24 August Greenwashing is now a global issue August 24, 2022 By AMPLA Admin Environment, General Environment, Greenwashing, Ethics 0 Businesses and governments are now realising that being green is no longer nice to have, it’s an integral part of operations. There are also benefits, perceived and real, to both consumers and business customers to being involved in programs that are environmentally friendly or have an ethical or sustainable edge. This has given rise to a new risk - ‘greenwashing’ - that governments around the world are now grappling with. Greenwashing refers to misrepresenting a product, policy or purpose as environmental, ethical or sustainable. It applies not only to companies but also non-profits, investors or anyone seeking to represent themselves in that light. European research has found that up to 30% of multinationals provide incorrect data on emission levels, with the biggest culprits being in the energy and resources sector. While the European Commission has found that 42% of claims by companies were exaggerated, false or deceptive. In Asia, the problem is also widespread. For example, companies may seek to promote “clean coal” where they use carbon capture technology but fail to highlight that the effectiveness of the technology in remediating greenhouse gas emissions is questionable. Similarly, automotive producers in Thailand, Vietnam and Indonesia keen to promote electric vehicles may not mention how much coal is used in the generation of some parts of their vehicles. Much of the international action on greenwashing has focused on investment companies and how they choose to label their funds. For example, German prosecutors recently raided the headquarters of Deutsche Bank in relation to its asset management arm DWS. The United States Securities and Exchange Commission has also brought charges of misrepresentation against BNY Mellon Investment Advisor on the basis of greenwashing. As a result, The Securities and Exchange Commission is proposing that investors need to invest at least 80% of their assets in “clean” or “ESG” assets to use that terminology in a fund’s name. The Australian Securities and Investment Commission (ASIC) is also increasing its focus on greenwashing, releasing Information Sheet 271 recently. This outlines nine guiding questions for organisations to consider when making disclosures to investors. These include guidance on terminology, labelling, methodologies or policies for integrating sustainability considerations, influence over the benchmark index and the use of metrics and sustainability targets. The focus is on misleading statements and disclosure obligations for funds managers, but these could potentially be extrapolated to organisations seeking to promote ESG policies or activities. Steps have been made towards change by the International Sustainability Standards Board that was established at COP26. Two Disclosure Standards for sustainability financial disclosures have been released: ● IFRS S1 General Requirements for Disclosure of Sustainability-related Financial Information; and ● IFRS S2 Climate-related Disclosures. Together they seek to require disclosures to include information on governance processes, controls and procedures as well the organisation’s strategy to address climate and sustainability-related risks and opportunities. It is expected that ASIC and other jurisdictions will adopt these recommendations in the future. The Deputy Chair of the Australian Competition and Consumer Commission (ACCC), Delia Rickard, has also indicated that they’re reviewing how other international jurisdictions are dealing with greenwashing. So we can expect to see more action and enforcement in the coming year. While most regulatory changes are happening in western countries, governments in Asia are aware of the issue. In Singapore, the Competition and Consumer Commission has taken gentle steps to invite researchers to bid for grants on sustainability issues including greenwashing. The Public Relations & Communications Association of Southeast Asia has also established a working party to consider setting standards within the industry. While little steps, it indicates that there is increasing focus on greenwashing in Asia and something for all organisations operating in the region to keep an eye on. Related Articles Submission - DISER Consultation Paper December 2020 ‘Enhancing Australia’s decommissioning framework for offshore oil and gas activities’ ARELJ Recent Development- Electricity Infrastructure Investment ACT 2020 (NSW): Key Provisions and Legal Issues for Project Investors to Consider SHARMA v MINISTER FOR THE ENVIRONMENT More than a year on from the overturning of Sharma v Minister for the Environment by the Full Federal Court, Justice Bromberg’s original judgment continues to occupy the minds of the Australian legal community. Although the current position in Australia is that the Minister owes no duty of care in such cases, the Full Court of the Federal Court of Australia stressed that the expert evidence regarding the threat of climate change and global warming was largely uncontested, perhaps foreshadowing the cornerstone of cases to come. Globally, climate litigation is showing no signs of slowing down. As outlined below, despite numerous defeats in various jurisdictions, climate litigants have secured a small number of hard-won victories, fuelling the pipeline. The impact of Russia/Ukraine conflict on the sector The impact of the Russia/Ukraine conflict on the sector On February 24, Russia invaded Ukraine. Alongside the destruction and terror that’s been inflicted on the Ukrainian people, the conflict has also created great uncertainty in the global economy with flow on effects expected to be felt for years to come. Most western countries have imposed significant sanctions on trade with Russia, which includes a US ban on importing Russian oil. In addition, many Russian banks have been removed from the SWIFT global payment system which will impact the ability to make financial payments both within and out of Russia. This has a significant impact on the resources sector that is likely to continue in the short to medium term. Hot topics affecting the clean energy transition Lauren Shave, Special Counsel, Gilbert + Tobin and President, ER Law Western Australia Branch COMMUNITY LEGAL RIGHTS IN MINE CLOSURE PLANNING; A COMPARATIVE ANALYSIS OF THREE AUSTRALIAN STATES Professor Alex Gardner, University of Western Australia Law School, and Laura Hamblin, formerly research associate at the UWA Law School, 2021 Why does the Mining Act 1978 (WA) not provide secure legal rights for community consultation in relation to mining lease proposals and mine closure plans? Addressing this question presents an important theme for this comparative review of some core features of the regulatory frameworks for mine closure in three Australian States. It also raises important questions for future legal research. Western Australia, Queensland and Victoria have prominent but vastly different, and thus uniquely significant, mining industries. Western Australia’s mining industry has a long history of large and smaller scale mining of a diverse range of minerals by various methods that pose significant mine rehabilitation challenges.[i] Queensland’s mining industry is similarly large and diverse, dominated by export coal production, and planning future minerals development in a decarbonising world.[ii] Victoria has a smaller mining industry with a large historical legacy dominated by a coal mining industry for domestic electricity generation in the Latrobe Valley, which is closing as the State actively transitions to renewable power sources.[iii] These States also have significant differences in the regulation of their mining industries. What all three States do have in common is the significance of their mining industries to both the State economy and the communities who depend on or live near mining operations. Importantly, all three States are confronting large legal and regulatory challenges in managing mine rehabilitation and closure. The key to addressing these challenges is effective mine closure planning: the closure of a mine site has ripple effects that are not merely environmental and economic, but social and cultural too. The initial approval of a mine closure plan occurs before any mining has begun and, with the life cycle of a mine often spanning decades, regulatory bodies are approving hypothetical closure scenarios, potentially subject to vast changes. Regulatory bodies may then seek to enforce closure requirements enshrined in a plan that may wane in relevance as mining operations progress, the updating of which may depend on the miner. Yet remedying the regulatory system so that it creates adaptable but consistently effective mine closure outcomes for affected communities still begins at planning. Although that planning is an iterative process across the life of the mine, it is very important at the initial stage of approval. Recent legislative reforms in all three States are adding to the regulatory rigour and adaptability of mine closure planning, though there are very different legal requirements for community consultation. This article aims to explain and assess the regulatory reforms by undertaking a comparative analysis of mine closure planning across Western Australia, Queensland and Victoria, with a focus on the initial approval stage and how stakeholders and communities are brought into that process. The facilitation of continuous and comprehensive community engagement is critical to ensuring that mine closure planning accounts for environmental, economic, social, cultural and safety outcomes after mine closure, but it has not been possible to consider here the process of ongoing mine closure planning, especially for amending mine closure plans and determining satisfaction of mine closure plans leading to resource tenure relinquishment.[iv] The article begins by considering core concepts of mine closure planning and the regulatory goals that inform it. It then provides a comparative overview of each State’s mine closure planning requirements under the mineral resources, environmental and land use planning laws and draws out some of the different regulatory structures and processes for mine closure within each State. The third step in our analysis compares the ways in which those laws provide for local communities’ participation in mine closure planning, with specific attention to whether the regulatory provisions create legally enforceable rights for effective community engagement. The article concludes with a summary of the key points from the discussion of three themes in our analysis: (i) the importance of clear definitions of core concepts and key goals, (ii) mine closure planning as an essential part of a mining proposal, and (iii) the legal definition of community engagement and consultation rights. Mine closure planning and implementation is necessarily influenced by many other spheres of law including taxation law, investment law, water law, and the rights of traditional owners, to name a few. A potentially directly relevant Commonwealth law is the Environment Protection and Biodiversity Conservation Act 1999 (Cth), which may require environmental impact assessment of a mining proposal and closure plan and lead to approval conditions supplementing State requirements.[v] Whilst acknowledging the importance of these adjacent spheres of the regulatory frameworks for effective mine closure planning, this article does not attempt to address their impact. In particular, the rights of Traditional Custodians are a crucial part of mine closure planning that are only briefly noted here and that would benefit from future research. WA Department of Mines, Industry Regulation and Safety, Major Commodities Review 2022-23”. Qld Government, Department of Resources, Queensland Resources Industry Development Plan, June 022. Vic Government, Department of Jobs, Precincts and Regions, Latrobe Valley Regional Rehabilitation Strategy. See L Hamblin, A Gardner, Y Haigh, Mapping the Regulatory Framework of Mine Closure, May 2022, CRC TiME, for a broader exploration of the full life cycle of mine closure regulation. In Buzzacott v Minister for Sustainability, Environment, Water, Population and Communities  FCAFC 111; (2013) 214 FCR 301, , -, referring to the range of approval conditions, which included mine closure. In setting conditions under the EPBC Act, the Commonwealth Minister must consider any relevant conditions under State or Territory law: at  citing Lansen v Minister for Environment and Heritage (2008) 174 FCR 14. Showing 0 Comment Comments are closed.