Climate Change: The final arbitrator; litigation.

Post by Anthony Cox

In a recent article Maurice Blackburn lawyer, Elizabeth O’Shea, advocated the blockage of a proposed new combination brown coal and natural gas power plant. This combination of coal and gas is called “syngas”.
Ms O’Shea justified her opposition on the basis that both coal and gas release various pollutants such as sulphur dioxide, nitrous oxides, mercury and particulates or dust. Primarily however, her opposition to the syngas plant is because climate change is real and the “coal industry [also] contributes disproportionately” to causing it.
Concurrently Maurice Blackburn’s rival in class actions, Slater & Gordon, is considering a class action against the Wivenhoe dam operators. To succeed in such a claim Slater and Gordon will have to prove man-made climate change [AGW] is not real.
Why is that?
Much of the analysis of the Wivenhoe dam’s involvement in the catastrophic Queensland flood is based on whether the dam operators, SEQwater, followed the “manual” which deals with water release. The manual prescribes 4 levels of water release from W1 to W4 with W4 being the greatest. W4 would only occur when the dam integrity is threatened.
But whether SEQwater released water “by the manual” is irrelevant. Wivenhoe dam was constructed as a response to the 1974 floods. It was built as a flood mitigator. At the time of the 2010 flood Wivenhoe was at a 100%supply level. If it had not been full it could have performed its intended role as a flood mitigator and whether the water releases were “by the manual” or not would be moot because no releases would have had to be done.
The dam was full because AGW predictions were that drought was going to prevail.
Legally, therefore, SEQwater may rely on AGW being real in which case having Wivenhoe full was a reasonable precaution against the predicted droughts and the water releases were the best that could be done with a full dam. The plaintiffs will have to prove otherwise.
This should make for lively banter at the next meeting of the Entrepreneurial Litigation Association.
Ms O’Shea also relies on the precautionary principle as described in the Victorian Environmental protection Act 1970, Section 1C. Again, in respect of AGW, this section is moot because while the Section speaks of “a lack of full scientific certainty” not being a bar to preventing environmental degradation it does not apply to the situation where there is no scientific certainty for AGW and considerable scientific certainty against AGW.
Alternatively Ms O’Shea does have some justification in respect of the proven polluting elements of coal and gas; that is the “toxic trace elements” such as mercury, nitrous and sulphuric oxides and particulates. In fact these by-products of coal and gas energy are one of the three environmental issues created by coal and gas mining and usage.
The other two are water contamination and competition with agricultural land use. None of these ‘real’ polluting aspects of coal and gas have anything to do with AGW.
The particulate issue can be rectified by various methods such as better coverage of stockpiles of coal, dampening and more efficient transportation. The toxic trace elements issue could be resolved by the introduction of .Ultrasuper-critical coal technology. This technology is not only greatly more efficient than all other forms of energy production but because it operates at such high temperatures it eliminates most of the real pollutants such as the oxides and mercury.
All of this takes money. In this and dealing with the promotion of coal as a great energy source the coal companies have been grossly negligent and egregious. Instead of ‘fessing up’ to the polluting history of coal, arguing the lack of merit in AGW theory and indicating a willingness to eradicate the remaining problems of coal mining and use the coal companies have been missing in action. They have hidden behind the chimera of Clean Coal or carbon capture technology [CCS].
CCS works. It only has 2 problems. Firstly the energy required to capture the CO2 emissions when the coal is burnt is about as much energy as burning the coal produces. Secondly, the final sludge containing the captured CO2 requires a storage space about 30 times the size of the quarry from which the coal was mined.
The cul de sac of CCS has cost the government and the coal industry about $400 million. For this the coal industry could have solved the particulate problem and made a start on introducing Ultrasuper-critical technology.
One of the promoted advantages of the ‘syngas’ plant which Ms O’Shea opposes it that it is compatible with CCS technology. That would be the only legitimate reason for opposing it!
Unfortunately Ms O’Shea concludes her article in a deluge of the usual emotive symbology which proponents of AGW resort to.
The continued use of children as the victims of AGW is particularly regrettable as has been argued here.
Equally regrettable is Ms O’Shea’s reference to the 2009 ‘Black Saturday’ bushfires. Along with the 2010 Queensland floods the Black Saturday fires have been the 2 worst natural disasters Australia has had in recent times. Advocates of AGW have claimed both as evidence to support their cause.
This is wrong in both cases.
The 2009 Black Saturday fires were comparable with the 1939 Black Friday fires with both events happening at similar times of the year with similar weather patterns and temperatures. In fact, arguably, if the Urban Heat island effect is considered, Melbourne’s record temperature in 2009 would be less than the 1939 temperature.
More people perished in the 2009 event. More people lived in the affected areas and there was manifest incompetence in the official response to the fires. But rather than AGW being the cause of the 2009 fires Green ideology which forbid reduction of undergrowth played a part as various experts argue.
Perhaps the most cogent proof of the role the prohibitions against clearing played in the destructiveness of the fires is the case of the Sheahans who were fined nearly $100,000 in 2003 by the Mitchell Shire council for unauthorised land clearing. Yet, after the 2009 fires the Sheahan’s house was the only one in the district not burnt to the ground.
So far the litigation about AGW has been by the pro-AGW groups against the usual suspects, Macquarie Generation, Xstrata and the like. That trend may change with a class action against SEQwater. The irony is that the preponderance of litigation by pro-AGW groups has established standing on the issue of AGW. That will make it easier for the anti-AGW litigation to proceed.


  1. The question of having to prove the “AGW is not true” in the Wivenhoe case may be a little extreme.
    Rather, they would need to show that the operators had a revised policy that gave due weighting to the Australian Government’s Report. I have only read the results. It says here quite clearly

    "Observed trends in exceptionally low rainfall years are highly dependent on the period of analysis due to large variability between decades."

    In other words the results are not robust. This is not surprising. The report only looked at period of 40 years, so could say little about the frequency of once-in-a-generation extreme events. It does not say that floods will never occur again, like they have in the area since time immemorial.

    If the authorities did not undertake a proper risk assessment of future scenarios based upon a balance of existing knowledge, and the report, then the change of purpose from flood management to reserve storage facility is flawed. This is unless there is near certainty that a climatic shift has occurred in a definite way. This was because

    1. The Report clearly stated that its results were not robust, AND did not predict that extreme rainfall would never happen again.
    2. There is a further complication that may hold. If there is not an extreme climatic shift (or only a partial one, or are in a slow transition from one state to another), then an area with extreme floods in the past will still likely have extreme floods in the future.
    3. Further, the lack of extreme floods for an extended period might pose a greater risk of extreme flooding in the immediate future.

    This whole thing becomes a complex matter of balance of risks. That is why they should have solicited expert opinion on risk management from different perspectives, and tried to eliminate any corporate or individual biases. Furthermore, a risk management body should have publicly stated this change of use of the Wivenhoe Dam, so that householders could make adjustments to their risk portfolios.

  2. Thanks manicbeabcounter, for your considered comments; it is true that disclaimers about the reliability of forecasting are included in the CSIRO report, Drought Excpetional Circumstances, but the overall conclusions are plain; that the climate future of Australia, including QLD, will be dominated by drought. Dr David Stockwell considers this point and the defects in CSIRO's analysis here:

    More generally any law case would have to refer to government policy documents obtained by the usual subpoena and discovery methods to see whether other expert evidence similar to the CSIRO report was used to justify how the Wivenhoe dam was being used. And this is the point; the fact that Wivenhoe was manifestly being used as a drought mitigator not a flood mitigator at the time of the floods.

    In respect of other scientific advice about future drought the QLD government and dam operators would have no shortage of sources as Bolt's summary shows:


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