BUSINESS AND CORPORATION LAW
“Corporations and the environment”
Table of Contents
The continual damage that industrial functions and business processes have inflicted upon the environment has steadily increased the degree of awareness globally in terms of the responsibilities that corporations bear towards the environment. Considering the critical nature of Australia’s climatic conditions, the damage has become all the more prominent in the recent years. The current study highlights three recent case studies along with a critical discussion on emission trading schemes and their relevance to the modern business ecosystem.
Organizations certainly bear a number of responsibilities towards the environment, especially in terms of how they manifest both as a societal obligation along with a legally enforced duty. The recent years have also witnessed the stakeholders of businesses taking on a proactive approach in terms of depicting a certain degree of awareness in the context of favouring businesses that operate ethically and entail a low carbon footprint. One of the key responsibilities that businesses must manage is taking care of hazardous substances and by products that are generated due to the operational functions. Ranging from highly dangerous toxins to oils and chemicals, corporations must ensure that they are disposed off in an adequate manner and do not pose a threat to public safety and life.
The ecological subset of Corporate Social Responsibility has certainly become a key area of consideration for businesses in the wake of the detrimental impacts that climate change has had on the environment. Legislatures of everywhere throughout the world have kept up the rule of natural duty regarding guaranteeing ecological protection and the executives too (Richardson, 2016).The Australian geography is also home to a diverse array of flora and fauna that businesses must factor in while engaging within their functions. The “The Environment Protection and Biodiversity Conservation Act 1999 (Cth)” is the central legislation within the country that governs business as well as individuals in terms of limiting impacts on the environment over time (Department of Agriculture, Water and the Environment, 2020). Additionally, a number of local and territorial laws are also applicable throughout the various states of Australia that further strive to govern organizations in carrying out their operations in an environmentally friendly manner.
The use of renewable energy sources has also come to the forefront, especially within the resource intensive industries such as manufacturing. Dependence on conventional fuels has been proven to cause significant damage to the environment, and businesses must focus on incorporation green energy sources to ensure sustainability within their operations. While a shift in the paradigm has been evident, organizations certainly have a long way to go in terms of negating the impacts that have already harmed the environment.
Australia has witnessed a number of incidents involving a substantial amount of damage to the environment by corporations. Some of these have been presented as case studies and are as follows.
Flying Fox Case
In November 2000, the North Queensland Conservation Council Inc (NQCC) received information regarding a rancher in north Queensland who was resorting to elecrifying flying foxes to prevent damage to his lychee crop. Dr Carol Booth examined the site and found a progression of 14 airborne electric networks developed inside a 60 hectare lychee plantation on the property. When flying foxes slam into the wires, they received a high voltage shock and were instantly killed. Dr Booth recorded more than four evenings the passing of 300 to 500 Spectacled Flying Foxes every night on the electric lattice framework (Lavery & Kirkpatrick, 2010).
Despite the fact that not recorded as uncommon or undermined, the Spectacled Flying Fox is a secured creature under the “Nature Conservation Act 1992 (Qld)” and it is an offense as provided within Section 88 of the statute without approved grants under the Nature Conservation Regulation 1994 (Qld) (Nature Conservation Act 1992 (Qld), 2020). NOCC gained from QPWS that no license had been given for the taking of Spectacled Flying Foxes on the homestead being referred to. NQCC then mentioned that OPWS make a move to stop the executing of Spectacled Flying Foxes at the homestead. It was presented that the legal capacity to give a prohibitory directive under Section 475(2) and make a noteworthy request under Section 475(3) of the EPBC was at the court's tact in the entirety of the important realities and conditions of the case (Mackie et al, 2017).
Nathan Dam case
In 2002 Sudaw Developments Ltd put forward a proposition under the EPBC Act to build a 880,000 megalitre dam called Nathan Dam on the Dawson River in focal Queensland. The Dawson River joins the Mackenzie River to become the Fitzroy River, which streams east to the coast and the Great Barrier Reef World Heritage Area (GBRWHA) close to Rockhampton (Hepburn, 2016). The Nathan Dam's significant reason for existing was to gracefully water system water to 30,000 hectares of farmland, for the most part to develop cotton, in the lower Dawson River Valley and to help other advancement in the locale. Significant concerns were raised by the Queensland Conservation Council (QCC), World Wide Fund for Nature (Australia) (WWF) and Incredible Barrier Reef Marine Park Authority (GBRMPA) in regards to the effects of the dam and related farming advancement on the GBRWHA.
In spite of the worries raised by the QCC, WWF and the GBRMPA about the effects of the related downstream farming advancement on the GBRWHA, the Australian Government Minister for the Environment and Heritage (the Federal Environment Pastor) would not think about these effects The QCC and WWF looked for legal audit of the Federal Environment Minister's refusal to think about these effects under the Administrative Decisions (Judicial Review) Act 1977 (Cth). The grounds of survey asserted that the inability to consider the effects of the related downstream improvement comprised a blunder of law and inability to take into account applicable contemplations (Mcgrath, 2016).The activity depended upon the broadened standing gave by Section 487 of the EPBC Act.
The choice to dismiss the Federal Environment Minister's methodology doesn't conclusively stop the Nathan Dam being constructed (that issue despite everything must be chosen under the EPBC Act), however the choice will assist with guaranteeing that a legitimate appraisal is made of the probable effects of the dam in concluding whether to construct it or not. At its heart, the choice is simply rational: a leader can't survey the effects of an undertaking without taking a gander at what it is being worked for (Morris, 2019). Enormous framework activities, for example, dams, ports, streets and force stations that encourage different turns of events, just as asset improvement, for example, coal mining, will be generally influenced by this choice. The standards set up for the situation are extensively predictable with different territories of Australian law and universal practice yet the impact of the choice on other Australian purviews is likewise being felt.
Wildlife Whitsunday Case
On 15 June 2006, the Federal Court excused a case concerning ozone harming substance emanations from two enormous coal mines. For the situation a North Queensland protection gathering, Wildlife Whitsunday, looked for a legal audit of two choices by an agent of the Federal Environment Minister over the thought of ozone harming substance outflows from the mining, transport, and utilization of the coal from two enormous coal mineshafts in Queensland. The mines are required to create 48 million tons (Mt) of dark coal for trade throughout the following 15 years (Schuijers et al, 2017)
The choices tested for this situation were made under the “Environment Protection, what's more, Biodiversity Conservation Act 1999” (EPBC Act). The trigger for evaluation under the EPBC Act is whether an activity has, will have, or is probably going to have a critical sway on an issue ensured by the Act, for example, the world legacy estimations of a proclaimed World Heritage property.
The case-based upon the standards from the Nathan Dam Case, in which the Government Court administered the Minister, is required to consider immediate and roundabout effects of activities, including downstream effects of a dam because of ranchers utilizing water from the dam. Applying this guideline in “Australian Conservation Foundation v Minister for Planning  VCAT 2029; (2004) LGERA 100,” the Victorian Civil and Authoritative Tribunal found that an arranging plan revision to permit the development of a coal mine shaft was required to think about the backhanded effects of nursery gas outflows coming about because of the consuming of the coal at a force station (ELAW, 2020).
According to the Environmental Law and practice in Australia, the case falls under Tier 1 Offences, where it involves penalty in the order of (Jukic &Young, 2020):
Emissions trading schemes have gained worldwide popularity in terms of a market based approach that strives to limit environmental pollution based on economic incentives. ETS’ refer to government stipulated permits that allow corporations to discharge a certain quantity of pollutants over a period. ETS’ are aligned with the concept of financially motivation corporations to reduce their environmental impact through pollutions, and while the concept has been criticized over time, they have been proven to be relatively successful in specific situation with the European Union being a major example (Ellerman, Marcantonini & Zaklan, 2016). Australia has also introduced emissions trading schemes as a cap and trade scheme where annual caps are stipulated by the Federal government. The price for permit in terms of each tonne of carbon is currently fixed at $24.50.
The majority arguments that have supported emissions trading schemes globally are predominantly focused on how they involve governmental intervention that is somewhat proactive in terms of limiting the environmental impacts of corporations. International carbon markets have also grown immensely along with a simultaneous development of green energy technologies that market themselves as an alternative to businesses spending their resource pools on obtaining the carbon permits. Furthermore, it allows corporations to limit the pollution based on specific areas along with a re allocation of resources. ETS’ also entail a specific governmental directive and entails a legal liability in the case of a violation (Burtraw & Themann, 2018). Another major argument for ETS has been along the lines of how it fits relatively well in line with a number of economic and political contexts. Moreover, the revenue generation aspect in terms of how it can become an additional source for the government to pull in funds has also been a key highlight as to why it has increasingly gained prevalence globally.
Despite the aforementioned advantages and highlighted benefits, ETS have also come under a considerable amount of public lash back. The most prominent reasoning behind the same has been the excessively low carbon prices and how they tend to undermine other climate and emission control policies. Furthermore, corporations those operate on a large scale and command a significant amount of influence over the market system have been shown to obtain the permits in a relatively easy manner, which essentially negates the sole purpose of the permits to limit carbon emissions (Cammody, 2019. Another major argument against ETS is related to how they set a ceiling on the ambitions involved in tackling climate change. The concept of a zero emission policy is essentially undermined and companies can pay their way into emitting pollutants. Furthermore, the aspect of how ETS’ are funded through taxpayers’ money is also a key argument that has brought about criticism for the concept (Eichhammer et al. 2018). Activist organizations around the world, especially in the European Union, have for long maintained how ETS fundamentally subsidize polluters on the behest of public funds.
In conclusion, the key responsibilities that organizations bear to the environment were found to be aligned with the regulation of the polluting chemicals and toxins along with preventing harm to the natural flora and fauna. Climate change was also identified as one of the most pressing issues in the modern era, which subsequently led to the enforcement of a number of governmental initiatives. Three case studies involving the Nathan Dam, Wildlife Whitsunday and the Flying Fox were incorporated to depict the relevance of environmental protectionism from a commercial perspective. Furthermore, emissions trading schemes were also discussed in a critical fashion including argument for as well as against them and how they find relevance to the modern business ecosystem.
Burtraw, D. and Themann, M., 2018. Pricing Carbon Effectively: Lessons from the European Emissions Trading System
Carmody, C., 2019. A Guide to Emissions Trading under the Western Climate Initiative. Can.-USLJ, 43, p.148.
Department of Agriculture, Water and the Environment, 2020, Environment Protection and Biodiversity Conservation Act 1999 (EPBC Act), viewed 22 May 2020, <https://www.environment.gov.au/epbc>
Eichhammer, W., Friedrichsen, N., Healy, S. and Schumacher, K., 2018. Impacts of the allocation mechanism under the third phase of the European emission trading scheme. Energies, 11(6), p.1443..
ELAW, 2020, Australian Conservation Foundation v. Minister for Planning  VCAT 2029, viewed 22 May 2020, <https://elaw.org/au.hazelwood.2004>
Ellerman, A.D., Marcantonini, C. & Zaklan, A., 2016. The European Union emissions trading system: ten years and counting. Review of Environmental Economics and Policy, 10(1), pp.89-107.
Hepburn, S., 2016. What we stand to lose in changes to the Environment Act. Green Left Weekly, (1117), p.10.
Jukic, E. and Young, M.A., 2020. Australia and International Environmental Law in 2019. forthcoming in Yearbook of International Law, 30.
Lavery, H. and Kirkpatrick, T., 2010. Environmental management and wildlife in Queensland: a review of Queensland mammal species designated as scarce. Queensland Environmental Practice Reporter, 16(73), pp.103-119.
Mackie, J.T., Stenner, R., Gillett, A.K., Barbosa, A., Ryan, U. and Irwin, P.J., 2017. Trypanosomiasis in an Australian little red flying fox (Pteropusscapulatus). Australian veterinary journal, 95(7), pp.259-261.
McGrath, C., 2016. Federal environmental laws consider direct and indirect impacts of an action.
Morris, C.R., Stewardson, M.J., Finlayson, B.L. and Godden, L.C., 2019. Managing Cumulative Effects of Farm Dams in Southeastern Australia. Journal of Water Resources Planning and Management, 145(3), p.05019003.
Nature Conservation Act 1992 (Qld), 2020, viewed 22 May 2020, <https://www.legislation.qld.gov.au/view/pdf/2017-07-03/act-1992-020>
Richardson, B.J., 2016. Resourcing ecological restoration: the legal context for commercial initiatives. Restoration Ecology, 24(5), pp.686-691.
Schuijers, L., Massai, L., Dumon, C. and Olawuyi, D.S., 2017. Current Developments in Carbon & Climate Law. Carbon & Climate Law Review, pp.64-78.
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