Abject failures of responsibility

You could see it in their eyes, hear it in their voices. Hit with a second massive drenching in a month, Northern Rivers people look dead tired, almost past caring. Suddenly, shockingly, the world they knew has gone and their future is an empty space.

No-one knows how to flood-proof or relocate large towns, or to house thousands of victims, or predict floods – it’s notoriously hard to forecast which side of a watershed rain will fall. Authorities are struggling to keep up appearances. Asked about extreme weather and climate change, politicians change the subject.

The federal budget is almost the last straw. We needed transformative measures addressing structural issues around climate, health, housing, aged care, social inequality and the like. Instead there were tax rebates and cash handouts to help people meet current living costs: a patch-up job with no sense of where it’s taking us beyond the next election.

The Australia Institute reported last week that fossil fuel subsidies in 2021-22 – including support for a “gas-fired recovery” and contentious carbon-capture projects – rose 12 per cent to $11.6 billion – well over double the government’s $4.8 billion Emergency Response Fund and over 50 times its outlay for the National Recovery and Resilience Agency.

Past government handouts came under a spotlight last week. A long-serving chair of the government’s Emissions Reduction Assurance Committee, ANU law professor Andrew Macintosh, made the explosive allegation that Australia’s carbon offset market, on which the government relies heavily for its claim to have lowered emissions, is little more than “a rort”.

The ABC and The Saturday Paper each reported Macintosh’s claim that over years arid-land graziers had been paid millions of dollars “to not chop down forests that were never going to be chopped down, to grow forests that are already there [and] to grow forests in places that will never sustain permanent forests”. Several plant carbon scientists supported Macintosh.

Emissions reduction minister Angus Taylor responded that a high demand for Australian carbon credits proved their integrity and that an inquiry had found those claims to be wrong. The inquiry was directed by Macintosh’s successor, David Byers, a former executive in the coal, gas and oil industries.

Sadly, these revelations are not a shock. When pressed on climate change issues, Coalition MPs from the prime minister down quickly dismiss them and move on – a stock response since the Howard years. Frustrated by political failure, some – notably Melbourne schoolgirl Anjali Sharma and seven of her friends – have turned to the courts.

Last May, Federal Court justice Mordecai Bromberg found in Sharma’s favour, accepting expert evidence that if we fail to limit warming, today’s young people face health danger from heat stress, substantial economic loss, and the loss of both the Great Barrier Reef and most of Australia’s eucalypt forest. “Australia will be lost and the world as we know it will be gone as well,” he said.

He declined to issue an injunction to stop environment minister Sussan Ley from approving a new NSW coal mine, but in a long, carefully-reasoned judgment found that in considering that approval she owed a duty of care to young people.

Bromberg’s finding will endure as a landmark in Australian tort law, referenced in future climate lawsuits. But to Ley, it was a red flag, and she quickly appealed.

In her defence Ley argued, as she has in other coal mine approvals, that if a proposed new mine was stopped from going ahead, “it is likely that a comparable amount of coal will be consumed in substitution of the proposed action’s coal.” Therefore, she argues, her decisions on these matters have no impact on global warming.

Australian legal jargon describes her approach as the Drug Dealers Defence, which roughly translates as “if I hadn’t sold the drugs, someone else would have”. It’s an oddly fitting description, given the addiction of people and their governments to fossil fuels. 

A fortnight ago the appeal judges handed down their decision. Ley got what she wanted, but at some cost to her credibility. All three judges allowed the appeal, each for different reasons, while also agreeing with Bromberg about the climate threat. In the words of Chief Justice James Allsop, the court accepted “the nature of the risks and the dangers from global warning, including the possible catastrophe that may engulf the world and humanity”.

This is a pretty pass: both judges and politicians admit a catastrophe is in the offing but apparently can do nothing to stop it. Litigants will have other ideas, as will a rising number of angry Australian voters. This story has a long way to go.

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