 July 2010.

40 See, eg, ibid:

The clear scientific evidence is that, in order to deliver a safe climate, we must bring greenhouse pollution in the atmosphere back down to 350 ppm or lower. No one alive today may be around to see this goal achieved, but its eventual achievement is nonetheless entirely in the hands of today's decision-makers since further delay risks triggering positive feedbacks that will take global warming out of humanity's hands. Eventually achieving 350 ppm means global emissions must peak within years and start coming down as swiftly as possible. A fair contribution to this global challenge from a rich, high-polluting country like Australia means we must transform into a net zero carbon economy within the coming decades, cutting our emissions to at least 40% below 1990 levels by 2020.

Commonwealth, Parliamentary Debates, Senate, 24 November 2009, 8682 (Senator Christine Milne):

As I rise to speak today, the earth, its people and its ecosystems are facing a planetary emergency driven by global warming and the Rudd government has demonstrated not only that is it not up to the task of addressing a global emergency but also that it has deliberately, willingly and knowingly turned its back on this generation, future generations and in particular all of those people in developing countries who are already suffering from climate change.

41 Power, above n 37, 162; see also McGrath, above n 37, 291.

42 See David, Spratt, ‘Carbon Taxes or a Carbon Ration?’ (2007) 23 Dissent 32Google Scholar.

43 Richard Starkey and Kevin Anderson, ‘Domestic Tradable Quotas: A Policy Instrument For Reducing Greenhouse Gas Emissions From Energy Use’ (Technical Report No 39, Tyndall Centre For Climate Change Research, 2005).

44 George, Monbiot, Heat: How To Stop the Planet Burning (2007)Google Scholar.

45 Equating to a 94 per cent reduction for Australia: ibid 16. The 90 per cent figure represents a presumed allocation of a carbon emissions budget of 0.33 tonnes per person globally.

46 For sympathetic approaches in the Australian context, see, eg, Friends of the Earth, A Green New Deal For Victoria — An Integrated Response To The Triple Crunch Of Recession, Climate Change, And Peak Oil (2009) <http://greennewdeal.wordpress.com/the-final-version/> at 27 August 2009; Beyond Zero Emissions, Zero Carbon Australia 2020: Stationary Energy Sector Report — Executive Summary (2010) <http://media.beyondzeroemissions.org/preview-exec-sum14.pdf> at 7 April 2010.

47 Monbiot, above n 44, 153.

48 Ibid 182: ‘There is, in other words, no technofix. The growth in aviation and the need to address climate change cannot be reconciled… a 90 per cent cut in emissions requires not only that growth [in aviation] stops, but that most of the planes which are flying today are grounded.'

49 Given, for instance, higher per capita carbon emissions rates for Australia and relatively high reliance on coal-fired electricity supply and generation of export revenues from export of coal.

50 See, eg, Lester Brown, Plan B 2.0: Rescuing A Planet Under Stress And A Civilization In Trouble (2006) ch 13.

51 H P, Lee, Emergency Powers (1984) 4Google Scholar. Lee generally classifies emergency powers into wartime and peacetime circumstances, with wartime emergencies representing ‘the gravest emergency in the life of the nation': at 5.

52 Giorgio Agamben, State of Exception (Kevin Attell trans, 2005 ed) 1 [trans of: Stato di Eccezione].

53 Ibid 2.

54 Ibid 1.

55 For consideration of this contrast, see David, Dyzenhaus, ‘Schmitt v Dicey: Are States of Emergency Inside or Outside the Legal Order?’ (2006) 27 Cardozo Law Review 2005Google Scholar.

56 Carl Schmitt, Political Theology: Four Chapters on the Concept of Sovereignty (George Schwab trans, 2005) [trans of: Politische Theologie: vier Kapitel zur Lehre von der Souveranitat]. For Schmitt, resolution of the problem of ‘ambiguity’ (as Agamben puts it) between norm (law) and exception (necessity) lies in the sphere of political action, and in particular with the conduct of sovereign power. As Schmitt famously remarked (at 5): ‘Sovereign is he who decides on the exception.’ The question as to what body or person wields sovereign power in such circumstances may be a constitutional question, either expressly determined (where constitutional provision for the government of emergency powers exists) or implicitly determined (as in those circumstances, such as under prerogative power of the Westminster constitution, where a form of presumed, ‘reserve’ power operates), or elements of both.

57 See A V, Dicey, Introduction to the Study of the Law of the Constitution (8th ed, 1982 [1915])Google Scholar ch 8, Note X. See also John, Ferejohn and Pasquale, Pasquino, ‘The Law of the Exception: A Typology of Emergency Powers’ (2004) 2 International Journal of Constitutional Law 210, 210Google Scholar.

58 David, Dyzenhaus, ‘Cycles Of Legality In Emergency Times’ (2007) 18 Public Law Review 165, 167Google Scholar.

59 Ibid 168; see also David, Dyzenhaus, ‘Humpty Dumpty Rules or the Rule of Law: Legal Theory and the Adjudication of National Security’ (2003) 28 Australian Journal of Legal Philosophy 1, 28Google Scholar: ‘The very fact that the exception is brought within the law makes it susceptible to the rule of law — it gives to judges, minded to do so, the opportunity to impose the values of the rule of law on the administration.'

60 Nomi, Claire Lazar, States of Emergency in Liberal Democracies (2009)Google Scholar.

61 Ibid 5. She continues: ‘Normal and emergency values are continuous. Normal and exceptional institutions have important elements of continuity also.'

62 Ibid 5.

63 Ibid 7.

64 Ibid 137; see also Nomi, Claire Lazar, ‘A Topography of Emergency Power’ in Victor, Ramraj (ed), Emergencies and the Limits of Legality (2008) 156Google Scholar; Mark, Tushnet, ‘The Political Constitution of Emergency Powers: Some Conceptual Issues’ in Victor, Ramraj (ed), Emergencies and the Limits of Legality (2008) 145Google Scholar.

65 Lazar, above n 60, 3, where she describes (or dismisses) Agamben's work as ‘fundamentally Schmittian'.

66 See Agamben, above n 52, 23:

The simple topographical opposition (inside/outside) implicit in these theories seems insufficient to account for the phenomenon it should explain … In truth, the state of exception is neither external nor internal to the juridical order, and the problem of defining it concerns precisely a threshold, or a zone of indifference, where inside and outside do not exclude each other but rather blur with each other. The suspension of the norm does not mean its abolition, and the zone of anomie that it establishes is not (or at least claims not to be) unrelated to the juridical order.

67 Ibid 48: Agamben considers the ‘state of exception’ best equated with the ‘more obscure, genealogical paradigm in roman law’ of the iustitium: that condition established by the Senate following its declaration of an emergency situation.

68 Ibid 48.

69 Ibid 51.

70 Compare, eg, Kim, Lane Scheppele's rather ironically titled ‘Small Emergencies’ (2006) 40 Georgia Law Review 835, 835–6Google Scholar:

Small emergencies are problems that are deemed worthy of exceptional solutions, but are simultaneously deemed too minor to warrant a full-fledged reassessment of constitutional structures and constitutional aspirations. The very idea that emergencies could be minor … suggests that they are not to be seen as fundamentally disruptive of the overall order of things … But small emergencies have been a standard feature of American constitutional life for so long that they have actually overtaken the constitutional dream of normal governance. Most Americans, however — including most constitutional theorists — are still dreaming.

See also Roger, Roots, ‘Government by Permanent Emergency: The Forgotten History of the New Deal Constitution’ (2000) 33 Suffolk University Law Review 259Google Scholar; Frank, Church, ‘Ending Emergency Government’ (1977) 63 American Bar Association Journal 197, 198Google Scholar: the 1972 Special Committee on National Emergencies and Delegated Emergency Powers established by the US Congress found ‘470 special statutes that could be invoked by the president at any time during a declared national emergency.'

71 See, eg, Lazar, above n 60, 5:

Emergency powers are justified — when they are justified — because they embody principles that already function under normal circumstances. Order is a value also, and it animates the day-to-day life of the state alongside liberal values … Rights are derogated for the sake of order every day.

72 Ibid 136: ‘Emergency powers take on the moral character of the end they serve.’ See also Nomi, Claire Lazar, ‘Must Exceptionalism Prove the Rule? An Angle on Emergency Government in the History of Political Thought’ (2006) 34 Politics and Society 245, 268Google Scholar in which Lazar proposes a general program of ‘principles for safety’ governing emergency rule within the norms of the liberal-democratic state.

73 See, eg, Agamben, above n 52, 31: ‘Far from being a response to a normative lacuna, the state of exception appears as the opening of a fictitious lacuna in the order for the purposes of safeguarding the existence of the norm and its applicability to the normal situation.’ That is to say, the exception (declaration of emergency) is purposive and orientated toward a norm or governmental project of some description. He is critical, in addition, to the equation of the state of exception with the principle of ‘necessity', as an attempt to ground exceptional powers on ‘pure factuality'. He points out (at 29) that there is always a ‘subjective’ (ie political) dimension in the assertion of a ‘state of necessity', one which relies if nothing else on a (political and strategic) decision.

74 On this broader theoretical question of the relationship between emergency modes of government, their political content, and climate change, see Adam, Bandt, ‘Had We But World Enough and Time (Reconsidering “Emergency“)’ (2009) 31 Australian Feminist Law Journal 15Google Scholar. He remarks (at 30) on the capacity for emergency to assume the space of an alternative political project: ‘The climate emergency has placed back on the agenda something that the rise of neoliberalism had threatened to erase: the prospect of imagining that society can be ordered differently.’ Significantly, Bandt points (at 32) to the vision of the ‘new creative and active subject of the climate emergency’ at the heart of any normative rupture with ‘business as usual'.

75 In relation to the High Court's treatment of emergency powers across this entire ‘cycle’ of wartime emergency, see Lee, above n 51, 26–36.

76 Hence the emergence, for example, in the second half of the twentieth century of urban guerrilla (or ‘terrorist’) movements of various descriptions in Western countries, such as the IRA, ETA, the Red Army Faction or the Red Brigades. In Thomas v Mowbray (2007) 233 CLR 307, a majority of the High Court has effectively subsumed this model of military (or militarised) conflict into a sphere of action for which the Commonwealth can legislate under the defence power (s 51 (vi)) of the Commonwealth Constitution. Notably, it was held (Kirby J dissenting) that the Commonwealth could validly legislate with respect to ‘the public, or sections of the public’ rather than merely ‘bodies politic': Gleeson CJ at 324, Gummow and Crennan JJ at 362, and Hayne J at 457–458.

77 Lee notes, for instance, the close relationship between strikes and industrial unrest through the 1970s and the promulgation (and/or use) of emergency legislation in key ('essential’) industrial sectors, especially as means of breaking strikes: Lee, above n 51, 187–95.

78 For example, on the Hurricane Katrina disaster in New Orleans, see Kathleen, Tierney and Christine, Bevc, ‘Disaster as War: Militarism and the Social Construction of Disaster in New Orleans’ in David, Brunsma, David, Overfelt, and J, Steven Picou (eds) The Sociology of Katrina: Perspectives on a Modern Catastrophe (2007) 35Google Scholar; DeMond, Miller, Matthew, Pavelchak, Randolph, Burnside, Jason, Rivera, ‘Responding to Natural Disasters: An Increased Military Response and its Impact on Public Policy Administration’ in Jack, Pinkowski (ed), Disaster Management Handbook (2008) 401Google Scholar.

79 For example, Roosevelt's immediate responses to the Great Depression were made pursuant to the US Trading With The Enemy Act, 12 USC § 95a (1917), and it has been argued the actions were unconstitutional: see Roger, Roots, ‘Government By Permanent Emergency: The Forgotten History Of The New Deal Constitution’ (2000) 33 Suffolk University Law Review 259Google Scholar.

80 William, Scheuerman, ‘The Economic State of Emergency’ (2000) 21 Cardozo Law Review 1869, 1878Google Scholar.

81 Emergency Economic Stabilization Act 2008 Pub L No 110–343.

82 As in, eg, Bandt, above n 74.

83 For example, Monbiot, above n 44; Spratt and Sutton, above n 1; Australian Greens, above n 39.

84 The National Security Act 1939 (Cth) conferred exceptionally wide discretion on the executive, as its purpose was to provide the means to confront a ‘total war’ and, at times, the imminent threat of invasion. See, eg, B, Sugerman and W J, Dignam, ‘The Defence Power And Total War’ (1943) 17 Australian Law Journal 207, 210–11Google Scholar:

Two broad circumstances stand in the forefront of any discussion of the scope of the defence power under the conditions of modern warfare. … The first is the necessity for unified control… The second is the need for a marshalling of the entire resources of the nation… And in so far as this marshalling is effected by legislative means, the legislation will of necessity extend into virtually every field of the social, economic and industrial life of the community.

85 Stenhouse v Coleman (1944) 69 CLR 457, 471–2 (Dixon J); see generally Tony, Blackshield and George, Williams, Australian Constitutional Law and Theory: Commentary and Materials (5th ed 2010) 827Google Scholar.

86 Australian Communist Party v Commonwealth (1951) 83 CLR 1, 195 ('Communist Party Case’) (Dixon J); see also, at 199, the notion that the power possesses ‘a fixed meaning within a changing application, as a fixed concept with a changing content.'

87 See Hayne J's summation of Dixon J's dicta in the Communist Party Case in Thomas v Mowbray (2007) 233 CLR 307, 455–6.

88 See, eg, German Advisory Council on Global Change World In Transition: Climate Change As A Security Risk: Summary For Policy-Makers (2007) <http://www.wbgu.de/wbgu_jg2007_kurz_engl.html> at 31 July 2010; Chris Abbott, An Uncertain Future: Law Enforcement, National Security and Climate Change (2008), <http://www.oxfordresearchgroup.org.uk/publications/briefing_papers/uncertain_future_law_enforcement_national_security_and_climate_change> at 31 July 2010.

89 Bandt, above n 74, 30.

90 See R T, Pierrehumbert, ‘Climate Change: A Catastrophe in Slow Motion’ (2006) 6 Chicago Journal of International Law 573Google Scholar.

91 Compare Greenpeace Australia Ltd v Redbank Power Company Pty Ltd and Singleton Council (1994) 86 LGERA 143, 146: ‘Due to the intrinsically global nature of the problems associated with the human enhanced greenhouse effect, an international instrument was created in an attempt to co-ordinate a response.'

92 Protection of Global Climate for Present and Future generations of Mankind, GA Res 53, UN GAOR, 43rd sess, 70th plen mtg, UN Doc A/RES/43/53 (1988).

93 Framework Convention, opened for signature 4 June 1992, 1771 UNTS 107, art 2 (entered into force 21 March 1994).

94 Ibid art 3(3).

95 On the concept, see, eg, Edith, Brown Weiss, ‘The Planetary Trust: Conservation and Intergenerational Equity’ (1984) 11 Ecological Law Quarterly 495Google Scholar; Lynda, Collins, ‘Revisiting the Doctrine of Intergenerational Equity in Global Environmental Governance’ (2007) 30 Dalhousie Law Journal 79Google Scholar; and its relationship with climate change, eg, James, Wood, ‘Intergenerational Equity and Climate Change’ (1996) 8 Georgetown International Environmental Law Review 293Google Scholar.

96 See Weiss, above n 95.

97 See Alliance of Small Island States, Declaration on Climate Change 2009 (2009) [6] <http://www.sidsnet.org/aosis/documents/AOSIS%20Summit%20Declaration%20Sept%2021%20FINAL.pdf> at 14 May 2010.

98 See generally Paul, Harremoes et al, The Precautionary Principle In The 20th Century: Late Lessons From Early Warnings ( 2002)Google Scholar.

99 Owen, McIntyre and Thomas, Mosedale, ‘The Precautionary Principle as a Norm of Customary International Law’ (1997) 9 Journal of Environmental Law 221, 221–222Google Scholar.

100 Rio Declaration on Environment and Development, UN Doc A/CONF.151/26 (1992).

101 For example, Environment Protection and Biodiversity Conservation Act 1999 (Cth) s 3A; Environment Protection Act 1970 (Vic) s 1C; Protection of the Environment Administration Act 1991 (NSW) s 6(2).

102 Lawyers for Forests Inc v Minister for the Environment, Heritage and the Arts [2009] FCA 330, [36].

103 See, eg, James, Cameron and Juli, Abouchar, ‘The Precautionary Principle: A Fundamental Principle of Law and Policy for the Protection of the Global Environment’ (1991) 14 Boston College International and Comparative Law Review 1Google Scholar.

104 Stephanie, Joan Mead, ‘The Precautionary Principle: A Discussion of the Principle's Meaning and Status in an Attempt to Further Define and Understand the Principle’ (2004) 8 New Zealand Journal of Environmental Law 137, 142Google Scholar.

105 See generally Jacqueline, Peel, ‘Precaution — A Matter of Principle, Approach or Process?’ (2004) 5 Melbourne Journal Of International Law 483Google Scholar; Mead, above n 104; James, E Hickey Jr and Vern, R Walker, ‘Refining The Precautionary Principle In International Environmental Law’ (1994–1995) 14 Virginia Environmental Law Journal 423Google Scholar; McIntyre and Mosedale, above n 99; Felicity, Nagorcka, ‘Saying What You Mean and Meaning What You Say: Precaution, Science and the Importance of Language’ (2003) 20 Environment and Planning Law Journal 211Google Scholar; see also Telstra Corporation Limited v Hornsby Shire Council (2006) 67 NSWLR 256, 269:

However, there has not yet been, in the decisions of this Court, a detailed explanation of the precautionary principle or the procedure for application of it. Hence, it is necessary to refer to other sources of information on the precautionary principle, including judicial decisions of other jurisdictions and the academic literature on the precautionary principle. Drawing on these sources, the following guidance can be offered on the concept of the precautionary principle and its application.

106 McIntyre and Mosedale, above n 100, 230.

107 Mead, above n 104, 158–68.

108 Cameron and Abouchar, above n 103.

109 Peel, above n 105, 500; see also Mead, above n 104, 165:

Some academics argue that determining whether the precautionary principle is a rule of customary international law … has become a moot point due to the strong acceptance of principle 15 of the Rio Declaration which has been universally applied, without even considering if it constitutes a rule of law or not.

110 Peel, above n 105, 500: ‘The harsh reality of decision-making under conditions of scientific uncertainty is that judgements as to which risk regulatory approach was the right one can only be made in hindsight.'

111 (2006) 67 NSWLR 256, 268–280 [125]–[183].

112 Ibid 273 [150].

113 Ibid 276 [161].

114 Ibid 272 [146].

115 Ibid 277 [166].

116 Ibid 271 [138].

117 Hickey and Walker, above n 105, 448.

118 Western Water v Rozen [2008] VSC 382.

119 Walker v Minister for Planning (2007) LGERA 124, 191 [161].

120 Climate Change, Synthesis Report (2009) Climate Change Congress — University of Copenhagen 36 <http://climatecongress.ku.dk/pdf/synthesisreport/> at 30 July 2010 (emphasis added):

Climate change is fundamentally different from the environmental problems humanity has dealt with until now. The risks, scale and uncertainties associated with climate change are enormous and there is a significant probability of a devastating outcome at a global scale … The scientific evidence strongly suggests there is an upper limit for the concentration of greenhouse gases in the atmosphere, or a ‘climate change boundary', within which humanity should operate to reduce the risks of catastrophic outcomes. Although the precise position is not yet known, current evidence indicates that humanity is fast approaching or may even have exceeded the boundary. Thus, the need for rapid and drastic reductions in the emissions of greenhouse gases is urgent if serious climate impacts are to be avoided

121 Generally, see IP CC, Climate Change 2007: Synthesis Report (2007) 48–54.

122 Walker v Minister for Planning (2007) LGERA 124, 192 [166].

123 On evidence of irreversibility, see Susan, Solomon et al, ‘Irreversible Climate Change due to Carbon Dioxide Emissions’ (2009) 106 Proceedings of the National Academy of Sciences 1704, 1704Google Scholar.

124 The certainty is calculated by the IPCC at least 90%: see IPCC, Synthesis Report, above n 121, 5: ‘There is very high confidence that the net effect of human activities since 1750 has been one of warming.’ Also IPCC, Guidance Notes for Lead Authors of the IPCC Fourth Assessment Report on Addressing Uncertainties (2005) 3, Table 3.

125 IPCC, ‘Summary for Policymakers', above n 2, 14.

126 Nicholas, de Sadeleer, Environmental Principles: From Political Slogans to Legal Rules (2002) 160Google Scholar.

127 Compare, eg, Dixon J's generalised delineation of ‘war-footing’ and the ‘period of ostensible peace’ in his characterisation of the limits of the defence power: Communist Party Case (1951) 83 CLR 1, 195–202. It is recognised that legislative and administrative response to emergency conditions invariably requires more nuanced approach, taking into account the precise ebb and flow of events and necessity. Compare, for instance, the actual circumstances of wartime mobilisation at the height of the Pacific War emergency in 1942, where ‘total war’ control by government was achieved in remarkably short time and led to an ‘inevitably, indeed desirable’ ‘overcommitment’ of resources to the war effort: Butlin and Shedvin, War Economy 1942–1945 (1977) ch 1, 11–12.

128 Compare Telstra Corporation Limited v Hornsby Shire Council (2006) 67 NSWLR 256, 278 [176] (Preston CJ): ‘One solution suggested is to combine economic and non-economic measures by way of multi-criteria analysis.’ In any case, note Gavin, Schmidt and David, Archer, ‘Too Much of a Bad Thing’ (2009) 458 Nature 1117, 1118Google Scholar:

Dangerous change, even loosely defined, is going to be hard to avoid. Unless emissions begin to decline very soon, severe disruption to the climate system will entail expensive adaptation measures and may eventually require cleaning up the mess by actively removing CO2 from the atmosphere. Like an oil spill or groundwater contamination, it will probably be cheaper in the long run to avoid making the mess in the first place.

129 Safe Climate (Emissions Trading Scheme) Bill 2009 (Cth) s 3; Carbon Pollution Reduction Scheme Bill 2009 (Cth) s 3.

130 Safe Climate (Emissions Trading Scheme) Bill 2009 (Cth) ss 16–18; Carbon Pollution Reduction Scheme Bill 2009 (Cth) ss 13–15.

131 As noted above, the Greens’ long-term (2020) target is ostensibly aimed at an overall, global GHG concentration target (350 ppm CO2-e) consistent with the ‘emergency’ analysis.

132 For example, in respect of an emissions trading scheme, annual targets that suddenly and disruptively raise costs and significantly undermine profitability on ‘carbon-intensive’ industries, either at primary source (eg coal-fired energy production) or in ‘downstream’ use (eg, manufacturing, road transport).

133 Notwithstanding that the Framework Convention itself contains only limited binding commitments on state Parties, mainly in respect of reporting, research and scientific action. On the ‘framework’ nature of the agreement, see Daniel, Bodansky, ‘The United Nations Framework Convention on Climate Change: A Commentary’ (1993) 18 Yale Journal of International Law 451, 493–6Google Scholar. Bodansky notes that the status of the art 2 objective ('stabilization of greenhouse gas concentrations in the atmosphere at a level that would prevent dangerous anthropogenic interference with the climate system’) is ‘unclear', and that the qualification ‘ultimate’ may be intended to produce something short of a binding commitment: at 499–500.

134 Jacqueline, Peel and Lee, Godden, ‘Australian Environmental Management: A “Dams” Story’ (2005) 28 University of New South Wales Law Journal 668, 675Google Scholar.

135 Commencing with Koowarta v Bjelke-Petersen (1982) 153 CLR 168; and proceeding through Commonwealth v Tasmania (1983) 158 CLR 1 ('Tasmanian Dam Case’) and including Richardson v Forestry Commission (1988) 164 CLR 261, Polyukhovich v Commonwealth (1991) 172 CLR 501, and Victoria v Commonwealth (1995) 187 CLR 416 ('Industrial Relations Act Case’).

136 Donald, R Rothwell, ‘The High Court and the External Affairs Power: A Consideration of its Outer and Inner Limits’ (1993) 15 Adelaide Law Review 209, 237Google Scholar.

137 Tasmanian Dam Case (1983) 158 CLR 1, 127 (Mason J):

Accordingly it conforms to established principle to say that s 51(xxix) was framed as an enduring power in broad and general terms enabling the Parliament to legislate with respect to all aspects of Australia's participation in international affairs and of its relationship with other countries in a changing and developing world and in circumstances and situations that could not be easily foreseen in 1900.

Industrial Relations Act Case (1995) 187 CLR 416, 483 (Brennan CJ, Toohey J, Gaudron J, McHugh J, and Gummow J): ‘The treaties which were part of the subject matter of foreign relations in 1900, and the treaties that have since been made, embrace an ever-expanding range of topics.'

138 Rothwell, above n 136, 237:

Matters which are of international concern, or relate to an international obligation, may also form the basis of an ‘external affair'. However, with no majority of the Court having ever relied [to 1993] upon these grounds to uphold a Commonwealth law some uncertainty still exists as to the true extent of these bases. Much the same comment can be made in regard to reliance upon customary international law, general principles of international law, and matters which have been the subject of international recommendations.

139 See generally, Leslie, Zines, The High Court and the Constitution (5th ed, 2008) 393–403Google Scholar. In particular, Professor Zines argues, at 399: ‘It seems clear, therefore, that a law which on its face deals with relations between Australia and other governments is a law with respect to external affairs and it is irrelevant that there are no treaty or customary rules that the law implements.'

140 (1982) 153 CLR 168, 217 (Stephen J).

141 Tasmanian Dam Case (1983) 158 CLR 1, 130 (Mason J).

142 Ibid 260 (Deane J).

143 Ibid 232 (Brennan J).

144 Validity of legislation or executive action will be presumed, unless challenged and found without a constitutional basis: see Stenhouse v Coleman (1944) 69 CLR 457, 466 (Starke J), ‘Every legislative Act, regulation or order must find some warrant in the Constitution, though the presumption is in favor of validity.'

145 Zines, above n 139, 394.

146 See Susan, Kenny, ‘Constitutional Fact Ascertainment’ (1990) 1 Public Law Review 134, 162Google Scholar:

Unlike the [United States] Supreme Court, the High Court has, for most of its history, proved reluctant to acknowledge the relevance of facts in constitutional adjudications and even now, has not developed a coherent body of practicable principles to control ‘constitutional fact’ ascertainment.

Zines, above n 139, 656–7: ‘Because the presentation of social and economic material in the High Court is something of an unusual event, the procedures that are sometimes adopted are highly unsatisfactory'.

147 Breen v Sneddon (1961) 106 CLR 406, 411 (Dixon CJ).

148 Stenhouse v Coleman (1944) 69 CLR 457, 469 (Dixon J).

149 Thomas v Mowbray (2007) 233 CLR 307, 516–517 (Heydon J); Gerhardy v Brown (1984) 159 CLR 70.

150 Thomas v Mowbray (2007) 233 CLR 307, 482 (Callinan J).

151 Ibid 481 (Callinan J). Heydon J adds that the parties ought not only to be given notice of adverse findings (to which they may respond) but also notice ‘of why the finding should be made': at 513.

152 See Gerhardy v Brown (1984) 159 CLR 70, 142 (Brennan J).

153 Stenhouse v Coleman (1944) 69 CLR 457, 469 (Dixon J).

154 Compare Gerhardy v Brown (1984) 159 CLR 70, 138 (Brennan J).

155 Although little probative force will be given to recitals: Communist Party Case (1951) 83 CLR 1, 263 (Fullagar J).

156 See, eg, Keith Johnson, Climate Debate: IPCC Head Pachauri Joins the 350 Club (2009) Wall Street Journal <http://blogs.wsj.com/environmentalcapital/2009/08/25/climate-debate-ipcc-head-pachauri-joins-the-350-club/> at 31 August 2009.

157 For example, International Scientific Congress, above n 14, 18–21, 36: ‘… the need for rapid and drastic reductions in the emissions of greenhouse gases is urgent if serious climate impacts are to be avoided.’ It is worth reading this point in the context of Murphy J's statement in the Tasmanian Dam Case (1983) 158 CLR 1, 171: ‘… it is not necessary that the subject be one of concern demonstrated by the other nation States generally. For example, concern expressed by the world's scientific community or a significant part of it over action or inaction in Australia might be enough to bring a matter within Australian external affairs.'

158 See also Tasmanian Dam Case (1983) 158 CLR 1, 161–8 (Murphy J).

159 Kenny, above n 146, 165.

160 Zines, above n 139, 650: ‘To accept that rules of law can depend on facts is to invite a degree of instability. It must follow that a law declared valid can cease to be so when the material facts change.'

161 Ibid 656.