A Property Law Perspective on the Current Australian Carbon Sequestration Laws, and the Green Paper Model
journal contributionposted on 29.10.2019, 08:47 authored by Marianna Parry
Current Australian carbon sequestration laws have been passed by State Parliaments in anticipation of the overarching national scheme. The Carbon Pollution Reduction Scheme, although not yet implemented, is a good indicator of future national policies. This paper analyses the current carbon sequestration laws which employ traditional property categories such as restrictive covenant, profit à prendre, chose in action and sui generis rights for forest property rights and carbon sequestration rights. Multiple problems and potential adverse effects of the current arrangement emerge from this analysis. None of the categories appear to be suitable to operate in the novel climate change scenarios. The other traditional property candidates such as easements in gross and long-term leases seem no better suited. After consideration of overseas experiences — that of the European Union and the United States — the solution to the current problems is found to reside in the Green Paper model proposed by the Australian Government in July 2008. However, the proposal has recurred neither in the White Paper nor in the Carbon Pollution Reduction Scheme Bill 2009 (Cth) introduced on 14 May 2009. The main features of the model are: creation of regulatory property rights; use of the National Carbon Accounting System and satellite monitoring; temporary carbon permits issued directly to landowners. The political, constitutional, economic and legal aspects of this model are discussed. It is argued that regulatory property achieves the market-based regulatory goals without any of the adverse effects of the current arrangement.