Federal Court Grants Injunction to Stop the Logging in Central Highlands: Friends of Leadbeater's Possum Inc v VicForests (No 3)  FCA 652.
On Thursday afternoon, the Federal Court of Australia granted an interim injunction to prevent VicForests from carrying out forestry operations in five different Victorian coupes known to be home to Greater Gliders. This order is quite timely, as VicForests initially planned to commence logging operations in these areas today.
The Polish Supreme Audit Office has estimated a potential penalty of more than 4 billion PLN (approximately 1.5 billion AUD), pending a decision of the European Court of Justice on whether Poland has broken pollution laws by having illegal amounts of PM10 emissions.
There has been a growing concern for the cleanliness of air in Poland, which is a matter partly governed by the directives of the European Union.
Poland is a Member State of the European Union and, therefore, a ‘directive shall be binding … upon' it (art 288 of the Treaty on the Functioning of the European Union). Directives, as opposed to regulations, do not govern the way that a member state is to act, rather they dictate a desired result and ‘leave to the national authorities the choice of form and methods.’
The Cleaner Air for Europe Directive, 2008/50/EC (‘CAFE’) requires that member states develop their own standards and objectives in regards to those states’ own concentration of air pollutants. One particular air pollutant — the one which the case of Poland before the ECJ currently concerns — is PM10.
CAFE describes PM10 emissions as being ‘particulate matter which passes through a size-selective inlet … with a 50 % efficiency cut-off at 10 µm aerodynamic diameter’. In other words, PM10 is a form of airborne particle emission that has an aerodynamic diameter of less than 10 microns (for a sense of perspective, the average thickness of a strand of human hair is around 70 microns). These emissions generally consist of a mixture of very small liquid and solid particles such as dust, smoke, soot, salt, acids and metals. The PM10 pollution in Poland is predominantly caused by low-stack emissions (emissions from sources with a height lower than 40m) from household heating. This 'makes Poland’s air the most polluted in Europe, according to local government data.'
PM10 environmental pollution is among the most harmful of all air pollutants and is capable of having negative consequences on health as well as damaging the environment.
Pollutants with larger particulate matter tend to get trapped in the nose, mouth or throat. However, PM10 — as a ‘respirable particle’ — is small enough to evade the respiratory system’s natural defences and become lodged in the deepest part of the lungs. PM10 can have particular negative repercussions on persons suffering from asthma, cause various lung diseases such as bronchitis and render the body’s immune system more vulnerable to infections.
PM10 pollution is also capable of causing local environmental damage, including damage to plants, materials and buildings. Research also suggests that PM10 can have adverse effects at the global level by contributing to global warming due to a decrease the capacity for atmospheric solar reflection. PM10 can also cause much of the haze that obscures natural landscapes, such as national parks and forests.
The European Commission filed a complaint against Poland in 2016, asserting that Poland had failed to comply with the daily limits for PM10 emissions outlined in CAFE. The commission submitted that the legislative and administrative measures taken so far to limit this persisting non-compliance with its air quality standards under the Directive have not been sufficient.
Małgorzata Smolak, an expert on European environmental law, has stated that 'this is ultimately down to an inadequate air quality plan that doesn’t put effective limits on emissions.'
If the European Court of Justice determines that Poland has not complied with its obligations under CAFE regarding PM10 emissions and that Poland has not taken adequate measures to address this issue, the Polish Supreme Audit Office has estimated that the Member State might be liable to pay more than 4 billion PLN (approximately 1.5 billion AUD).
Although not a member of the EU, America has implemented policy initiatives to reduce PM10 emissions by reducing windblown dust particles into the atmosphere at construction sites by creating barriers and creating programs to reduce emission from wood stoves and fireplaces.
PM10 pollution is also a large issue in Australia, with a lot of the emissions being contributed to by particulate matter in the form of woodsmoke from woodheaters. To combat this and to comply with the Australian Standard for woodheater particle emissions, Australia has made efforts to work with State governments and the woodheater industry to improve woodheater technology. This is accompanied by promotion of alternative fuels, travel by public transport and the development of pollution forecasting systems.
There is still much that needs to be done in both EU and non-EU countries. Hopefully the ECJ’s decision will direct countries to the importance of reducing particulate emissions and promoting better air quality. VELSN will be sure to provide an update on the outcome of the case, the decision of which is due to be released in February.
Ken Kiat and Jake Herd
Ken and Jake are JD students at the University of Melbourne.
Media and Communications Officer, Erin Meeking, spoke with Rigby Cooke’s Megan Schroor to discuss her career, the practice, and her advice for those seeking to commence a career in planning and environment.
Megan Schroor is a Senior Associate in Rigby Cooke’s Planning and Environment team, with more than twelve years’ experience in a wide range of planning and environmental law issues affecting development across Victoria. Last year, for her work in the practice, Megan was recognised in Doyle’s Guide as one of eight ‘Rising Stars’ practising in Planning and Environment law in Victoria. Megan has acted for developers, private land owners, objectors and government clients in proceedings at VCAT and at panel hearings, and has extensive experience in the planning, environmental and road access issues associated with freeway service centres and petrol stations.
We’d love to know a little more about you, could you tell us a little about your career and your role at Rigby Cooke Lawyers?
I come from an art background. I majored in visual arts at University and then worked in art galleries for a few years before returning to University to study law. After graduating, I began my career as an articled clerk at Clayton Utz. We did three rotations during our Articles and Planning and Environment was the last team I rotated through. So, Planning and Environment law was very new to me… but fascinating!
Since joining the Planning and Environment team at Rigby Cooke Lawyers in 2011, I have worked on a range of planning and environment matters involving: residential, commercial and mixed-use development proposals; quarry and landfill proposals; freeway service centre and petrol station proposals; rural and greenfield subdivisions; restrictive covenant removals and variations; agricultural/industrial land use proposals; Environmental Effects Statements for major infrastructure projects such as the Melbourne Metro Rail Project; prosecutions and enforcement actions relating to various matters including unlawful removal of native vegetation and air pollution; and investigations into breaches of the Environment Protection and Biodiversity Conservation Act 1988.
What does it mean to work in planning and environmental law in your firm?
As a Planning and Environment lawyer at Rigby Cooke, you find yourself involved in a truly diverse variety of matters. Our clients range from experienced developers of multi-storey apartment buildings in inner-Melbourne to individual land owners seeking advice on how to develop their land and negotiate their way around a complex and multi-layered regulatory system. Our clients include secondary and tertiary educational institutions, farmers, statutory authorities, hospitality industry operators, caravan park operators, mattress recyclers and waste management/landfill operators. We provide advice on environmental and planning obligations, represent clients at VCAT and in panel and advisory committee hearings and assist with negotiating and drafting agreements.
What initially drew you to a career in law, and to environmental law in particular?
I went back to University after completing an Arts degree because I wanted a job I would find more intellectually stimulating. I chose Planning and Environment law (as opposed to Banking & Finance, Mergers & Acquisition, Insolvency etc.) because I found it easy to relate to and because it gave me an opportunity to be involved in processes which would lead to changes in my immediate physical environment (at a local, State or national level).
What is the most rewarding aspect of your position and what has been your own personal highlight of your career?
There have been many highlights in my career so far, but some that come to mind include:
• helping some residents in rural Victoria successfully take enforcement action against a cattle feedlot operation which was causing serious air pollution (overwhelming odour, dust and insect infestation) in and around their home;
• assisting the Department of Health and Human Services and Melbourne Health to reduce the height of a proposed residential tower opposite the Royal Melbourne Hospital which threatened the ongoing safe operation of the emergency services helipad; and
• advising a client in relation to environmental conditions on a planning permit which required him to construct a series of wetland ponds on the perimeter of his commercial development. The purpose of the ponds (which added some significant cost to the development) was to encourage breeding of the Growling Grass Frog, an endangered species in the vicinity of the site. Two years after the development was completed, he sent me a jubilant text message which said: “They’ve found tadpoles in our frog ponds!”
What do you think is the greatest challenge for the practice of environmental law?
Our understanding of the environmental impact of what we do and how we live is constantly evolving. A significant and ongoing challenge for the practice of environmental law is how to continue to respond in a measured and effective way to environmental issues and threats as they are identified.
Have you faced any negativity for choosing to pursue an environmentally focussed career?
Occasionally, but not often, people are suspicious of what we do because many of our clients are developers and they assume that developers have less concern for the surrounding environment. In my experience, our developer clients are genuinely concerned about meeting their obligations and ensuring their developments have a positive environmental outcome, so I find this rewarding rather than challenging.
Noting your experience with environmental and road access issues associated with freeway service centres and petrol stations, what draws you to this area and what do you find such cases involve?
It is really by chance that I started working on these types of developments, but freeway service centres are a classic example of what I enjoy about Planning and Environment law. I have young children and we often stop at freeway service centres when we are on holiday so the kids can play and we can stretch our legs. Understanding the road safety benefits of providing an opportunity for drivers to stop and take a break, and knowing how difficult it is to obtain a planning permit to use and develop land with a freeway service centre, has given me a fresh perspective on what many people might dismiss as “just another petrol station”.
The strict parameters within which such developments are established (and must operate) is also something many people may not appreciate. And, because freeway service centres are generally established in rural and semi-rural areas, environmental issues are often quite difficult to navigate. Environmental obligations such as planting of native vegetation and creation habitat for threatened species can be onerous and often add substantially to the cost of development.
What advice would you give for those seeking to pursue a career in the field of planning and environmental law?
Take any opportunities you can find for work experience in a P&E team or with a P&E barrister.
Choose a planning and/or environmental law subject as an elective, if it’s on offer at your university. This is certainly not essential, but it will give you a sense of the sort of work you will be doing when you practise in the area.
Think about where your interest in environmental law lies – are you more interested in land and groundwater contamination? Greenhouse gas emissions and mining? Impacts on amenity from air pollution and noise? Biodiversity, native vegetation or the built environment? Different firms and different practice groups specialise in different areas, so deciding what you’re interested in can help you decide who to target.
If there are any particular issues you are interested in, read some relevant Tribunal decisions on Austlii – this will give you a real flavour for how a case is argued, what points of law might arise and what sort of evidence might be led in support of (or in opposition to) a proposal.
What skills and attributes do you think are necessary for success as an environmental lawyer?
A good environmental lawyer must have the skills any good lawyer needs, such as an ability to think critically and problem solve, to think strategically and commercially but with good attention to detail, strong writing skills and an ability to relate well to people (not only clients, but colleagues, consultants).
Good environmental lawyers should also be motivated to achieve good environmental outcomes, should be able to read plans and understand highly technical documents which are outside their immediate field of experience.
For more information, or to contact Megan Schroor please see http://www.rigbycooke.com.au/people/megan-schroor.
Media and Communications Officer, Erin Meeking, met with Professor Don Anton this summer to discuss his career, international environmental law, breaking into the field, and the future of the practice.
Don is a leading public international lawyer and Chair in International at Griffith Law School. Maintaining an active international law practice, he has served as Counsel to the International Union for the Conservation of Nature (IUCN) before the International Tribunal for the Law of the Sea, and in such cases as Chevron v Donziger and Kiobel v Royal Dutch Petroleum. He consults regularly with government and international organisations on matters of international law, and is active in various international law bodies. Don was also Director of Policy and Senior Solicitor with the Environmental Defenders Office from 1997-2000.
To start, could you please tell us a bit about your current roles and those organisations?
Currently, I hold the inaugural Chair in International Law at Griffith Law School. I am also serving as the Acting Director of the Law Futures Centre at Griffith University. The Law Futures Centre is geared around four programs, one of which is Law and Nature and one of which is Law and Global Change. So the synergies between international law and the natural environment are prominent in the Centre.
What drew you to a career in international public law, and environmental law specifically?
Interestingly, in law school I studied neither international law nor environmental law. I had no interest in those subjects, but was more interested in estate planning and tax. Once I got out into practice I found that those areas really weren’t of strong interest to me. Luckily, the law being what it is, it provides an opportunity to reinvent yourself; to branch out and find new interests.
I graduated from law school in 1986, and in 1988 we had the Chernobyl incident which peaked my interest in international environmental law because of the harm that was caused from radioactive fallout. It seemed to me that law was inadequate in providing transboundary environmental protection or in establishing responsibility for transboundary environmental harm. Of course, we had the first global environmental meeting of the international community takes place in Stockholm in 1972, but the development of international law in this area really didn't take off until after the Chernobyl Incident in the lead up to the 1992 Rio Conference on Environment and Development. At that point, the proliferation of international environmental law-making really took off, but it was really Chernobyl that sparked my interest in further studies and in educating myself in environmental and international law.
What do you believe to be the greatest challenge you have faced whilst working in environmental law?
Perhaps the greatest challenge was breaking into the field. I didn’t study international law or environmental law, so had no expertise and, indeed, was largely ignorant in approaching the field and in attempting to recreate myself as an international environmental lawyer. Serendipity plays a large part in everyone’s career; there is no doubt about it. For me, I came to Australia in order to pursue international environmental law. I had never been to Australia and didn’t know anyone in Australia, but still came in 1991 on scholarships to study international environmental law as it was emerging.
Almost immediately after arriving in Sydney, I heard about the NSW Environmental Defenders Office, Australia’s biggest public interest environmental law firm, and began volunteering. People working there were generous with their time and advice, and welcomed whatever limited assistance I could provide. Many of the individuals I was working with at the time have gone on to do important things, including two individuals, Nicola Pain and Brian Preston, who went on to become judges on the Land and Environment Court in NSW. Those connections, and connections I made through the university, especially Ben Boar who was a professor of environmental law, were instrumental with helping me on my career path.
I also met my future wife at an early ANZSIL conference in Canberra in 1991. She is now Professor Penelope Matthew (Dean of Griffith Law School). But back then, unmarried, I decided to follow her to Columbia University where she was completing her doctorate. Through serendipity again, whilst I was there Lou Henken, one of the great international lawyers of the 21st century, hired me as his research assistant. It was through his generosity, and the generosity of those other individuals mentioned, that a path was opened for me to become an international environmental lawyer.
From my experience, breaking into the field and commencing a career is about creating your own opportunities; making yourself available; never saying no; and accepting all invitations (even those that do not pay). Especially at the start, it is important to say ‘yes’, even if the request sounds like pure drudgery.
Have you faced any negativity for choosing to pursue an environmentally focussed career?
Whilst I was Director of Policy and Senior Solicitor at the Environmental Defenders Office (EDO) our funding was always under threat. In 1997, the ability to use our funding was significantly limited by the Commonwealth Government. We were prohibited from using Commonwealth funding for litigation-related activity, the very purpose for which the EDO was created. This was the largest part of our budget at that time, and was instead directed towards community education about environmental law and rights.
I haven’t personally been threatened. That said, I am also a member of the Environmental Law Alliance Worldwide (ELAW), comprising public interest environmental lawyers and scientists from over 60 countries. ELAW is a closed network where we attempt to leverage legal and scientific expertise to try and give public interest lawyers around the world some parity in public interest litigation as they go up against major law firms who have significantly more resources. I know individuals in the ELAW have been threatened physically, have been subject to ‘slapsuits’ and defamation actions, and whose lives have been in danger. Depending where you live, there is the potential for personal safety to be threatened.
What do you believe is the most rewarding aspect of your positions?
I think it is maintaining an active law practice and combining that with teaching. All my practice is pro bono, and I have been involved in some significant litigation involving human rights and the environment. Seeing students make connections between practice and teaching through the cases have been some of the most heart-warming aspects of my position.
New areas of environmental law are developing all of the time (for example, the current tribunals for the rights of nature), what are your suggestions regarding becoming involved in the frontier areas of the law?
I’ll reiterate basic points I’ve already made: Read. Write. Publish. Volunteer. Make yourself an expert.
Do you feel that the Australia Government is paying enough weight to environmental law?
Australia has been a pioneer in developing environmental law and environmental law courts, and I would not say anything to disparage those efforts. Indeed, in 1992, Australia was the first country to appoint an ambassador for the environment to look after its global international environmental interest. Of course, that no longer exists but it was a great idea and should be revisited.
More generally, environmental law gets the lip service of government, but its effectiveness is often in doubt. By effective, I mean that we are able to measure tangible environmental improvements – or at least the cessation of damage – attributable to environmental law and regulation on the books. Effectiveness, in this sense, is a very measurable thing.
Much of our environmental law does not have that sort of effectiveness. It may operate as intended on paper, but almost all environmental indicators continue to show environmental decline year after year. Part of the problem is that environmental law is a procedural area of law, rather than a substantive area of law; it requires us to jump through hoops and meet certain guidelines, but almost never imposes absolute limits. Decision-makers must weigh potential environmental harm as a factor in approving a development, but in the end environmental law allows the decision maker to exercise discretion to allow a development that will clearly harm the environment, so long as procedures required by environmental law are followed. Clearly procedure isn’t enough. I think we need to be establishing substantive environmental limits on development to ensure effective environmental protection.
Climate change is an area of environmental law where we are particularly failing in Australia. We don’t do enough and we tend to ignore the issue. My generation, especially, is failing our future generations.
In your opinion, what is the greatest challenge facing the practice of environmental law into the future?
Generally, the greatest challenge for the practice is addressing climate change and the challenges it presents. Of that, I have no doubt.
Do you think the law is lagging behind current scientific understandings of the environment, eg. The capacity of intelligence of plants and animals, and if so how do you think these areas will develop over time?
Law is a conservative creature. It tends to lag behind social and scientific development because of its nature. In environmental law one technique that has been developed, which is highly important and closely tied to scientific development, is that we usually establish monitoring requirements we permit development. The potential for adaptation can be built into permits and licences and other approvals so that we can take developments in science into account and change, as necessary, to meet the changing needs of the environment. Changing the law is, of course, more difficult and politicians can refuse to change the law to meet new science and evidence. There, accountability is had at the ballot box.
For our members, what one bit of advice do you have for students seeking to break into environmental law?
First, you need to define what you believe environmental law is and what an environmental lawyer does. We might say at a superficial level that an “environmental lawyer responds to environmental protection goals and requirements from the perspective of his or her specific client". This legal work usually places the environmental lawyer in the midst of a contentious process concerning standards of conduct that govern proposed activities that will (or may) have significant environmental impacts.
To describe an environmental lawyer in this general way, however, is to present a bland description of him or her as merely a "hired gun", possessing no personal or environmental values. This description clearly does not accord with the idea of the environmental lawyer as one who does, in fact, speak for the trees; who does, in fact, try to ensure, through law, that economic and social priorities do not overwhelm society’s environmental values; who does, in fact, promote an ethic that affirms the right of our environmental heritage to a continued existence, and, at least in spots, a continued existence in a natural state.
In point of fact, however, only a small fraction of solicitors and barristers actually engage in a law practice that principally focuses on the protection of the natural environment in this way. The vast majority of so-called environmental lawyers would at least appear to do just the opposite; most seem to advise and represent polluters and developers seeking to avoid the rigours and requirements of environmental regulation or escape liability for environmental harm they have caused.
My point here, of course, is not that polluters and developers do not deserve legal representation (or that the lawyers who advise and represent them are bad people). Rather, my point is that a true environmental lawyer, properly so-called, uses the law to defend the environment.
But really, can things be as simple as this? The answer, of course, is no. While it is difficult to reconcile the role of a lawyer who serves a regulated entity (a polluter or developer) with the promotion of environmental quality -- must we conclude that lawyers serving these sorts of clients either: (i) are devoid of concern for environmental protection, or (ii) are compelled to set aside their environmental concern to provide effective representation to the regulated entity? This question is often distressing, particularly when pondered by idealistic young people contemplating a career in environmental law.
Before the question can be answered, its implicit premise should be examined. The premise is that any regulated entity is, by definition, opposed to environmental protection goals and their associated requirements. It is a "forces of good" versus "forces of evil" dichotomy, which is largely, if not entirely, false. It is usually both simplistic and erroneous to see a regulated entity's objectives as purely "anti-environmental", and thus to see its lawyer's environmental bona fides as completely lacking.
Indeed, in my early years in private practice I used to represent mining companies in the establishment of heap leach gold mines across North America. While I believe that my environmental commitment was just as strong then as it is now, I felt at the time that I would be able to influence better environmental outcomes working from the "inside" advising mining companies than by "ranting and raving" from the outside. My experience in this regard was largely mixed.
But the point I am trying to make, and the one that you should remember, is that a lawyers' basic role -- whether representing a government environmental department, a polluter or developer, or an environmental citizens group -- is to serve justice. This sensitivity to fair and equitable treatment and fundamental values -- both environmental and non-environmental -- and the responsibility to work to reconcile them when conflicts appear are hallmarks of lawyers toiling in the field of environmental law, no matter what side. And so, for me, a true environmental lawyer working to protect the environment, through his or her service to justice, is one that might be found anywhere.
Now breaking into the field, like starting anything that needs to be long-term and sustainable, is hard. It is especially tough when you are making decisions about family, where to live, what amount you need to live, whether you're comfortable raising your own salary, and so on.
Volunteering, networking, being entrepreneurial are all ways that you can get experience in order to establish a career. I’ll go back to what I said earlier. Breaking into the field is all about creating your own opportunities; making yourself available; never saying no; accepting all invitations; establishing reputation by publishing; getting yourself known by volunteering.
For more information, or to contact Don Anton, please see https://www.griffith.edu.au/criminology-law/griffith-law-school/staff/don-anton.
Media and Communications Officer, Erin Meeking, met with BestHooper’s Ian Pitt QC this summer to discuss his career as a planning and environmental lawyer, the future of the practice, and his advice for students of environmental law.
In practice since 1966, Ian is pre-eminent as an advocate in town planning, land compensation and related jurisdictions. He haspractised principally in the planning jurisdiction of the Victorian Civil and Administrative Tribunal, before rezoning and environment effects Panels and the Supreme Court of Victoria.
In 2016, Ian was again recognised as one of the preeminent leading Planning and Environment lawyers in Melbourne by Doyle's Guide, and ranked amongst the Best Lawyers in Australia for 2017. He has held positions as consultant solicitor to the Ministry of Planning and Environment, Local Government arbitrator, part-time Chairman of the Land Valuation Board of Review, lecturer, a seminar speaker and by taking silk in 2001.
Launching straight into it, could you please tell us a little about your career and your current role at BestHooper?
I have been at the firm now for 50 years, making a partner in 1972 and retiring as a senior partner in 2006. A lot has changed in that time, 25 years ago I was the entirety of the town planning practice. The firm now has 13 people who practice in whole or in part in that jurisdiction. My position at the firm now is that of Special Counsel.
What initially drew you to a career as a planning and environmental lawyer?
When I completed my articles the Firm used to act for the Melbourne Metropolitan Board of Works which, at that time, was the metropolitan planning authority as well as an authority with responsibilities for sewerage, drainage, water supply and main roads. Through this, I was able to work in compulsory acquisition as well as planning and a range of other matters. I found I enjoyed the practice of compulsory acquisition and town planning. Around 25 years ago, and after 25 years in practice, I decided that I would only practice in those jurisdictions and related jurisdictions.
What do believe to be the greatest challenge facing the practice of planning and environmental law?
When the Board of Works was the metropolitan planning authority it was able to easily integrate all aspects of development as it was the major infrastructure supplier and was able to coordinate those matters. It also acted above local municipal political considerations.
Overall, I think that this metropolitan perspective provided a much greater overview than local parochial interests and its loss is a significant loss. The change means that a lot of decisions that should be made on applications and on planning scheme amendments are being made either by panels or by the tribunal when really they shouldn’t have to progress that far.It means there is a lot more delay, and a lot more expense.
What do you believe is the future of the practice of planning and environmental law?
I think as long as we’re providing additional accommodation and infrastructure the jurisdiction will always be there. I cannot see a situation where there is not going to be a system of third party input, nor can I see decisions only being decided by ministerial or council fiat.
Do you think the environment is being adequately considered by the private sector?
No. I do not think that at governmental level, or as part of planning in general, that there’s an adequate focus on environmental issues including sustainability and the effects of climate change. I don’t think they are given the weighting that they should be given.
I guess it comes down to economics. You can provide for all these things, you can provide for better internal amenity, and you can provide for better public amenity, but it all comes at a cost. Ultimately the community has to decide where the line is to be drawn. At the moment especially a serious problem is housing affordability which is a very serious issue. Mandating better quality development will come at a cost.
What comments do you have for those students seeking to pursue a career in planning and environment law?
I think this is a very interesting area of the law, and I don’t think it is going away any time soon. With one exception, which happens to be family law, the practice deals largely with what is going to happen, rather than simply assessing the consequences of what has already happened. There is also the opportunity to propose better uses and better development.
For further information or to contact Ian Pitt QC, see www.besthooper.com.au/ian-pitt.