Federal government push to invest public funds in fossil fuel technology wide open to court challenge, leading Australian barrister says

By October 4, 2021October 5th, 2021Climate and Finance, Media releases

MEDIA RELEASE   

A leading barrister and former head of the Law Council of Australia says the Federal Government’s push to invest public money into fossil fuels and non-renewable technologies could be illegal, is well open to serious legal challenge and is “at odds” with the purpose of the Australian Renewable Energy Agency.  

Environmental lawyers, safe climate and environmental advocates, as well as peak representatives of the renewable energy industry, have hit out at the Morrison government’s repeated attempts to radically reshape Australia’s dedicated renewable energy funder, ARENA, and direct it to fund carbon capture and fossil fuel hydrogen technologies.   

And they aren’t alone. A Liberal-led Senate Committee looking into the government’s new Regulations delivered a firm rejection of the regulations for a third time on Wednesday, labelled them inappropriate and unlawful, and urged for them to be abandoned.  

Legal advice from Senior Counsel Fiona McLeod and Julian Murphy, sought by Environmental Justice Australia, found the move was “at odds” with the purpose for which ARENA was established and “thus potentially beyond regulation-making power”. They advise that the Regulations are well open to legal challenge on multiple fronts. 

The legal advice further considers that the Federal Government may not have been permitted to make these latest regulations at all after very similar regulations were already rejected by the Senate in June this year. 

Energy Minister Angus Taylor has attempted to bypass the Parliament to implement new regulations to task ARENA to fund programs including carbon capture and storage, fossil-fuel based hydrogen projects and undefined “low emission” technologies, rather than helping propel Australia towards renewable energy sources.  

ARENA was established in 2012 to improve the competitiveness and supply of renewable energy in Australia, it provides financial assistance to support research into and deployment of renewable energy technologies. 

Environmental Justice Australia Senior Climate Specialist LawyerHollie Kerwin said:  

“The legal risks of this latest attempt to recast ARENA to fund fossil fuel technologies are now abundantly clear. For ARENA, there may well be questions about the certainty of any actions it has taken or will take based on the government’s new regulation. 

“It doesn’t matter whether you look at this in legal or policy terms – trying to take ARENA’s eyes off its renewables mission right now is a high risk, bad move. ARENA has a critical role to play in ensuring a safe climate for all Australians and that we can take our place as a renewable energy super power.” 

Australian Conservation Foundation Climate Change and Clean Energy Program Manager, Gavan McFadzean said: 

“Diverting ARENA makes no sense, and it’s likely illegal. ARENA was set up to focus on renewable energy and its success has been a big factor in Australia’s enormous renewable energy gains. That work is not done. ARENA needs to remain Australia’s renewable energy agency, not a diluted agency expected to be the funding vehicle for all the energy Minister’s pet programs. 

Solar Citizens’ National Director, Ellen Roberts said: 

“ARENA’s clear purpose is to fund the technologies we actually need to slash emissions: renewable energy backed by storage. We must stop Taylor’s dodgy regulations which could see clean energy funding used to dangerously prolong the life of coal and gas with unproven carbon capture technology, or investment in fossil fuel hydrogen.” 

Smart Energy Council Chief Executive, John Grimes said: 

 “The Morrison Government’s attempts to gut ARENA are outrageous and illegal and must not stand. These changes must be disallowed by Parliament.” 

GetUp Climate Justice Campaign Director, Kathryn McCallum said:  

 “Carbon capture and storage and fossil fuel hydrogen are excuses for polluting corporations to continue business as usual – burning more coal and gas. Our successful renewable energy agency should stay focused on building a future powered by sunshine.” 

Media contact: Kathryn Lewis,[email protected], 0411 670 886  

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