Red lines for green values

What ‘standards’ are we prepared to accept in an overhaul of Australia’s national environment protection laws?

By Peter Burnett

When Professor Graeme Samuel’s Independent Review of the Environmental Protection and Biodiversity Conservation Act (EPBC Act) is tabled, which must occur by early February, we can expect to see recommendations for a complete overhaul of Australia’s national environment protection laws.

In an interim report in July, Samuel declared the EPBC Act to be a failure. Auditor-General Grant Hehir reached similar conclusions in his contemporaneous review of federal environmental approval processes under the same Act.

Despite having received the Samuel Review on 30 October, the Government continued to press a bill it had introduced in August to ‘streamline’ environmental approvals by devolving approval powers to the States in advance of the Review.

Professor Samuel had supported devolution in his interim report in July, but only in the context of a full reform package built on a foundation of his proposed National Environmental Standards.

A Senate Inquiry into the streamlining bill prompted key crossbench Senators to oppose it, not because they were necessarily opposed to devolution but because the government refused to provide them with the Samuel Review and other key supporting documents.

At the last moment, environment minister Sussan Ley provided the Inquiry, and thus all of us, with a copy of the draft Standards from the Samuel Report.

The draft Standards are the key to national environmental reform and thus worth a closer look, even without the benefit of the full Samuel Report.

Why set standards?

The standards deal with the so-called ‘matters of national environmental significance’ that are protected by the EPBC Act. Some of these like World Heritage and threatened species are well known. Others, such as internationally significant ‘Ramsar’ wetlands, are not.

Despite being confined to the Commonwealth’s responsibilities, the standards address the bulk of Australia’s most significant natural environmental and heritage values (other than climate), and have implications for the rest.

A key problem with many environment protection laws, including the EPBC Act, is that they require decision makers to follow due process and to consider various policies and principles (in Australia, often built around the concept of ‘ecologically sustainable development’) but without setting a bottom line based on maintaining essential environmental values and functions.

This enables a culture in which decision-makers can, and often do, pay lip service to the environment while approving its ongoing decline. Sometimes this lip service is paid by burdening industry with numerous ‘strict conditions’, thus delivering a ‘lose-lose’ outcome.

National Environmental Standards could change all that. Their key purpose is to set minimum environmental outcomes, including for decisions devolved to states.

A good set of environmental standards will identify our most important environment and heritage values and define the level of environmental function needed to maintain those values over time. The effect of standards is to place off-limits any deliberate degrading of these values and functions. One result is that significant or irreversible environmental loss cannot be traded for an economic or social gain, no matter how large, except possibly in national emergencies.

The Samuel Standards

Professor Samuel delivered a set of 10 national environmental standards, one overarching and one for each of nine matters of national environmental significance. The Standards would be relevant to activities and decisions at all scales but their most obvious application would be in assessing development proposals.

Apart from being innovative in themselves, the standards introduce policy concepts such as a ‘principle of non-regression’ and the ‘ecological feasibility’ of biodiversity offsets.

They also give new recognition to some not-so-new concepts such as the need to consider the impacts of development proposals on a cumulative basis. This would address a long-standing concern of environmentalists that individual developments chip away at environmental values, a process known colloquially as ‘the death of a thousand cuts’.

Addressing cumulative impacts implies there should be a bottom line for each species and ecosystem. To take a current example, it implies that government should determine a minimum viable habitat and population for koalas, probably for each population region. As this threshold of viability was approached, development approvals with koala impacts would become increasingly difficult and ultimately impossible to obtain. (The corollary is that if the threshold has been crossed, investment in recovery and restoration is an imperitive).

The standards are certainly not perfect. In discussions within a consultative group of which I was a member, Professor Samuel made clear his dislike for ‘weasel words’, a dislike that I share.

Unfortunately, the standards retain too many of these undesirable creatures. Some, such as ‘promote’ and ‘not inconsistent with’ come from the existing Act, while others such as ‘all reasonable efforts’ are new.

There is much to welcome and discuss in these standards, but I would start with an edit. This would be for policy clarity, not drafting elegance.

Red lines for a green solution?

The standards present the Government with a conundrum. On the one hand, with the EPBC Act declared a failure and the environment in ongoing and increasingly obvious decline, the case for reform is overwhelming and the potential of the standards as a foundation for action is great.

On the other hand, implementing standards would require a major and costly upgrade of our regulatory infrastructure, starting with what Samuel has described as a ‘quantum shift’ in the availability of environmental information.

Setting standards would also amount to drawing red lines for nature. As the Brexit negotiations most-recently illustrate, red lines can attract a world of political pain.

Image by Shell brown from Pixabay

2040 foresight – humanity’s shifting niche in the Anthropocene

Banking on yesterday’s ‘normal’ is the worst form of denial

By David Salt

As 2020 draws to a close everyone is praying for a return to ‘normal’. We crave free social (mask-less) interaction and we all want to go to the beach for a swim without fear of catastrophic bush fires. And we want to jump on a plane and head to exotic locations and not worry about our health. And we also want the economy to be strong so we and our children are gainfully employed.

None of this was available to us in 2020 but hopes are high for decent rain this summer (in Australia, anyway), and effective CoVID vaccines are being deployed so there are growing expectations that we may now be able to control the CoVID pandemic.

But does that mean a return to ‘normal’ is coming our way? Our political leaders would like you to believe it; and all the rhetoric is about firing up the economy so the good times can flow.

Three new reports on what climate change is doing to our environment, society and economy paint a very different picture.

Bye bye world heritage

Last week the IUCN released a sobering Outlook report on the condition and trajectory of the planet’s 252 natural World Heritage sites. It found that a third of these sites are being threatened by climate change.

The outlook for five Australian World Heritage sites including the Great Barrier Reef, the Blue Mountains and the Gondwana rainforests, has deteriorated markedly in recent years. The conservation outlook for the Great Barrier Reef has worsened from “significant concern” to “critical” – the most urgent status under the IUCN system. Of course, the GBR is in serious trouble having suffered its third mass coral bleaching in five years during the 2019-20 (Black) summer.

Three years ago UNESCO’s World Heritage Centre predicted that under a business-as-usual emissions scenario all 29 coral-containing World Heritage sites would cease to exist as functioning coral reef ecosystems by the end of this century.

Keep in mind that World Heritage status is only awarded to places of outstanding universal value and where national governments make commitments to protect those values. Australia acknowledges the existential threat that climate change poses to the Great Barrier Reef but still refuses to taken any meaningful action on reducing our own emissions, let alone campaigning for better emission reductions around the world. That contradiction makes my country a major convention abuser.

Hello health blues

And if the loss of our world’s most precious natural ecosystems doesn’t sober you up, then maybe the annual report from The Lancet on Health and Climate Change will. Among other things it found:

-there were 296,000 heat-related premature deaths in people over 65 years in 2018 (a 54% increase in the last two decades),

-that global yield potential for major crops declined by 1.8–5.6% between 1981 and 2019

-145 million people face potential inundation with global mean sea-level rise of one metre. This jumps to 565 million people with a five metre sea-level rise.

These numbers put CoVID impacts into the shade but our political leaders feel free to ignore them because they range over temporal and spatial scales that lie beyond their electoral timeframes.

However, as the authors of The Lancet report note: “We cannot afford to focus attention on the COVID-19 pandemic at the expense of climate action.”

Adding up our sovereign climate risk

Mirroring The Lancet’s report but coming from the economic end of town, a new report from Four Twenty Seven (an affiliate of Moody’s) has assessed sovereign climate risk. Among other things it found:

-Heatwaves: Over 25% of the world’s population in 2040 could be in areas where the frequency and severity of hot days far exceeds local historical extremes, with negative implications for human health, labour productivity, and agriculture. In some areas of Latin America, climate change will expose 80-100% of agriculture to increased heat stress in 2040.

-Flooding: By 2040, the number of people exposed to damaging floods is predicted to rise from 2.2 billion to 3.6 billion people, or from 28% to 41% of the global population, with roughly $78 trillion, equivalent to about 57% of the world’s current GDP exposed to flooding.

-Tropical storms: Over half of the population in small island developing nations are exposed to either hurricanes and typhoons or coastal flooding amplified by sea level rise. In the United States and China alone, over $10 Trillion worth of GDP (PPP) is exposed to hurricanes and typhoons.

The new normal

These are just three reports in recent weeks. They are backed by hundreds of other reports, analyses and research programs from all sectors of society that have emerged throughout this year and over recent decades. And they all bear the same message – human induced climate change has disrupted the ‘normal’. The devastation of recent years is but a foretaste of what is to come.

Yes, we need action on carbon emissions today but we also need a real acknowledgement from our governments of what is happening around us.

In Australia we are led by a Conservative government that is in profound denial of what the ‘new normal’ means. They place their faith in technology to deliver an endlessly growing economy in which no-one needs to sacrifice a scintilla of their way of life – it’s win win all the way.

They believe the certainty of yesteryear will return with a few percentage points of extra productivity and maybe a slightly better resourced emergency services sector.

And this can be seen in their refusal to commit to zero net emissions by 2050. They claim they won’t make such a commitment till they fully understand its impact on economic growth, till they know its cost.

They believe their economic modelling of what lies over the event horizon is more robust and dependable than the hundreds and hundreds of evidence-based reports warning us of the impacts of the climate change today, tomorrow and in the coming decades.

The economy of 2050 will be so totally different, both in form and function, to the economy of 2020 that our Government’s position of using future economic cost to defend its lack of action on climate change today is fatuous, abhorrent and immoral. It is a fundamental denial of everything that’s happening around us today.

(This implicit denial also frequently spills over into explicit statements of denial. Consider yesterday’s outburst from Australia’s Resources Minister, Keith Pitt who castigated a climate change warning from the United Nations secretary-general as an inconsequential “grand statement”.)

A new niche for humanity

Our Government’s denial of what the new normal means for society leaves us vulnerable. They claim they are making Australia resilient, when in truth they are doing the opposite, leaving us exposed.

Humanity has changed the very Earth system and we are only just beginning to appreciate what life in the Anthropocene means.

Earlier this year a group of eminent Earth systems scientists asked what this new normal meant for humanity. They found that temperature increases over the coming 50 years will see the migration of 1 to 3 billion people. One of the scientists, Marten Scheffer, explains the logic behind this analysis in a short engaging YouTube clip.

Hundreds of thousands of migrants fleeing Syria’s civil war destabilised much of Europe. We still don’t know what lasting scars this migration event will have. Multiply that by a hundred, by a thousand, and the world looks quite a different place.

We live in challenging times with an uncertain future. To be better prepared for that future we need real, widespread and effective efforts to eliminate carbon emissions. But we also need our leaders to acknowledge that this world is changing, and that they (with us) need to work with that change, not deny it.

Image by Pete Linforth from Pixabay

Reforming national environmental law: first get rid of it, then fix it?

By Peter Burnett

While our country (and the world) has been gripped by the unravelling saga of the CoVID pandemic, our national government has been conducting a quiet plan to devolve most decision-making under our national environmental law, the Environment Protection and Biodiversity Conservation Act (EPBC Act), to the States, before a major review of the Act hit the deck.

I think this plan has now been derailed, though as I write, a couple of sitting days remain for cross-bench deal making in the Senate.

Some background

Regular readers will know that I often write about the EPBC Act. In part this is because I have worked with this law for a long time (both as a public servant and as a researcher) and have developed a strange kind of affection for its labyrinthine ways.

But I am also keenly interested in the performance of this legislation because its ups and downs are a reasonable proxy for the general health of Australian environmental policy. Unfortunately, the EPBC Act has been having a lot more downs than ups recently.

The Act has just undergone its second 10-year review by Professor Graeme Samuel AC. Professor Samuel was scathing in his Interim Report delivered in July. He found that the Act was ineffective and had lost the trust of business and environmentalists alike. An Auditor-General’s report tabled at the same time was equally scathing of the way the Act was being administered.

The key recommendation of Samuel’s Interim Report was that a revamped EPBC Act should be based on National Environmental Standards. These would actually set some bottom lines for environmental approvals and put an end to the current ‘tick-the-process-boxes-and-then-decide-anything-you-like’ approach.

The Government received Professor Samuel’s Final Report at the end of October 2020. The Government has yet to release it.

The ‘green tape’ narrative and ‘streamlining’ environmental decisions

In the meantime, and even after the Interim Report revealed the story of a failed law and ongoing environmental decline, the Government has maintained its single-track narrative of ‘cutting green tape’ and the need for ‘streamlining’ to increase regulatory efficiency.

In fact, the Government has long wanted to devolve Federal environmental approvals to the States and it would be fair to say that since it won the 2019 election it has been champing at the bit to make it happen.

Unfortunately for the Government, the mechanism built into the EPBC Act to allow this devolution cannot work without some mostly-minor legislative tweaks, requiring the support of a Senate it does not control.

The Government’s sense of urgency seems to have got the better of it, possibly because the Prime Minister tagged environmental devolution as one of the ingredients for a post-Covid economic recovery. Documents released under freedom of information reveal that back in February the Prime Minister’s position was that to avoid pre-empting the Samuel review, the legislative tweaks would need bipartisan support.

By August, when the ‘Streamlining Bill’ was introduced, this was no longer the Government’s position. Now, the narrative was that the Streamlining Bill, although a replica of a failed bill from back in 2014 (when Tony Abbott was in charge) and lacking any of the Samuel reforms including provision for National Environmental Standards, was in fact the first tranche of reform linked to the Samuel Review.

It was left to others to make the argument that the Streamlining Bill was pre-emptive and should not proceed ahead of Samuel’s Final Report.

Initially the Government was in a great hurry, to the point that it guillotined the vote in the House of Representatives and prevented independent MP Zali Steggall from introducing an amendment to provide for National Environmental Standards.

Still in a hurry, the Government successfully opposed two attempts to have the Bill considered by a Senate Committee. Eventually however it rolled over and supported a third motion to refer the bill to committee; presumably when it became clear that the Government would not have any chance or wooing the cross-bench without committee consideration.

Senate Inquiry

So the Senate Environment and Communications Committee established an Inquiry into the Bill. Normally these things take some months, but on this occasion the Inquiry was to report within several weeks, which meant that submissions had to be written quickly and a hearing conducted within days of submissions closing.

Was this part of a deal with the cross-bench, I wondered? Is there any point in dropping everything to dash off a submission? Putting my doubts aside I wrote a submission and was lucky enough to be invited to give evidence before this Committee.

Although I had often appeared before Senate Estimates Committees as a public servant, this was the first time in which I had appeared on my own behalf and was free to say pretty much anything I wanted.

I have to say I enjoyed the experience. It was good to be having my say and to be heard by members of our apex institution.

What’s more, the questions were relevant and informed. A colleague had recently been on the receiving end of some politically-loaded questions in another committee, but there were no such antics here.

The Committee reported quickly. At the end of the day the crucial cross-bench Senators accepted the argument that it was pre-emptive to be pushing this bill through ahead of Samuel’s Final Report.

So it looks like the Streamlining Bill will not pass before that report is tabled; this must occur before the end of February.

An unexpected revelation

Sometimes this kind of proceeding produces some unexpected revelations, which is one reason that governments don’t like them: such developments can derail a carefully constructed narrative.

On this occasion, officials revealed that in addition to the Streamlining Bill, the Government had drafted, but not tabled, a provision to provide for the making of National Environmental Standards by legislative instrument (ie, something similar to what Ms Zali Steggall MP had tried to do).

This is significant because by long-standing policy, set out in the Legislation Handbook, legislation is only drafted once the Government has approved the underlying policy. In other words, laws are only drafted for introduction. The system does not allow for drafting on a contingent or speculative basis, including by individual ministers.

The implication is that the Government has actually decided to support the idea of legislated National Environmental Standards. The fact that draft legislation for the standards has not been tabled suggests one of two things.

The first is that the government is breaking its own rules by drafting legislation on a contingent basis, presumably to introduce only if it couldn’t get its Streamlining Bill through. This would be an attempt to game the Senate and is a display of bad faith.

An alternative explanation is that there was some kind of rear-guard action within the Government, most likely a move from conservatives to block legislation for national standards that might constrain State development approvals under devolved arrangements.

Both explanations seem somewhat unikely but I favour the second, as a display of bad faith towards the Senate could cruel the pitch for other government proposals. If I am right, the cause of reforming biodiversity and heritage protections could be as fraught as that of climate policy reform.

Assuming the Streamlining Bill is dead, the next step is for the Government to table the Samuel Review. Hopefully this will trigger a wide-ranging debate on the environment, focused around a set of draft environmental standards and overwhelm the government’s one-track focus on ‘green tape’.

In my view we have never really had this debate and it would be good for us all to be confronted with the question, in the broad, of how much environment protection we want and whether we are prepared to pay for it.

But will the Government table an effective reform package to replace an Act which, all seem to agree, is a failure? Or, based on the climate policy precedent, should we expect a continued one-track focus on ‘green tape’ and ‘reforms’ that do little to address the policy failures that Professor Samuel and the Auditor General have identified?

Image by 3Dinaani from Pixabay

2020 hindsight

Earth, fire and water; and a deep foreboding on opportunities lost

By David Salt

Today [as I write this] is the first day of the Australian summer*. A hot north westerly is whipping up the temperature to an ‘uncomfortable’ 35 degrees C. I’d like to say ‘unseasonable’ but increasingly the ‘seasons’ make no sense. They did once, but that was about 20 years ago.

What a year

This time last year (December 2019) a fire raged down on the NSW south coast, unseasonably early but nothing to lose sleep over; fires, after all, are a natural part of the Australian environment.

But this fire simply didn’t go out. It burnt for months; chewing up forests, wildlife, homes, people, infrastructure and dreams. It stole Xmas, killed New Years, and blanketed eastern Australia in choking noxious fumes (closing down cities and killing scores of people in the process).

Then our city of Canberra was clobbered by an unseasonal hail storm (actually, it was the season for hail storms but this one was unprecedented in its ferocity). Forty thousand cars were destroyed in less than 15 minutes!

You may not believe this, but many of us joked at the time that given the run of disasters we had just endured that a plague just had to be just around the corner (CoVID had not been named at that instant)…

And now it is summer again. Temperature records are again being broken*; fires are again breaking out across Australia (though not with the intensity or scale of last year because it’s been raining); and forecasts are (again) for another mass coral bleaching.

Expect severe conditions, expect disruption; welcome to the Anthropocene.

By the way, everything we’ve experienced in the past year has been long forecast by science, if not in detail then definitely in spirit. However, our political leaders, experts in discounting long-term uncertainty while capitalising on short-term political expediency, have encouraged us not to worry about counting the costs decades down the line. (In fact, Prime Minister Morrison claims he can’t sign up to net zero by 2050 because he’s not able to count the costs 30 years ahead.)

But think where things were only 20 years ago. Imagine what we might have achieved if we had been honestly thinking about the costs we (and our children) would be paying in a couple of decades.

Twenty years in hindsight

So what were you doing, thinking and worrying about 20 years ago? Because Australia’s Radio National, along with many other organisations, journalists and academics (and the odd errant blogger), have been asking how has the world developed over the past 20 years – one fifth of the way into the first century of this new millennium. Among other things they looked at pop culture, technology, Indigenous affairs and health (apparently in the high income world in the last 20 years we’ve done well on aids and infectious disease but not so well on heart disease and obesity – who’d have thought).

What I haven’t seen is too many commentaries on sustainability policy over the last two decades – and yet there is so much to comment on in this space in Australia. Some pretty big ‘landmark’ laws and policies were put in place but have they addressed the challenges they were created for?

1999 (pretty much the same thing as 2000 so I include it in my 2020 retrospective) saw the launch of the Environmental Protection and Biodiversity Conservation (EPBC) Act aimed at protecting our nation’s natural values (and specifically our biodiversity). It’s undergone two decadal independent reviews; has been the centre of an ongoing fight about green tape, farmer’s rights to clear and miner’s rights to destroy. It’s generated a lot of heat and light, and been the whipping boy of every conservative government we’ve had in that time (even though it was established by a conservative government). What it hasn’t done is slow or reverse Australia’s biodiversity crisis and during its operation we’ve lost a species of bat, skink and rat (and probably a whole lot more that we haven’t even noticed). More recently, we’ve watched on while once common icons like Tasmanian devils, koalas and platypuses have slid towards the precipice.

Then there was the National Water Initiative launched in 2004 aimed at dealing with the over-allocation of water to agriculture from Australia’s major river systems in the Murray-Darling Basin. This was followed a $10bn national plan in 2007, built around the nation’s first national Water Act, that aimed to place water management in the Murray-Darling basin on a sustainable footing and in particular to halt salinity, reverse the collapse of the Coorong and Lower Lakes in South Australia and the widespread degradation of wetlands, floodplain forests, native fish and waterbirds across the Basin. The Basin Plan made under the Water Act has been a failure. Remorseless politicking by irrigators and farmer lobby groups, and gaming of the system by the states saw cuts to the amounts of water provided for environmental flows, failing governance, water theft and cheating. Toxic algal blooms, dying towns and mass fish kills were the result.

And who could forget our merry lark involving putting a price on carbon? The Greens Party managed to block the first serious effort (something called the Carbon Pollution Reduction Scheme) in a tangled dance involving a mega-maniacal Prime Minister named Rudd, a Machiavellian-styled opposition leader called Abbott and a failed international consensus staged in Copenhagen. It all came to tears in 2009 and directly led to the toppling of Rudd the following year (opening up a torrid decade of political instability at the national level).

The next serious effort was undertaken by the Gillard Government and resulted in a Clean Energy Plan that came with a carbon price scheme launched in mid 2012. And it worked. It’s been estimated that the scheme cut carbon emissions by as much as 17 million tonnes, the biggest annual reduction in greenhouse gas emissions in 24 years of records in 2013 as the carbon tax helped drive a large drop in pollution from the electricity sector. But it also didn’t work in that the incoming Abbott Government was able to dismantle the scheme and Australia has gone from being a world leader in tackling carbon emissions to a world laggard.

No certainty

Of course, since then a lot of bad stuff has happened to Australia’s environment (and its people). In addition to the mass fish kills we’ve endured mass coral bleachings, collapsing ecosystems on land and unprecedented wild fires.

We’ve seen the brutal rise of despotism and nepotism around the world, the collapse of traditional media, the contraction of the rule of law, and an epidemic of conspiracy and fake news.

Looking back from the present day, the world of two decades ago seems a very different place. Back then I thought science held the answer, and truth would eventually win out. By and large, however, we have failed to meet the environmental challenges facing our nation (biodiversity, water security and climate emissions as three important examples), and we are increasingly unable to trust the very words that fill our multiple media feeds.

On the plus side, a new generation of young people are asking hard questions about the environment they are inheriting. They are prepared to talk truth to power, are questioning the paradigm of unfettered economic growth and are demanding climate justice in an increasingly unfair world.

There is no certainty about what the future holds, but with 40 years of climate change already locked in even if we could stop all carbon emissions tomorrow, we know that 2040 will be a place very different from the space we occupy today.

Banner image by Gerd Altmann from Pixabay

*Mercury rising: And, as you may now have heard, on this the first day of summer, the data (from the Bureau of Meteorology) is in and Australia just had its warmest spring (and November) on record! The national mean temperature for spring was 2.03ºC above the 1961-1990 average, the first ever spring with an anomaly above 2ºC.