All’s fair in love and law?

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Framing environmental regulation as ‘green tape’ and challenges to environmental approvals as ‘lawfare’

By Peter Burnett

‘Green tape’ and ‘lawfare’ are back in the headlines. This time the impetus comes from the Government’s latest ‘congestion-busting’ initiative and the impending publication of a new study into litigation by environment groups.

So, is there a tangle of ‘green tape’ out there that needs to be ‘busted’? What about an environmental conspiracy to bog down coal mines and other development projects in litigation? Or are we witnessing another round in the seemingly endless political struggle to control the environmental policy agenda?

These are timely questions because Australia’s premier environmental law, the Environment Protection and Biodiversity Conservation Act 1999 is under review and due to report in October. This will lead to major policy decisions and probably new legislation.

There’s a lot at stake.

More than coloured tape

The term ‘red tape’ has been with us for a long time. It goes back to the 16th century and the Spanish king Charles V, who ordered the use of red tape to bind important state papers (the modern equivalent would be Cabinet papers). String was deemed good enough for the rest.

Only in more recent times did the term acquire the pejorative meaning of ‘unnecessary bureaucratic process’.

The term ‘green tape’ is a modern variation on this theme, and I think it may have emerged in Australia. I first noticed it when the Campbell Newman government in Queensland tabled a bill in 2012 with ‘Greentape Reduction’ in the title. It appears to be a deliberate attempt to extend the pejorative connotations of ‘red tape’ to environmental regulation.

Part of the problem in challenging this framing is that there is some truth underlying the term. Environmental impact assessment (EIA) in particular seems to take a long time, and some of this is caused by overlap, if not duplication, between federal and state EIA laws.

‘Green tape’ is also linked to things beyond the laws themselves. In 2010, compliance with statutory EIA timelines under EPBC was around 90%. From 2013 governments, initially Labor but mostly Coalition, started cutting the Public Service, including the Environment Department. Compliance with timelines dropped to about 60% in the last financial year, prompting the Morrison government to fund ‘congestion-busting’ measures that have brought compliance with timelines back up to around 90%.

In other words, it’s partly a question of resourcing. Governments take the money away, don’t like the resulting drop in performance, and then reinstate the funding and return to previous performance levels, thus ‘fixing’ the problem.

It’s complicated

Many federal EIA’s involve state EIA as well. Federal and state laws overlap but don’t necessarily align. Federal and state officials work in different cultures and usually apply different policies. All this complicates the regulatory process.

Another complication is that the time taken to assess and approve a project is the sum of the time taken by government to take its regulatory steps and the time taken by the proponent company to respond to requests for information or comment from the regulator.

Companies, especially big ones like BHP and Rio Tinto, have bureaucracies too. Sometimes they are slow to respond. Sometimes, I’m told by assessment officers, they resist providing the requested information, either because it’s expensive and time-consuming to collect, or because the information might not be convenient to their cause.

At the end of the day, there is a problem to be fixed here and the government’s recent announcement that federal and state officials will form ‘joint assessment teams’ for major projects is a good one, provided they resource the teams properly and don’t just pressure officials to meet unrealistic deadlines.

But the ‘green tape’ framing devalues the work of public servants and is, in part, caused by those who use this terminology.

‘Lawfare’ and the right to challenge

The government and some businesses have argued at several points in recent years that environmental groups have used their right to challenge environmental approvals in the Courts on a tactical basis, hoping to obstruct development. This is referred to as ‘lawfare’.

Once again, there is some factual basis to the term. In 2012, someone hacked into Greenpeace computers and subsequently leaked a document entitled Stopping the Australian Coal Export Boom: Funding proposal for the Australian anti-coal movement to the media.

One element of the plan to was to ‘run legal challenges that delay, limit or stop … major infrastructure projects (mines, rail and ports)’.

Subsequent academic research has found no significant evidence that the courts have been used to delay projects.

One recent study finds that federal court records do not reveal evidence of the worst kind of delaying tactic, which is to abuse court processes by bringing unmeritorious cases.

The courts have strong powers to deal with unmeritorious claims, including throwing them straight out (‘summary judgment’) and even banning the applicant from bringing further claims without their approval (‘vexatious litigant’). So it’s not surprising that such cases are rare.

But what about meritorious cases, by which I mean cases based on arguable legal grounds? In that case, it’s hard to separate cases based on genuine objections to the individual development from cases driven by a wider agenda, such as the strategy proposed by Greenpeace. This is because the motive, and perhaps the source of funding, often remains hidden.

Further, there is an argument that if the case is meritorious, then it doesn’t matter if the applicant has a wider agenda. This is because well-founded challenges help to ensure that decisions are made properly, thus advancing once of our foundational social values, the ‘rule of law’.

You can see what a tricky issue this is.

Political framings

In the meantime, the EPBC Act is undergoing its second 10-year review and there are many serious issues to address, most especially concerning how to halt the ongoing decline of the environment itself.

‘Green tape’ and ‘lawfare’ are political framings designed to advance a particular agenda. That agenda reflects some valid concerns but there is much more at stake.

What we need is a political framing of ‘environment degradation’ that supports an agenda of ‘we need to fix this before it’s too late’.

Image by Gerhard Lipold from Pixabay

For my next techno-trick – I’m going to make you forget about the problems facing the Reef

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Techno-fixing the Reef and other dangerous delusions

By David Salt

Science is telling us coral reefs are dying. Politicians, while ignoring and denying the science on climate change, are telling us science is going to save the Great Barrier Reef. It’s called the techno fix, and it’s one of the oldest tricks around.

Problem solved?

The problem with the ‘techno fix’ is that it is usually only a partial solution. The allure of the ‘techno fix’ is that it allows us, and particularly our political leaders, to think we’ve solved the problem.

If the problem being addressed is a small one, then maybe a partial solution is fine. If the techno fix doesn’t live up to its hype, then let’s develop a new techno fix. Every time we try something new it’s to be hoped at the very least that we learn something.

But if the problem is big and important, then placing our trust (and limited resources) in a techno fix becomes dangerous and delusional. An example of this is what we’re doing with the Great Barrier Reef.

Boiling coral

The Great Barrier Reef is overheating because of climate change. When corals overheat they eject the symbiotic algae that feeds them. The corals turn white, they look bleached, and if the temperature stays too high for too long the corals die. In the last five years there have been three mass bleaching events along the reef, each one causing unprecedented levels of coral death. In February the Reef was subjected to its hottest sea surface temperatures since records began in 1900. All the evidence suggests it’s only going to get worse.

Coral can recover if it’s given time but the forecasts are that, with increasing temperatures, mass bleaching events will increase in frequency – once every couple of years by 2030 and yet it takes decades to recover from a mass bleaching event. The world’s leading coral scientists predict the Great Barrier Reef will be lost if carbon emissions and climate change is not addressed. Of course, it’s not just the GBR that’s at stake, all coral reefs are being threatened.

And it’s also not just about rising temperature either. Greater storm damage and outbreaks of crown-of-thorn starfish are also wreaking carnage on the Great Barrier Reef; and both these factors also have strong connections to climate change.

The solution? Stop climate change. Do something to reduce carbon emissions. Yes, it’s one of the biggest challenges facing modern society. Yes, no country can do it on its own. However, it’s the only real chance we have of saving the Great Barrier Reef and other important coral ecosystems around the world.

Silver bullets

In Australia, our national government is in complete denial over climate change but is sensitive to the fact that Australians love the Great Barrier Reef and believe our elected leaders should be protecting it – after all, we told the world we would when we go it listed as World Heritage and the Reef is an important part of our economic wealth employing around 64,000 people.

However, following the mass coral bleachings in 2016, 2017 and 2020 (not to mention declining water quality and massive outbreaks of crown-of thorn starfish) it’s becoming increasingly difficult to sustain the line that the Great Barrier Reef is ‘the best managed coral reef ecosystem in the world’.

Rather than acknowledging the connection between coral decline and climate change (and making climate change a policy priority), our government has instead been looking around for techno-fixes that may (or may not) help us manage bits of the unfolding catastrophe. I say ‘may not’ because many of the solutions being explored haven’t yet actually been demonstrated to work.

We’re talking about, for example, searching for corals that can survive in higher temperatures, developing methods to restore degraded coral, putting different coral species into frozen archives that we can use in the future, and researching geoengineering strategies that might provide temporary protection from heat waves*.

Last month the Federal Government announced a $150 million reef restoration and adaptation package that will fund some 42 concepts aimed at helping the reef cope with the growing threat of environmental degradation.

Don’t get me wrong, this is considerable money with many good people doing amazing things to protect the Reef. But at best, even if these strategies work as hoped (and that’s a big ‘if’), all we’re treating is the symptom of the problem, not the underlying cause. Maybe the condition of a few select reefs might be improved for a time (or their decline might be slowed), maybe we’ll create a ‘seed bank’ for some future age in which we’ve figured out how to reduce our carbon pollution to sustainable levels, but none of these efforts are doing anything to save the Great Barrier Reef that we have today. To believe they will work is delusional.

What such efforts do achieve, however, is to give an impression that the government is doing enough and that we don’t have to worry about the underlying cause. That’s dangerous thinking.

No such thing as a free lunch

As to my claim that the techno fix is an old trick, let me quote the ecologist Garrett Hardin who made this comment in his classic paper ‘The tragedy of the Commons’ some 52 years ago: “An implicit and almost universal assumption of discussions published in professional and semipopular scientific journals is that the problem under discussion has a technical solution. A technical solution may be defined as one that requires a change only in the techniques of the natural sciences, demanding little or nothing in the way of change in human values or ideas of morality.”

What he was alluding to was that population growth and resource degradation are deep seated problems connected to human values and ideas of what we think is right and wrong. Technical solutions (coming out of scientific journals) are handy when it comes to solving the emerging issues associated with our rampant economic growth but they don’t address the underlying driver. And, conveniently, they don’t challenge our values or appetite to consume.

If we were able to protect the Great Barrier Reef it’s likely techno-fixes will play a part – maybe even buy us a little time – but without a concerted effort to address the underlying problem of atmospheric carbon pollution and a rapidly warming world then these technical solutions are really only being promoted to fool us into thinking that science will save us, and we as individuals don’t have to worry or change the way we live; that’s dangerous and delusional.

*Geoengineering is in many ways the ultimate techno-fix, and maybe it’s the ultimate delusion: that humans are in control of the earth system (and because we are in control we don’t need to worry about the degradation our activities are causing). Regarding the Great Barrier Reef, the proposal is to use snow cannons to shoot droplets of salt water into the air over the Reef. Salt particles in the air should brighten clouds over the Reef reflecting away sunlight and reducing heat on the reef (in theory). The researchers say it would cost $150-$200 million a year to run cloud brightening over the whole reef. Trials have begun but even these are raising controversy as some believe they are violating an international moratorium on ocean geoengineering.

Image: Bleached elkhorn coral off Magnetic Island (Photo by Klara Lindstrom, ARC Centre of Excellence for Coral Reef Studies.)

Have I got a (new green) ‘deal’ for you

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Open your eyes to a new framing for environmental reform and you’d be amazed what can be achieved.

By Peter Burnett

Reform is tough and environmental reform is no exception. It’s tough because the choices on the table almost invariably involve looking at the status quo, figuring out the trade-offs, and revealing winners and losers. The losers often use, or threaten to use, their political power to try and block the reform. As a result, instead of transformative and enduring change, we usually end of up with incremental shift that solves little.

But it may not have to be this way if we enter the reform process with a different framing of the problem and potential solutions. I’m going to try some reframing here by building on two things: overlaps in ecological and economic thinking and a change in Australian political culture produced by the pandemic. What might be achieved if this reframing was applied to the current review of the EPBC Act (Australia’s premier environmental law)?

On free lunches

Writing nearly fifty years ago for a public that was showing unprecedented concern about a degrading environment, ecologist Barry Commoner explained ecology by formulating four simple laws.

The first was ‘everything’s connected to everything else’. The second and third were ‘everything must go somewhere’ and ‘nature knows best’.

The last law was already familiar to economists: ‘there’s no such thing as a free lunch’ (which, by the by, also happens to be the slogan of our blog).

Economists had long recognised that every choice involves costs, starting with the opportunity cost of not doing something else. A choice to commit resources to one project inevitably means that those resources are no longer available for another.

Commoner was simply pointing out that environmental choices have a cost too. To take a straight-forward example, the more we use the airsheds above our cities as a sink for pollution, most of which comes from vehicles, the less those airsheds can do for us in supporting health and amenity. While we can certainly opt for some of each, the laws of nature preclude us from having both – there’s no such thing as a free lunch.

The facts of life

These ‘facts of life’ often leave us making binary choices and trade-offs (more of this and less of that). We can’t avoid choices, but sometimes we can change the facts that we are choosing between by reframing the problem.

Consider this energy example: developments in battery technology have made electric vehicles a feasible alternative to vehicles powered by fossil fuels. But they cost more, at least for the time being.

Returning to our urban air quality example, instead of choosing between driving more kilometres and reduced air quality, we could decide that high pollution levels are unacceptable and take polluting options off the table. Instead, technology would now allow us to frame our choice as between restrictions on (fossil-fueled) vehicle use and the cost of switching to (unrestricted) electric travel.

Yet we tend to stick to traditional framings. New approaches can be expensive and risky, or challenging to assumptions, values and interests. Consider our last federal election. The Opposition put forward a policy promoting electric vehicles; the government ran a scare campaign somehow connecting this to tradies losing their (fossil-fueled) utes.

Same old, same old

You see this phenomenon in politics all the time. It’s much easier to frame a debate in traditional ways than to risk rocking new boats or getting lost in complexities.

Take the current review of Australia’s national environmental law, the Environment Protection and Biodiversity Conservation (EPBC) Act, best known for requiring environmental impact assessment (EIA) of developments affecting threatened species and other ‘matters of national environmental significance’. The review is led by Professor Graeme Samuel, a commercial lawyer and regulator.

You can see the arguments playing out in the media. Pro-development interests emphasise the cost of duplication and delay while sloganeering about cutting green tape, while pro-environment groups argue that the current law has failed to slow accelerating environmental loss, while also demonising big business.

Same old arguments, same old replies.

Slogans aside, both sides are right. There is duplication and delay between federal and state EIA, and the EPBC Act is failing to put a measurable dent in environmental decline. If ever there was a time to attempt a reframing of the debate, surely this year, one of unprecedented bushfire crises and an economy king-hit by COVID-19 and in need of some wins, is it.

An inter-connected whole

There is another approach, a deal to be done here, but we’d have to think differently about how we do government.

Everything’s connected to everything else. Not just in the physical environment, but in the way we manage things in a federal system, which prefers to slice the environmental cake neatly into Commonwealth and State slices.

Back in the early 1990s we dealt with this problem through COAG (the Council of Australian Governments), drawing up an ‘Intergovernmental Agreement on the Environment’.

With that agreement moribund, it’s time for a new one. The trick would be for both levels of government to agree that the environment is an inter-connected whole, requiring a common policy framework and a shared commitment to high standards of conservation.

Implementation would be based on three main principles: scale, planning and cooperation.

The first is the principle of scale. This would see the Commonwealth focusing on the issues of largest scale, whether in terms of geography, politics or environmental significance, while the States would focusing on issues of regional and local scale. So the Commonwealth would lead on climate change for example, while the States would focus on development approval and catchment management.

The second is to plan, with those plans taking a proactive stance, a bias to conservation. This would involve preparing regional plans, which would protect areas of high conservation value while also identifying priority degraded areas for restoration.

The States would prepare these plans but the Commonwealth would accredit them as protecting matters of national environmental significance appropriately. It would then back that protection with investments, large ones; enough to restore environmental function to the point of resilience.

In return for legally binding State protection of its interests, the Commonwealth would bow out of EIA completely, saving considerable time and resources.

The third principle is good old-fashioned cooperation. This is never easy in a federal system, because the practical incentives to cooperate are often trumped by the political incentives of playing for advantage.

Not always however. As COVID-19 has shown, where there is real common cause, politicians of all stripes can get along famously.

Not a ‘Green New Deal’ but a new ‘Green Deal’

For this approach to work we’d have to agree that the environment is so important that federal-state politicking should come second. No easy task. We could start by asking independent statutory bodies like the Bureaus of Meteorology and Statistics to gather and hold environmental information, and to produce environmental accounts. This would guarantee an expert and impartial foundation of information for informed decision-making.

After our deadly Black Summer most people agree something needs to change.

In the Depression-era USA, President Franklin D Roosevelt enacted a wide-ranging and radical set of economic and social programs called the ‘New Deal’, to enable his country’s recovery. Currently there is much talk in the US about a ‘Green New Deal’ that will address climate change and economic inequality. This talk has spread to other countries, including Australia.

While the ‘Green New Deal’ might be seen as a project of the Left, could it be that in this extraordinary year of environmental, health and economic crises, the time for a new framing, a ‘New Green Deal’ has come?

The choices might still be hard but at least the trade-offs would be different. It’s at least time to start talking about it.

Image by FreePhotosART from Pixabay

Cultural vandalism in the land of Oz

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Criminal intent or just failed governance?

By David Salt

Humans have a rich history of disregarding the culture of others. One tribe moves onto the turf of another tribe and trashes the cultural capital of the first tribe simply because they can; because the culture of the first tribe is an affront to their ideology or their sense of mastery. It’s a signal to everyone that the conquering tribe is the one in charge.

Last week a mining company blew up a cave in Juukan Gorge Western Australia as part of its mining operation. In so doing it destroyed Aboriginal heritage reaching back some 46,000 years.

What does this signal? That economic priorities trump everything else? That First Nation culture is to be respected but only when there is no price to pay? Or that our governance of cultural heritage is a sad joke?

Humans have a rich history of disregarding the culture of others. Around the world there have been many recent episodes of cultural vandalism but this episode in Australia is on many scores far worse.

Blowing up the Buddhas

Many have compared what happened in WA with the Taliban who blew up the massive carved Buddhas in Afghanistan in 2001 (see David Pope’s cartoon).

It is believed that the monumental Buddha sculptures – one 53m tall, the other 35m – were carved into the cliffs at Bamiyan some 1500 years ago. Before being blown up they were the largest examples of standing Buddha carvings in the world. They were perhaps the most famous cultural landmarks of the region, and the area was listed by UNESCO as a World Heritage Site.

In 2001, the fanatical government of Afghanistan, the Taliban, declared the statues an affront to Islam. The Taliban’s supreme leader Mullah Omar said that “Muslims should be proud of smashing idols.”

And so it was, despite international condemnation, that the statues were blown to pieces by dynamite.

However, this act of desecration was deliberate, planned and trumpeted to the world. It wasn’t collateral damage in the pursuit of some other goal (such as the expansion of a mine). It was an end unto itself. Like it or not, agree with it or not, it was an act carried out by the government in control of the region.

From Prophet to profit: David Pope’s commentary in The Canberra Times.

Drowning the birthplace of ‘civilisation’

That was 20 years ago. Surely such explicit vandalism of the world’s greatest cultural heritage wouldn’t happen these days?

Have you heard of the ancient city of Hasankeyf? It sits on the banks of the Tigris River in south-eastern Turkey. It may be one of the oldest continuously inhabited settlements in the world, spanning some 10,000 years (leaving aside Australian Indigenous culture that goes back some 60,000). It shows examples of Bronze Age kingdoms, Roman influences and was part of the Mongol, Safavid and Ottoman Empires.

Well, if you haven’t seen it you’ve missed your chance. Hasankeyf has just gone under the waters of the newly completed Ilısu Dam. According to Turkey’s leaders, the dam will generate 10,000 jobs, spur agricultural production through irrigation and boost tourism (though many claim the only tourist drawcard in this region is the now drowned city of Hasankeyf).

The dam’s development has been a running sore for the country for many years but Turkey’s strong-arm leadership would not bend to any appeals – internal or external – on sparing the ancient heritage that lay in Hasankeyf. Their claim was the economic development this project would bring outweighed the heritage value of not proceeding.

Some would support such an argument saying a developing country has the right to place its economic development first and foremost. That once the economy has been developed, when it’s people on average enjoy a higher quality of life, then is the time for debates on protection of unique heritage values. It sits with a body of theory referred to as the Kuznetz Curve that suggests that social and environmental concerns are often dealt with once a nation has healthy and robust economy.

So what are we doing in the land of Oz?

None of this should give us comfort when it comes to our brand of cultural vandalism.

The site in Juukan Gorge destroyed by the mining giant Rio Tinto up in the Pilbara was well known for its outstanding heritage values. It’s the only known inland site showing human occupation through the last ice age. The shelters were in use some 46,000 years ago making them approximately twice as old as the famed Lascaux Caves in France.

Rio Tinto says it has apologised to the traditional owners of the site, the Puutu Kunti Kurrama and Pinikura (PKKP) people.

“Our relationship with the PKKP matters a lot to Rio Tinto,” says Rio Tinto Iron Ore Chief Executive Chris Salisbury. But apparently, it doesn’t matter so much that the mining giant even informed the PKKP they were planning to demolish the caves. The PKKP only found out about the plans when they asked, about a week before the demolition, for access to the shelters for NAIDOC Week in July.

Rio Tinto then went on to suggest that the PKKP had failed to make clear concerns about preserving the site during years of consultation between the two parties, something representatives of the PKKP strongly denied saying Rio was told in October about the significance of the rock shelters (and again as recently as March).

While the demolition was legal under outdated WA heritage protection laws it’s hard to see how such cultural vandalism would have been allowed to proceed if there had been any public airing of what was about to occur.

According to news reports, the federal minister for Indigenous Affairs was informed about the imminent destruction of the caves in the days before it occurred but did nothing about it.

The WA Minister for Aboriginal Affairs claims he didn’t even know the demolition was happening.

And the perpetrators themselves are making few comments (though they released an apology several days after the destruction – possibly realising that in so overreaching acceptable behaviour that their social licence to operate was in question).

Things will change?

Clearly, something has gone horribly wrong here. At the very least there has been a terrible lapse in national and state governance, and an appalling lapse in corporate social responsibility. Everyone has expressed regret over what happened, but no-one has accepted responsibility.

Things will change our political leaders are belatedly telling us. WA hopes to pass its new improved Aboriginal cultural heritage bill later this year; the existing law that permitted this destruction is almost 50 years old and crafted in a different age when it comes to respecting Aboriginal culture.

Federal Indigenous Affairs minister Ken Wyatt has now called for Indigenous cultural protection to be addressed in the current review of the EPBC Act. It’s interesting that the discussion paper put out for the EPBC review seems to put a lot of emphasis on Indigenous issues. It’s ironic that this desecration by Rio Tinto should occur while this review is in train.

The caves at Juukan Gorge contained inestimable anthropological and cultural value, as did Hasankeyf and the Bamiyan Bhuddas. Unlike Hasankeyf and the Bhuddas, the caves lay in a stable, democratic and developed nation that tells the world it respects and protects Indigenous culture.

What happened last week at Juukan Gorge shines a light on the truth of this claim. It can never be allowed to happen again.

Image: Rio Tinto prepares explosives that will destroy a 46,000 year old Aboriginal shelter in Juukan Gorge. (PKKP Aboriginal Corporation.)