Publications

This is a searchable catalogue of the College's most recent books, book chapters, journal articles and working papers. The ANU College of Law also publishes a Research Paper Series on SSRN.

Problems in Human Rights and Transboundary Pollution

Problems in Human Rights and Transboundary Pollution

Author(s): Donald Anton

This "case study" was intended to be included in Anton & Shelton, Environmental Problems and Human Rights (Cambridge, 2011), but space limitations forced its omission from the printed text. Using the Application Instituting Proceedings in the International Court of Justice case involving Arial Herbicide Spraying (Ecuador v. Columbia) [2008] ICJ 4-28 General List No. 138 (March 31, 2008)(footnote omitted), this case study raises questions associated with human rights and international environmental law.

Read on SSRN

Centre: CLAH

Research theme: Environmental Law, Human Rights Law and Policy

Problems in Environmental Protection and Human Rights

Problems in Environmental Protection and Human Rights: A Human Right to the Environment

Author(s): Donald Anton

This "case study" was intended to be included in Anton & Shelton, Environmental Problems and Human Rights (Cambridge, 2011), but space limitations forced its omission from the printed text. The assertion of a human right to a healthy environment has persisted over the last 40 years. Here we examine the international guarantees and national guarantees that have developed. We also look at moves toward a Declaration on Human Rights and the Environment.

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Centre: CLAH

Research theme: Environmental Law, Human Rights Law and Policy

Governing Nanotechnology for Solar Fuels

Governing Nanotechnology for Solar Fuels: Towards a Jurisprudence of Global Artificial Photosynthesis

Author(s):

The carbon-based fossil fuels (chiefly oil, coal, and natural gas) implicated in anthropogenic climate change are sequestered outcomes of millions of years of natural photosynthesis. Many emerging areas of nanotechnology research are focusing on artificial photosynthesis as a long-term planetary renewable energy and carbon management option – by providing an alternative form of energy to both fossil fuels and biofuels and as a means of stabilizing atmospheric CO2. A macroscience Global Artificial Photosynthesis (GAP) Project, by allowing researchers to refine and enhance the process of photosynthesis, has the potential to become a valuable adjunct to or even supplant other bioenergy and biosequestration policy options. This article explores what lessons can be drawn from the governance of contemporary macroscience projects about the ethical and legal principles upon which a GAP project should be organized.

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Centre: CLAH

Research theme: Environmental Law

Book cover

Australian Coastal and Marine Law

Editor(s): Donald Rothwell, Rachel Baird

This book is a comprehensive guide to Australian coastal and marine law. Since the landmark enactment of the Seas and Submerged Lands Act 1973 (Cth), and the subsequent High Court decision in NSW v Commonwealth, there have been rapid developments in Australian coastal and marine law and policy. The Offshore Constitutional Settlement paved the way for offshore management between the Commonwealth, States and the Northern Territory, and from this foundation a raft of new environmental laws were adopted in the 1980s and 1990s, often promoted by international developments such as the 1982 United Nations Convention on the Law of the Sea, or through new marine pollution conventions adopted by the International Maritime Organisation. The book reflects upon how Australian law regulates and manages a range of environmental issues which arise in the coastal zone and the marine environment. 

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Research theme: Environmental Law, Regulatory Law and Policy

National Capital to Solar Capital, or Thinking Small and Imposing Premature Limits

Author(s): James Prest

The main point of my submission is that the Territory should avoid damaging its emerging renewable energy sector by prematurely imposing additional limitations on the scope and generosity of the FIT scheme created by the Act, either in the form of installed capacity limits or scheme caps.

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Centre: CLAH

Research theme: Environmental Law, Law, Governance and Development, Regulatory Law and Policy

Protecting Whales by Hue and Cry

Protecting Whales by Hue and Cry: Is There a Role for Non-State Actors in the Enforcement of International Law?

Author(s): Donald Anton

The 2009/10 whaling season in the Southern Ocean witnessed a dramatic escalation in the clashes between the Japanese whaling fleet and the Sea Shepherd Conservation Society. In January a collision between the Sea Shepherd’s Ady Gil and the Japanese whaler Shonan Maru No. 2 resulted in the sinking of the Ady Gil. Then in February the skipper of the Ady Gil, Pete Bethune, boarded the Shonan Maru No. 2 to effect a ‘citizen’s arrest’ of its Master whilst also presenting a demand for compensation. This paper considers the place, if any, for the sort of hue and cry enforcement of international law envisioned by Sea Shepherd.

Read on SSRN

Centre: CIPL

Research theme: Environmental Law

International Courts and Environmental Protection

(Book Review) International Courts and Environmental Protection

Author(s): Donald Anton

Stephens shows that there is more going on in international environmental dispute settlement than even many keen observers of the subject of international environmental law might realise. His book is an impressive blend of not only jurisprudence and analytical insight, but also a realistic nuts and bolts explanation of institutional and systemic frameworks.

Read on SSRN

Centre: CIPL

Research theme: Environmental Law

Whaling in the Antarctic

Whaling in the Antarctic (Australia v. Japan): A Backgrounder

Author(s): Donald Anton

On May 31, 2010, Australia filed its Application Instituting Proceedings against Japan in the Registry of the International Court of Justice (ICJ). The commencement of the action by Australia brings to a head the dispute (sometimes acrimonious) concerning Japan’s annual Southern Ocean whale hunt that has persisted over twenty years. In general terms, Australia alleges that the implementation of the Second Phase of the Japanese Whale Research Program under Special Permit in the Antarctic (JAPRA II) is a breach of obligations assumed by Japan under the International Convention for the Regulation of Whaling (“ICRW”), as well as its other international obligations under the Convention on International Trade in Endangered Species (CITES) and the Convention on Biological Diversity (CBD) for the preservation of marine mammals and the marine environment. This brief note outlines the allegations and offers a brief analysis.

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Centre: CIPL

Research theme: Environmental Law

Case Concerning Pulp Mills on the River Uruguay

Case Concerning Pulp Mills on the River Uruguay (Argentina v. Uruguay) (Judgment) [2010]

Author(s): Donald Anton

The Pulp Mills case is the latest in a series of environmental cases to find its way before the ICJ. Pulp Mills contributes to the development of international environmental law by confirming that that transboundary environmental impact assessment is part and parcel of general international law. It is true that deficiencies remain in connection with the nature, scope and content of the EIA (including public consultation). However, states planning projects that pose risks of significant transboundary environmental harm (or threaten shared natural resources) shoulder a significant obligation of due diligence to ensure the environment or resources are protected from harm.

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Centre: CIPL

Research theme: Environmental Law

The Australian Capital Territory and the Gungahlin Drive Freeway

The Australian Capital Territory and the Gungahlin Drive Freeway

Author(s): James Prest

Provides an account of the application of ACT and Commonwealth (i.e. federal) environmental impact assessment law, land use planning law, and nature reserves law in the case of the approval of the Gungahlin Drive Extension freeway in the ACT. This freeway was built through several prized urban bushland reserves in the ACT after a campaign to Save the Ridge and its points about the application of ACT environmental and planning laws were overriden with 'special' legislation in the form of the GDE Authorisation Act 2004. Chapter describes litigation over the freeway project in ACT and Federal Courts which was heard largely in 2004 and 2005. Questions of the subsequent reform (or regression?) of ACT law including the Planning and Development Act 2007 are considered. This case study is used as the starting point of a broader examination of defects in planning and development law in the ACT and the broader role of special legislation to facilitate major projects in Australian environmental law.

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Centre: CLAH

Research theme: Environmental Law, Law, Governance and Development, Regulatory Law and Policy

Book cover

Adaptation to Climate Change: Law and policy

Editor(s): Andrew Macintosh, Tim Bonyhady, Jan McDonald,

While climate policy has focused overwhelmingly on the science and on reducing emissions, policy makers are increasingly focused on how to adapt to changes are already “locked in”, changes that will bring significant social economic and environmental impacts. Adaptation will require technological innovation as well as behavioural and attitudinal change. This book covers the legal dimensions of adaptation and addresses challenges across sector interests. It considers whether existing regulatory and governance frameworks are supportive, adaptable or barriers to necessary change. The authors cover the key issues: sea level rise, planning; water security; climate justice; conservation regimes; the role of the courts; insurance; compensation; and the law of disasters.

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Research theme: Environmental Law

Book cover

Mills, Mines and Other Controversies: The Environmental Assessment of Major Projects

Editor(s): Andrew Macintosh, Tim Bonyhady

Major developments have the potential to generate significant economic benefit and substantial environmental damage – and major political controversies as local, State and federal governments become involved. Process can fracture all too easily as governments come under fierce and competing pressures. This book is concerned with whether environmental impact assessment is an effective vehicle for protecting the Australian environment when major projects are in play. It scrutinises a major development in each State and territory and shows what happened and why things happened, which processes worked and which didn’t, and the roles of the different layers of government. The case studies include the headline projects such as the Gunns Mill in the Tamar Valley, Queensland’s Traveston Dam, the dredging of Port Phillip Bay, the expansion of the McArthur River mine and the Gorgon Gas development of Barrow Island.

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Centre:

Research theme: Environmental Law

Sustainability and the Law: Climate Change, Energy and Urban Issues

Author(s): James Prest

This chapter describes ACT laws which require action towards improved environmental sustainability. It examines provisions to reduce carbon emissions and energy use, improve energy, transport and water efficiency, and requirements to consider the environment in decision making.

The Chapter covers Planning and Development Act 2007 (ACT), Environment Protection Act 1997, Electricity (National Scheme) Act 1997, Utilities Act 2000, Weathering the Change: the ACT Climate Change Strategy 2007-2025, ACT Electricity (Greenhouse Gas Emissions) Act 2004, Uranium Mining and Nuclear Facilities (Prohibitions) Act 1986 (NSW), Electricity Feed-in (Renewable Energy Premium) Act 2008, Solar access law, sustainability provisions in ACT Planning Law, Energy efficiency law including the Building Act 2004, Energy Star Ratings including Nationwide House Energy Rating Scheme, Building Sustainability Index (BASIX), energy efficiency performance ratings (EER) including EER and rental properties, Efficiency of Appliances. The Chapter also covers Planning law as it relates to urban water issues including Catchment protection, Water tanks, Water Efficiency and Labelling Standards (WELS).

The Chapter concludes by arguing that the ACT has a number of provisions scattered throughout the statute book which address the question of environmental sustainability, primarily through energy ratings, water efficiency measures and planning controls. However the extent to which these provisions might be said to provide a ‘best practice’ systematic and integrated framework for the attainment of improved levels of sustainability is certainly debateable. There is no overarching climate change response legislation, nor is there an overarching Sustainability Act which might require government decisions across portfolios to be made having regard to the principles of ESD.

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Centre:

Research theme: Environmental Law, Law, Governance and Development, Regulatory Law and Policy

The Environment Protection and Biodiversity Conservation Act 1999 (CTH): An Evaluation of its Cost-Effectiveness

Author(s): Andrew Macintosh

This article outlines the results of a broad cost-effectiveness analysis of the federal environmental impact assessment (EIA) regime under Environment Protection and Biodiversity Conservation Act 1999 (EPBC Act). Statistics on the operation of the EIA regime are reviewed and an analysis of the regime’s effectiveness in dealing with Australia’s main environmental threats is provided. Consideration is also given to any indirect benefits the regime may have generated. The identified environmental achievements of the EIA regime over the period July 2000 to 30 June 2008 are compared to its administration costs, which are estimated at $135 million – $220 million. The conclusion is reached that over the study period the EIA regime generated minor improvements in environmental outcomes at moderate to high cost.

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Centre:

Research theme: Administrative Law, Environmental Law, Law, Governance and Development

Australia's National Environmental Legislation: A Response to Early

Author(s): Andrew Macintosh

This article provides a critique of a paper by Gerard Early on the operation of the Environment Protection and Biodiversity Conservation Act 1999 (Cth) (EPBC Act). Early’s article presents the EPBC Act as world best practice environmental impact assessment (EIA) legislation and argues that it has produced significant improvements in environmental outcomes. The evidence suggests otherwise. The EPBC Act is deficient in a number of respects, particularly in relation to the structure of the EIA regime and listing processes concerning threatened biodiversity and heritage areas. This article outlines defects in Early’s analysis and in the EPBC Act more generally.

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Centre:

Research theme: Administrative Law, Environmental Law, Law, Governance and Development

The Garnaut Review’s Targets and Trajectories: A Critique

Author(s): Andrew Macintosh

The Garnaut Climate Change Review was the most comprehensive government inquiry into climate change that has ever been conducted in Australia. The Final Report of the Review was published in late September 2008 and contains an extensive list of recommendations on adaptation and abatement policy options. Most controversially, the Review argues that Australia’s climate response should be built around gaining an international consensus on stabilising the atmospheric concentration of greenhouse gases at 550 parts per million (ppm) of carbon dioxide equivalents (CO2-e). While arguing that a lower stabilisation target of “450 ppm or less” would better suit Australia’s interests, the Review concludes that anything significantly below 550 ppm is politically unrealistic. If there is a global agreement to pursue a 550 ppm outcome, the Review argues that Australia’s mid- and long-term targets should be to reduce emissions net of international trading by 10 per cent from 2000 levels by 2020, and 80 per cent by 2050. This article provides a critique of the Review’s mitigation recommendations, focusing on whether the proposed global and national targets are likely to lead to a 550 ppm outcome. It concludes that the international community, and especially Australia and other developed countries, should adopt abatement targets in excess of those proposed by the Review if there is a desire to keep the atmospheric concentration of greenhouse gases to 550 ppm.

Read on SSRN

Centre: CIPL

Research theme: Administrative Law, Environmental Law, Law, Governance and Development

The Garnaut Review’s Targets and Trajectories: A Critique

Author(s): Andrew Macintosh

The Garnaut Climate Change Review was the most comprehensive government inquiry into climate change that has ever been conducted in Australia. The Final Report of the Review was published in late September 2008 and contains an extensive list of recommendations on adaptation and abatement policy options. Most controversially, the Review argues that Australia’s climate response should be built around gaining an international consensus on stabilising the atmospheric concentration of greenhouse gases at 550 parts per million (ppm) of carbon dioxide equivalents (CO2-e). While arguing that a lower stabilisation target of “450 ppm or less” would better suit Australia’s interests, the Review concludes that anything significantly below 550 ppm is politically unrealistic. If there is a global agreement to pursue a 550 ppm outcome, the Review argues that Australia’s mid- and long-term targets should be to reduce emissions net of international trading by 10 per cent from 2000 levels by 2020, and 80 per cent by 2050. This article provides a critique of the Review’s mitigation recommendations, focusing on whether the proposed global and national targets are likely to lead to a 550 ppm outcome. It concludes that the international community, and especially Australia and other developed countries, should adopt abatement targets in excess of those proposed by the Review if there is a desire to keep the atmospheric concentration of greenhouse gases to 550 ppm.

Read on SSRN

Centre: CIPL

Research theme: Administrative Law, Environmental Law, Law, Governance and Development

The Muzzling of the Dingo Forest Mob

Author(s): James Prest

Article describes 1993 lawsuit in Supreme Court of NSW by Forestry Commission of NSW (Australia) against Helmut Aimann, Chris Sheed and other various anti-logging activists, including unnamed persons, seeking to restrain them from "trespassing" in a two publicly owned forests. Categorises this litigation as a SLAPP suit and provides a review of earlier Australian instances of litigation against public participation including against Greenpeace over Nufarm, and against the Aurora Hotel Action Group over demolition of heritage buildings in Adelaide.

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Centre:

Research theme: Environmental Law, Law, Governance and Development, Regulatory Law and Policy

Hearing Australian Aboriginal Voices on Neglect and Sustainability

Author(s):

The recent bushfires in Victoria, which took over 200 lives, paradoxically may have highlighted a positive aspect of Aboriginal culture highly relevant to concerns about the sustainability of global human society. Indigenous Australians, finding joy in few wants and a philosophy of the eternal perpetually resonating in the present (rather than some past Eden or future heaven), were able to continuously inhabit their harsh continent for over 10,000 years. They did so with an acute understanding of how to continuously adapt to achieve a balance between population, production and their impingement on the capacity of nature to deliver necessary ecosystem services indefinitely. This included a profound knowledge of how to live with frequent forest (bush) fires.

As global warming and adverse climate change (driven in large part by the needs of contemporary consumerist society) create unprecedented high temperatures and drought conditions over southern Australia (and increasing incidences of such deadly bushfires), it appears that our present industrialised civilisation may soon be at long odds to remain intact on the same land for a mere 500 years. Contemporary concerns about global social sustainability, in other words, create a further important reason why Aboriginal voices and perspectives should be expressed and heard.

Read on SSRN

Centre: CLAH

Research theme: Environmental Law

Sustainability and the Law: Climate Change, Energy and Urban Issues

Author(s): James Prest

This chapter describes ACT laws which require action towards improved environmental sustainability. It examines provisions to reduce carbon emissions and energy use, improve energy, transport and water efficiency, and requirements to consider the environment in decision making.

The Chapter covers Planning and Development Act 2007 (ACT), Environment Protection Act 1997, Electricity (National Scheme) Act 1997, Utilities Act 2000, Weathering the Change: the ACT Climate Change Strategy 2007-2025, ACT Electricity (Greenhouse Gas Emissions) Act 2004, Uranium Mining and Nuclear Facilities (Prohibitions) Act 1986 (NSW), Electricity Feed-in (Renewable Energy Premium) Act 2008, Solar access law, sustainability provisions in ACT Planning Law, Energy efficiency law including the Building Act 2004, Energy Star Ratings including Nationwide House Energy Rating Scheme, Building Sustainability Index (BASIX), energy efficiency performance ratings (EER) including EER and rental properties, Efficiency of Appliances. The Chapter also covers Planning law as it relates to urban water issues including Catchment protection, Water tanks, Water Efficiency and Labelling Standards (WELS).

The Chapter concludes by arguing that the ACT has a number of provisions scattered throughout the statute book which address the question of environmental sustainability, primarily through energy ratings, water efficiency measures and planning controls. However the extent to which these provisions might be said to provide a ‘best practice’ systematic and integrated framework for the attainment of improved levels of sustainability is certainly debateable. There is no overarching climate change response legislation, nor is there an overarching Sustainability Act which might require government decisions across portfolios to be made having regard to the principles of ESD.

Read on SSRN

Centre:

Research theme: Environmental Law, Law, Governance and Development, Regulatory Law and Policy

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