Climate of Exception: What Might a ‘Climate Emergency’ Mean in Law?
| Author | Bruce Lindsay |
| DOI | 10.22145/flr.38.2.4 |
| Published date | 01 June 2010 |
| Date | 01 June 2010 |
| Subject Matter | Article |
CLIMATE OF EXCEPTION: WHAT MIGHT A 'CLIMATE
EMERGENCY' MEAN IN LAW?
Bruce Lindsay*
'There had never been a death more foretold'
— Gabriel García Marquez, Chronicle of a Death Foretold
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'.1 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.
CLIMATE CHANGE
As a consequence of human action ('anthropogenic interference in the climate system'),
the natural cycle and variability of the Earth's climate, as it has evolved at least
throughout the period of human existence, is being significantly modified. Significant
natural variations have occurred previously in the Earth's climate system, including
during the course of human occupation. The most recent large-scale change was the ice
age that peaked at around 18 000 years ago and ended (with the present interglacial)
around 10 000 years BP. Smaller variations have occurred since. Climate change in the
industrial period (post–1750) is something altogether different and momentous.
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* BA (Hons), M Env Sc (Monash), PhD (ANU). I would like to thank the anonymous referees
for their comments and suggestions in review of the original paper.
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'.
256 Federal Law Review Volume 38
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Relevant human actions lie in emission of carbon-based 'greenhouse' gases ('GHGs')
since industrialisation, as well as actions such as widespread land-use changes (eg
land-clearing). The most important of these GHGs is carbon dioxide ('CO2'), especially
from the burning of fossil fuels such as coal and oil.2 Human actions in the last 200
years have therefore affected the balance of atmospheric GHGs by emitting otherwise
naturally 'sequestered' carbon into the atmosphere, as well as reducing or impairing
natural carbon 'sinks', especially in oceans and forests. Measured in terms of carbon
dioxide equivalence ('CO2-e'), levels of atmospheric carbon have risen from
approximately 280 parts per million ('ppm') in the pre-industrial era to around 380
ppm in 2005, well above what would have been expected to occur by natural
processes.3
Increased atmospheric CO2-e concentrations leads to 'global warming', by which is
meant changes in the 'energy balance of the climate system' leading to increased
average global temperatures (with regional variation). In turn, climate change has led
to, and will continue to lead to, adverse and catastrophic changes in ecological
systems, including sea level rise, melting of Arctic ice, melting of other icesheets and
permafrost, increase in ocean temperatures and acidity, greater regional propensity to
drought, flooding or other extreme natural events, and decreased productivity
(including CO2 absorption) of natural carbon 'sinks'. The Intergovernmental Panel on
Climate Change's ('IPCC') projected estimates for increase in global temperatures over
the 21st century range between 1.8ºC and 4.0ºC above pre-industrial levels, with 0.6ºC
already built into the warming trend because of inertia within the climate system.
Official policy reviews of climate change in the UK4 and in Australia5 have broadly
argued for stabilisation of GHGs at around 2-3°C, or approximately 450–550 ppm CO2-
e, although conceding that at these levels impacts will be 'severe'6 and 'could lead to
damaging climate change'.7 The position adopted by the Australian government, in
respect of medium-term targets to 2020, was a GHG concentration target of 'around
450 ppm' and 5–15 per cent reductions from 2000 levels,8 with the higher target being
adopted if a comparable international agreement can be reached.9
Spratt and Sutton have criticised these official positions as a 'new business as
usual',10 a project accepting the broad premises of climate change and a subsequent
need for action but limiting the extent of the problem and the required response.11 By
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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, 2.
3 Ibid.
4 Lord Nicholas Stern, The Economics of Climate Change (2006).
5 Ross Garnaut, The Garnaut Climate Change Review: Final Report (2008).
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) 4–1.
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
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