The Bald Hills Wind Farm Debacle
CLIMATE LAW IN AUSTRALIA, T. Bonyhady & P. Christoff, eds., Federation Press, 2009
32 Pages Posted: 22 May 2009 Last revised: 6 Aug 2009
Date Written: May 21, 2007
This Chapter describes the decision making of the former Commonwealth Environment Minister, Senator Ian Campbell, to refuse an application for approval of a large wind farm development under the Environment Protection and Biodiversity Conservation Act 1999 (Cth). The rejection of the Bald Hills wind farm was remarkable because the reason given for this decision to veto a renewable energy project promising considerable abatement of greenhouse emissions was to avoid the threat it was said to pose to the critically endangered orange-bellied parrot. The decision took participants in the wind energy industry by surprise. Other wind farms which had been subject to Commonwealth approval requirements had met little delay or obstruction.
The Chapter argues that the Bald Hills story says much about the Australian response to climate change. It provides a case study of Commonwealth decision making about a project with potential to reduce significant amounts of greenhouse gas emissions, in a situation where these benefits were juxtaposed with potential impacts on threatened biodiversity. It prompts many questions about the [former] Howard government’s legal and policy approach towards the energy supply challenges posed by climate change.
The Bald Hills story is best understood if we look beyond detailed scrutiny of the assessment process under Victorian and Commonwealth law, to review it in the broader landscape of recent decisions and policy regarding renewable energy. Crucial aspects of this context include the Federal government’s decision not to expand the Mandatory Renewable Energy Target, as well as Ministerial attempts to block the Denmark community wind farm in Western Australia, and the proposal for a National Code for Wind Farms which would have introduced additional scope for the Commonwealth to scrutinise wind energy because of local opposition. This context gives a more complete picture of recent Commonwealth decision making on renewable energy.
What does the Bald Hills incident tell us about the present state of climate law in Australia, particularly at the Commonwealth level? While the government desires to present the EPBC Act as “a world-class and innovative piece of environmental legislation”, a law that “has established Australia’s place as a world-leader in environmental legislation” the barest review of the EPBC Act indicates that it does little to directly tackle the question of climate change. The Bald Hills incident is just one illustration. In particular, it draws our attention to the fact that the EPBC Act does little to promote sustainable development by encouraging renewable energy installations. In terms of greenhouse gas abatement, the Act does nothing to require a decision maker to consider the positive benefits of a development. In fact, at present, it prohibits a decision maker from taking into account positive environmental benefits of a development. In deciding whether or not to approve a project that is subject to the Act, the Minister is specifically prohibited from considering any matters other than the controlling provision and the catch-all of “economic and social factors”. (see s.136(5)). Thus nothing in federal planning law exists to ensure that the benefits of renewable energy facilities in terms of greenhouse gas abatement are taken into account in the approval decision making process. Surely we must ask whether the EPBC Act is adequate given present scientific information and modelling about the consequences of overly cautious responses to climate change.
The Bald Hills incident also illustrates the broad discretion available to the Environment Minister in making decisions under the EPBC Act. Questions were raised about the impact of the proposed wind farm on endangered species. The problem is not that the Act enabled the Minister to examine the potential risk to the orange-bellied parrot. The argument is not that all projects with potential to reduce greenhouse emissions should be approved, regardless of their impact on threatened biodiversity. However the flaw in the Minister’s decision making was that an extremely remote possibility of significant impact on a threatened bird - the orange bellied parrot - was given weight out of all proportion to its true significance.
The difficulty is with politicisation of the planning and environmental approval decision-making process. Nevertheless, the court outcome, in which the matter was settled by consent, due to the weakness of the Minister’s position shows that inappropriate ministerial decision-making can in some cases be constrained by resort to the administrative law system. In this instance, review in the Federal Court was effective in having politicised decision-making overturned. The story underlines the need to retain access to the courts to litigate to ensure compliance with the law in administrative decision making. The EPBC amendments of December 2006 which removed pro-participation provisions, reintroducing the probability that third party litigants could be required to provide an undertaking as to damages when seeking an injunction, represent the reintroduction of a barrier that would prevent access to the courts to review suspect decision making.
The Bald Hills incident raises broader questions about the adequacy of Australian government’s legislative response to climate change. Energy law does not exist in a political vacuum. It articulates the policy intentions of the legislature and the government which dominates it. The range of Ministerial comments about wind power, when combined with Senator Campbell’s comments to the Estimates Committee reproduced at the beginning of this chapter, indicate the Howard government’s indifferent, ambivalent and at times antagonistic approach towards renewable energy. In Australia, we have only moved very slowly towards the introduction of a body of sustainable energy law.
Keywords: biodiversity law, energy law, renewable energy law, climate law, EPBC Act, endangered species, nuclear law, judicial review, bilateral agreements, wind energy law, wind farm approvals, Victoria, Australia, MRET, mandatory renewable energy target, greeenhouse gas abatement, mitigation, discretion
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