Emerging Legislative Regimes for Regulating Carbon Capture and Storage Activities in Australia: To What Extent Do They Facilitate Access to Procedural Justice?

Abstract

Anthropogenic climate change is a fundamental challenge. Of the various responses to this “super wicked problem”, carbon capture and storage (CCS) is one that has been mooted in Australia during recent years. While many commentators continue to question the technological and economic feasibility of CCS, a number of Australian governments have adopted a proactive stance to CCS by amending or enacting legislation to regulate CCS activities in their respective jurisdictions. To date, there has been little critical examination of these legislative regimes and their implications for the future role of CCS in Australia. Accordingly, this article will focus upon one central area of CCS regulation that has not been comprehensively addressed by the existing literature – that is, the extent to which emerging legislative regimes for regulating CCS activities in Australia facilitate access to procedural justice. Access to procedural justice will generally be facilitated in circumstances where the law gives procedural rights to members of the community of justice to: have access to information, participate in decision-making processes, and have access to review procedures before a court or tribunal to challenge decision-making or impairment of substantive or procedural rights. This article undertakes a comparative analysis of the laws that have been enacted or amended to regulate CCS activities in Australian jurisdictions in order to identify standards of best practice for facilitating access to procedural justice. It finds that while many of the laws regulating CCS activities in Australia reflect clear attempts by government to facilitate access to procedural justice, some of these laws fall short of facilitating access to procedural justice in an adequate or sufficient manner. Recommendations for law reform are made with the aim of providing guidance as to how Australian CCS laws can better facilitate access to procedural justice in the future.