Australian Law and Biochar: Clean Energy Act 2011

Jim Prentice

Introduction

We see in this, our first issue, what a valuable process Biochar is for reducing carbon pollution. Biochar will be a part of an international strategy of global reduction of greenhouse emissions. Just very recently its place in Australian legislation became legal fact. Yet Biochar processes will change with this general recognition of its environmental role, the new legal regulation and subsequently by investment in it. Practitioners face changes. These changes are driven firstly by broad environmental, economic, political and social institutions and secondly, by the consequences of the legislation contained in the Clean Energy Act 2011. Therefore we need to put Biochar in a bigger picture now. We shouldn’t ignore international factors nor local ones shaping Biochar practice nor ones important to farmers, commercial interests, educationalists and governments.

Not surprisingly, conflicts of interest and opinion will exist, but so too ways to resolve some of them. As investment and regulation increase so too conflict. Yet, we shouldn’t forget this is a good news story. These are not ‘pie-in –the-sky’ reforms. It’s for those with their feet on the ground but with an eye to the sky (the common good) and for practitioners their own purse is at stake.

What’s that all mean for Biochar practitioners? I argue practitioners will not only require their own self regulation but also need to respond to regulation by government through lobbying. Peak bodies or representative processes for Biochar practitioners will follow. These need to deal with the other interested parties. Mentioned here are only a few – commercial interests, governments and especially farmers: all of whom have peak representative bodies. As the government and economy orient to the environment in projects,¹ the Biochar practitioner bodies will face pressure for changes to processes of production and application of Biochar. Of course they may try to adapt on a one- to- one basis and negotiate with individual farmers and individually with governments. More likely grass roots actions and collective action by practitioners will follow, but the changing environment encourages any organisation very strongly. The formation of representative bodies may be grass roots or more top heavy – that’s up to them – but at times they will need to speak decisively with one voice –now more than ever before.

All aspects of Biochar face greater outside assessment and examination. Biochar will find a place in international and national trade in carbon credits. Practitioners will have to broaden their horizons to include science, economy, foreign affairs and trade.

Biochar practitioners: Beware, organise and celebrate!

The Legislation

The Federal Australian Government’s involvement in the proposed clean energy future is apparent in the legislation. More broadly, the Federal Government will be regulators of a great many commercial environmental activities. Biochar techniques and practices gain specific attention from the regulations connected to legislation for the reduction of greenhouse gases in the Clean Energy Act 2011². Further, the regulations (the legislative ‘small print’ if you like) will evolve to meet many unresolved and inevitably real-world complexities not included in the legislation. That is not unusual but it will be especially evident in this legislation due to its breadth, making Biochar and other abatement programs almost continually ‘politicised’ or contended.

If this is not enough, the Acts (18 in all associated with the Clean Energy Act 2011) are preludes to an Emission Trading Scheme (E.T.S.). Its introduction in 2015 will emphasise further the importance of some of the issues discussed here. My comments concern the broader economic, environmental, scientific and regulatory frameworks for Biochar, subsequent to this Act’s passing.

We should not assume the Act’s preparatory and insignificant status ahead on an Emissions Trading Scheme. Britain’s Climate Change architect Byrony Worthington³ describes the Australian Clean Energy Act 2011 as state-of-the art. By fixing the price of carbon, it resolves many of the European problems of the very low value the market has placed on carbon there (low valuation is also a problem here with what were called RECS⁴. (Low price means less incentive to act.) Yet we, too, should see this as experimental endeavour and ‘needing tweeking’ to say the least. Input from interested parties will be intense. However as the natural environment really enters into all economic and government calculations with this Act we can expect a huge upsurge in interest in processes like Biochar including large scale investment and application.

Further it does not begin in 2012, but has begun already. Call this legislation inadequate, a milestone, or the random product of political wheelin’ and dealin’, its legal uptake will be in 2012, yet its effects begin immediately – in planning for corporations and for farmers. It heralds ever more sweeping changes in 2015 and later I will indicate this has real potential to remain mostly in intact for the ETS.

The framers of the Act benefitted from hindsight, learning from earlier schemes such as those of New Zealand’s and Europe’s and there is evidence of this in the Australian Clean Energy Act 2011. It is preparatory to something like this by 2015: something existing already in New Zealand.⁵

New Zealand's Emissions Trading Scheme (ETS)

Responsible boards and individuals will have to work on the assumption the legislation is a ‘done-deal’ and so too an ETS. It will have long term effects even if, as discussed in the final paragraphs of this article, its opponents try to remove it. Biochar may be one touchstone of its value and success and the inability to others to ‘wind the legislation back’ as it addresses issues of food production just as our 7 billionth citizen is born.

The Carbon Framing Initiative⁶ and Biochar

The associated 18 individual Acts in the Australian Clean Energy Act 2011⁷ necessarily mesh with a great deal of existing legislation on anything from fuel excise (import tax) to farm income taxation. However it is farmer’s income that I concentrate on because of the Biochar possibilities on farm. The Carbon Farming Initiative Act 2011 mentions projects to remove greenhouse gases from the atmosphere.

The Carbon Farming Initiative (CFI) is an Australian Government scheme to help farmers, forest growers and landholders earn income from reducing emissions like nitrous oxide and methane through changes to agricultural and land management practices. The initiative will achieve this by:

• Establishing a carbon crediting scheme
• Developing methodologies for offset projects
• Providing information and tools to help farmers and landholders benefit from carbon markets
• Investing in a Biochar Capacity Building Program⁸

In a section awkwardly named “Additionality”, the draft regulations associated with the Carbon Farming Initiative provide information about what schemes will attract carbon credit. This implies a list of activities deemed so worthy. It provides therefore tradable rewards of a monetary type through reducing pollution. Carbon pollution or equivalent is costed initially at $23 and slowly rises before trading begins. The Act will allow credit for schemes dating from 2007 when the Australian Labor Party was first elected with a mandate for carbon abatement.

Of course, to indicate the necessity of regulations (since I suspect there are always a few doubters here!) simple exclusions get listed as non-compliant, for example, activities such as propagating noxious weeds or plantations specifically designed for taxation reduction purposes. In the new national legislation, large scale Biochar techniques can be applied beneficially to urban and industrial waste so we must think beyond agricultural applications which nevertheless are mainly those discussed here.

Competing Investments and Synergies or Complements

Biochar will compete with many initiatives for attracting investment so it will need to prove particularly cost effective, as against the traded value of carbon and other technologies (say tree plantations). Then too, it must be widely desired by farmers. Of course, its capacity to enhance soil is a highly positive characteristic but in the trading model this is not considered other than saying that soil should be Biochar’s destination. It therefore may be those wanting the dual effects of Biochar (on soil and sky) that choose to gain credits in this way.

By itself, Biochar may not be the cheapest way of gaining carbon credits (or it may be). However, those who see the Biochar will help their agricultural production will consider both its carbon reduction reward and its benefits for that agricultural production. Yet, many of these other activities stated in the Carbon Farming Act will have this double edge. So Biochar practitioners will have to demonstrate a very complex benefit to farmers as will these other competitors for farming investment. Of course, it may be desirable to mix several strategies, so ‘competition, isn’t really the right word.

The Act lists other strategies than Biochar in this regard. The following processes qualify for the carbon reduction rewards of $23 per ton according to the Act. The draft regulations⁹ to come into force now the Act has passed, state these competitive or complementary possibilities as:

1. Establishment of permanent environmental plantings after 1 July 2007, on land that is not conservation land;
2. Establishment of permanent environmental plantings under the Commonwealth Government’s Greenhouse friendly(tm) initiative;
3. Establishment of permanent mallee plantings after 1 July 2007;
4. Re-establishment of native vegetation, on land that is not conservation land, from residual seed sources through:
   1. exclusion of stock; or
   2. management of the timing and the extent of grazing; or
   3. management of feral animals; or
   4. management of plants that are not native to the project area; or
   5. cessation of mechanical or chemical destruction, or suppression, of regrowth;
5. Restoration, on land that is not conservation land, of wetlands that had been drained;
6. Application of Biochar to soil;
7. Capture and combustion of methane from waste deposited in a landfill facility before 1 July 2012;
8. Capture and combustion of methane from livestock manure;
9. Dry season burning of savannah areas greater than 1 km²;
10. Management of feral camels on land that is not conservation land;
11. Use of tannins as a feed supplement for ruminants;
12. Incorporation of Eremophila species into feed for ruminants;
13. Manipulation of gut flora in ruminants;
14. Application of urea inhibitors to livestock manure;
15. Application of urea inhibitors to fertiliser;
16. Diversion of putrescible waste that would otherwise have entered a landfill facility to an alternative waste treatment facility before 1 July 2012.¹⁰

Quite clearly this legislation adds considerable complexity to the opportunities for Biochar practice. Necessarily, a scientific valuation of the carbon credit value that fits with each technique of carbon farming will eventually exist. Therefore conflict is almost inevitable in the rating and crediting of all these processes including Biochar, and scientists will determine such outcomes to some extent. It requires strategic assessment of economic processes and agricultural benefits as well as scientific determination of the calculations.

These then become part of the Biochar wider connection – of its evaluation, accreditation and economic assessment – its new operating environment in the wider world.

Other Considerations

A specific Biochar Capacity Building Project¹¹ is included in the Carbon Farming Initiative 2011. Scientific and educational investments and opportunities will emerge. While CSIRO¹² has research on Biochar that is extensive, the New Zealand investment will be repeated here.¹³ Further in the political sense the legislation in general may lead us to closer ties with New Zealand and Europe. These again are likely wider operating environments.

Will the legislation survive?

Overall the legislation is politically powerful because it establishes a precedent that despite opposition will not be changed easily. Biochar educators and practitioners are just two of many groups who want certainty and these include much more economically powerful players.

Further influences flow from international considerations. Australia has often taken an international role in matters. Australia has a vital interest in making carbon abatement work against its largest- in- world, per- capita, carbon and other greenhouse pollution rates¹⁴ and the importance to some of its global good citizenship credentials. This strategy has international sanction if lacking articles of agreement. Its connection to the Kyoto Protocol is obvious: it is doing at least something of our part as Australian government representatives discussed in Japan, all that time ago!¹⁵ The sanction of such bodies as the U.N. through ‘Kyoto’ is a weighty reminder to those seeking to undo these changes and an omen of future recognition of Biochar in a world of 7 billion people.

For this legislation to be overturned and replaced in the peculiar circumstances of the Australian Parliament, it needs to pass through the Australian Senate. This is in the event of this incumbent government losing the elections due November 2013 (currently looking likely), and a repeal issued from a newly elected government. However, in the Senate (Australia’s Upper House), the Greens are still likely to hold the balance as only half the Senate faces re-election. Of course, what the current Leader of the Opposition means by ‘spilling blood’ on this would be to force a double dissolution. Australians are not only familiar but also wary of this course of action – based on a more generalised distrust of politics. Such double dissolutions have elongated and often unsatisfactory political outcome. Since too, the Act gives out property as carbon credits, changing the legislation means withdrawing this –a legally doubtful possibility.

The Australian Constitution, Section 57 fails to say what is ‘blocking’ (by the Senate which is however unconstitutional), although central legislation like this will give a new hostile government adequate ‘legs’ or legitimacy for a double dissolution. The Bill must be twice rejected in the Senate after a three month gap. The first step after dissolution would be a new election with the possibility that the election leaves the issue politically undecided or with ever more Greens in the Senate (5 will hold their seats for the next parliament as the Senators has 6 year terms). A Joint Sitting is the next step where it is conceivable the new government would still win as Lower House numbers are greater by a ratio of 2:1. Yet all that is a lot of political instability for a Leader of the Opposition on record as supporting some sort of Carbon Tax. Perhaps, politically, ‘a bridge too far’ at a point where times will have changed, the fear of the green ogre diminished, and an ETS–the next step – just around the corner. Of course a crystal ball is an element in these assertions.

Some Australians now say they got what they voted for, although they are entitled to say it was not a Carbon tax they wanted as the scheme discussed is called, (because the price is fixed by the government), but rather an ETS. Such matters are politically complex and value laden – a theory of mandate verses a theory of strict adherence to promises.

There are rewards rather than empty pockets and wishful thoughts –sustainability must include its practitioners. The Act shows a Prime Minister and those with greenish intentions in a “wheelin’- dealin’” style, reaching compromises –those with reforming intentions can be much sillier than this. Yet the deals might come back to bite –even should. However it is clean in another sense – for a cleaner environment.

Beyond optimism there is room for critique. Is this the whole answer? No. For this writer on the far urban fringe of an Australian capital city, with acquaintances with significant acreage, Carbon Farming is a great point of discussion about change. It creates the possibilities of new plans and their delivery. Are resources besides the air and fresh water still threatened? Yes. And still these too. Is species extinction to continue at its shattering rates? Yes of course. Are we out of (or rather into the woods) now? No. Olympic Dam¹⁶ in Australia will mine more than a kilometre into the ground –open cut: just approved in the same parliament as the Clean Energy Act is passed the Lower House. Imagine the costs to the environment in that, whatever you think about nuclear fuel. Will individuals think more deeply about their carbon footprint? Probably some! But is it a step forward? Yes, on balance and with optimism.

The Biochar practitioner or his/her organisation now needs representation, broader education, diplomatic skills in many dimensions, commercial expertise and technical innovation.

Reference List Note

I have not included a reference list as the links in text contain all the material that is important while the reflections on government process come from years of teaching Australian Politics. There are many worthwhile texts on this e.g. Government, Politics, Power and Policy in Australia by A.Parkin G.Summers and D.Woodward. The latest edition coming soon covers this legislation.

All web links were accessed on the 15th of December, 2011.

Jim Prentice

Jim may be contacted via email: at jimprentice@optusnet.com.au .

1 Contemporary governments before the recent and ongoing financial crisis saw themselves as, at best, regulators –which they failed at in regard to the crisis. Now direct government investment seems back on the political agenda to put it mildly – (“you can bail out the banks how about anything else?”). And so, too, tighter regulation will be on the political agenda.

2 In legislation in 2009 passing through the South Australian Parliament biochar is mentioned but only in passing

www.sa.gov.au/…/climate_change/documents/Act_Reporting/Legislative_Report_2009.pdf - 2011-04-21

3 http://www.guardian.co.uk/commentisfree/2011/oct/12/carbon-tax-australia?newsfeed=true

4 http://www.greenmarkets.com.au/market.html

5 http://www.climatechange.govt.nz/emissions-trading-scheme/about/ets-diagram.html

6 http://www.comlaw.gov.au/Series/C2011A00101/AmendmentsCarbon%20Farming%20Initiative

7 http://climatechange.gov.au/about/legislation.aspx

8 http://www.daff.gov.au/climatechange/cfi

9 http://www.climatechange.gov.au/cfi

10 http://www.climatechange.gov.au/cfi

11 The Biochar Capacity Building Program website can be found at http://www.daff.gov.au/climatechange/cfi . A further $2 million through the CFI is being provided for a Biochar Capacity Building Program, which will provide farmers and land managers with a better understanding of biochar and its role in mitigating greenhouse gas emissions. The Biochar Capacity Building Program will support research, on–ground demonstration of biochar and the development of offset methodologies to provide additional options for landholders to contribute to reducing Australia’s carbon pollution. Biochar is a soil amendment that is produced by the burning of organic matter such as wood or crop waste in a low oxygen environment. Biochar has the potential to mitigate Australia’s greenhouse gas emissions while benefiting agricultural production. The Biochar Capacity Building Program is in addition to the $1.4 million already being invested in the National Biochar Initiative as part of the Climate Change Research Program (http://www.daff.gov.au/climatechange/australias-farming-future/climate-change-and-productivity-research). The National Biochar Initiative is led by the CSIRO and the areas of research include:

• Cataloguing the properties of different types of biochars and developing suggested applications and usages for specific types of biochars;
• Understanding the interaction of biochar with Australian soils; and,
• Greenhouse gas life cycle assessment of biochar use in Australia.

Further information on National Biochar Initiative is available at CSIRO (http://www.csiro.au/science/Biochar-Overview).

12 http://www.csiro.au/resources/Biochar-Factsheet.html

13 The New Zealand Government has set up two Biochar Professorships at Massey University: http://www.maf.govt.nz/news-resources/news/maf-pleased-by-appointment-of-nz-biochar-centre-co (one particularly on production; the other on soil application).

14 http://www.abc.net.au/news/2009-09-11/australians-the-worlds-worst-polluters/1425986

15 http://unfccc.int/kyoto_protocol/items/2830.php

16 http://www.adelaidenow.com.au/business/premier-mike-rann-to-announce-state-government-response-to-olympic-dam-mine-proposal/story-e6frede3-1226162722337