Crunch time for reform of national environmental law

Does the Government’s ‘pathway for reforming national environmental law’ lead anywhere?

By Peter Burnett

With Parliament rising this Thursday for the winter recess, this week is crunch time for reform of Australia’s national environmental law, the Environment Protection and Biodiversity Conservation Act 1999 (EPBC Act).

When Environment Minister Sussan Ley popped up to address the National Press Club last Tuesday, and simultaneously released a document and timeline under the title ‘A pathway for reforming national environmental law’, it was clear that the push was on to get the government’s environmental reform agenda through, before MPs leave Canberra’s cold winter behind for their (mostly) warmer electorates.

The story so far

The EPBC Act must be reviewed every 10 years. In 2020 the second such review was undertaken by Professor Graeme Samuel, who submitted an interim report last June and a final report in October.

Professor Samuel was very critical of the Act, and the government’s administration of it, in both these reports. So was the Auditor General, who also released a highly critical report in June.

While it might seem that the government were stung into action by the release of two critical reports last June, it seems more likely that they wanted to capitalise on the sense of urgency created by these reports to pursue their own agenda. This agenda was confined to one of the many issues raised in the Review, that of regulatory duplication and overlap, or what the government terms ‘green tape’.

In any event, the government responded without waiting for the final Samuel Report, introducing an EPBC ‘Streamlining Bill’ last August, guillotining it through the House of Representatives and introducing it in the Senate, where it became stuck in November, following a Senate Committee Inquiry.

In that Inquiry, three key cross-benchers – Senators Rex Patrick, Jacqui Lambie and Stirling Griff – sided with Labor and the Greens in opposing what they saw as a rushed attempt to devolve environmental decision-making to the states.

In response, and no doubt seeking to win over these key votes, the government introduced a second bill, the EPBC ‘Standards and Assurance Bill’ early this year. This Bill provided for the environment minister to set national environmental standards and for an independent ‘watchdog’ over the new devolved arrangements, the Environment Assurance Commissioner.

The government also announced that the first and interim set of national environmental standards would reflect the existing (and much criticised) Act, rather than the new draft standards that Professor Samuel had included in his final report.

Like the Streamlining Bill, the Standards and Assurance Bill was referred to a Senate Inquiry, which reported earlier this month.

This time the position of the three critical cross-benchers is less clear, as only Senator Patrick prepared a dissenting report. However, Senator Lambie later commented to the media.

Senator Patrick was critical of both the standards and the Assurance Commissioner. He was concerned that the government’s proposed standards were much weaker than Professor Samuel had recommended. He was also critical of the fact that the standards would be made by the minister rather than by Parliament.

As to the Assurance Commissioner, Senator Patrick’s view was that, for the watchdog to be effective, ‘it must have a sharp set of teeth.’

Quoted later in The Guardian, Senator Lambie said was her usual feisty self but did not rule out compromise. The reforms would be reforms would be ‘dead in the water if [Minister Ley] doesn’t tighten up the standards’ she said.

Woo any waverers while also preparing for loss

While Senator Lambie hasn’t ruled out compromise, the government have made it clear that it will not compromise on devolving many EPBC decisions to the states and starting out with standards that merely reflect the current law.

However, it clearly feels vulnerable to the criticism that it has simply cherry-picked Professor Samuel’s recommendations, something that he warned against in his report.

As a result, Minister Ley has released a document entitled ‘A pathway for reforming national environmental law’, supported by a proposed timeline depicting four stages of reform through to 2024.

The problem with this pathway is that it contains very little of substance beyond what has already put on the table. The pathway and timeline are generic; they outline a staged process and contain a commitment to consultation.

However, the pathway could lead to anywhere or to nowhere in particular. There is no vision, no sense of where the government wants to go in terms of substantive policy, beyond the barebones commitment to moving to standards-based decisions.

Left with questions

As a result of the government’s decision not to respond to the Samuel Review, but instead to start a reform process leading who-knows-where, we are left with some big questions.

Does the government agree with Professor Samuel that ‘Australia’s natural environment and iconic places are in an overall state of decline in the under increasing threat’? We do not know.

Do they agree with him that ‘broad restoration is required to address past loss, build resilience and reverse the current trajectory of environmental decline’? We do not know.

Do they agree with Professor Samuel that ‘to shy away from the fundamental reforms proposed by this Review is to accept the continued decline of our iconic places and the extinction of our most threatened plants, animals and ecosystems’? In my view, clearly not, although the government is trying to build a credible argument to say otherwise.

Will the government manage to secure the vote of at least one of the three key cross-bench Senators to get this hollow plan through the Parliament? We’ll know very soon, possibly even before you read this.

Image by Seashalia Gibb from Pixabay.

Risky business: When dealing with complexity, it all comes down to trust.

Trust is the cornerstone of sustainability in an uncertain world

By David Salt

Humans are lousy at risk assessment. In some situations it’s close to non-existent. I have a very clear memory of how poor I was at calculating risk when the chips were down.

When my wife was in hospital delivering our first child, things didn’t go to plan; the plan being a short, easy, natural birth unassisted by pain relief. What actually happened was a long and painful labour which ended in an emergency caesarean. During this trial, after a seemingly endless and traumatic labour, the doctor offered my wife an epidural (a local anaesthetic in to the space around the spinal nerves in the lower back) to ease her suffering. It was in the early hours of the morning, we were at our wit’s end, and were open to any medical intervention that would ease my wife’s pain. However, before the epidural could be delivered, the doctor first needed us to sign a form acknowledging that we had had explained to us all the risks associated with the injection. These ranged from a 1-in-a-hundred chance of feeling nauseous to a 1-in-a-ten thousand chance of paraplegia or even death. We simply didn’t care, my wife needed an intervention. The doctor thought an epidural was sensible; we signed the form, the injection was given and relief was found.

Those risk numbers I just ‘quoted’ I made up. That’s because I really can’t remember what we were told. My wife can’t remember the whole episode. I was pretty stressed out, too. However, I do remember there was a risk, a low risk, of catastrophic outcomes of paraplegia and death.

I also remember being appalled that we were being asked to consider these possible catastrophic outcomes when we were so stressed already; it only added to our trauma. I assumed it was simply to give the hospital cover from litigation if things turned pear shaped. But, I thought, there had to be a better way.

That was many years ago. The pain and anxiety is long forgotten but the memory of my incapacity to rationally consider risk remains very strong.

Clots in the system

Fast forward to now, the end phase (hopefully) of a global pandemic. The risk assessment most of us (in Australia) are making is ‘should I get vaccinated’? For older people, like me, that means a jab of AstraZeneca, but a couple of people have died from a rare side effect involving blood clotting.

According to the Australian Government, the chances of getting this serious but rare side effect (called thrombosis with thrombocytopenia syndrome or TTS) is four to six in a million people for the AstraZeneca vaccine. About one in four people with this condition may die.

Attempting to work out whether it’s worth the risk, I phrase it like this: there’s approximately a 1-in-a-million chance of dying of TTS from getting the AstraZeneca jab! But if corona breaks out we know it can, in some situations, kill over 1 in every hundred people*. Take the jab I say (and I did).

But my back-of-an-envelope risk assessment isn’t worth the shred of metaphorical paper it’s written on because, according to health experts, everything depends on context. It depends on your age, your genetic makeup, your country (and the laws of that country) and your behaviour. Each factor dramatically affects the risk calculation.

So, hoping for a more nuanced and understandable explanation of the risk I turned to the official government explanations** where they tell us:
“It is important that consumers weigh up the potential benefits and risk of harm from COVID 19 Vaccine AstraZeneca to ensure that they make a fully informed decision about receiving the vaccine.”

And then they provided numbers (cases of TTS per 100,000 vs hospitalisations and deaths prevented per 100,000 people in different age groups) for low, medium and high exposure risks to COVID.

I could not make any sense of this information (which contained no understandable summary or recommendation) and I would be surprise if your average “consumer” could do much better.

Indeed, so upset was I at the government’s effort to give the impression that it was doing a good job at helping “consumers weigh up the potential benefits and risk of harm” that my blood pressure went dangerously high (thereby significantly increasing my risk of harm).

Who do you trust?

I present these two cases of risk assessment – one personal, one affecting everyone – because I believe they reflect something well known to cognitive psychologists and decision scientists: humans are lousy at assessing risk. We are riddled with biases, delusions and faith-based truisms which skew and distort the information at hand; even if we had the mathematical acuity to combine the many factors that need to be considered as we make our risk calculation.

And yet, in spite of this, we make decisions around risk every day; and most of the time we get it right (or maybe that should read we don’t get it so badly wrong that we reap the worst consequences possible). How is that?

That’s because, even if we don’t like to acknowledge it, we follow the cues of the people and institutions we trust.

I was so angry at the hospital for forcing a risk assessment on me when I was least prepared to do it, but at the end of the day, the doctor thought an epidural was good and I trusted doctors and hospitals in general. I was able to move past the risk.

I can’t understand the government’s risk explanation around AstraZeneca but, at the end of the day, I do trust most of the people advocating AstraZeneca for the over 50s (including Australian Nobel laureate Peter Doherty, who had one himself), so I got the jab.

In a complex world with growing uncertainty, trust enables us to move forward. Or, conversely, when we stop trusting the institutions upon which our society is based (think governments, the rule of law, science, emergency services), our capacity to deal with risk is also lost.

Risky business

Which is why recent trends suggesting trust in governments in many OECD countries is deteriorating (and particularly in the supposed leader of the free world, the USA) we should all be very worried.

The future is increasingly uncertain. Report after report (such as on climate change or biodiversity decline or land degradation or pollution) is telling us we are moving in the wrong direction, often at an accelerating pace. We are living unsustainably with dark and risky consequences for the generations to come.

At the very time we should be placing a premium on trust and cooperation to help us navigate the choppy waters ahead, our political leaders seem instead hell bent on ramping up prejudice and tribal fear. Populism and nationalism seem to be winning formula, trust seems to be the victim.

Australia’s traumatic Black Summer and the ongoing unravelling story of the COVID pandemic tells us the world is an unpredictable and risky place. The best response would be a concerted effort to build up the trust bank in regards to government and our many important institutions. We need transparency and accountability around all forms of decision making, and a rock solid foundation of integrity upon which we can reliably place our trust.

If we believed in the manner in which decisions were being made by our elected leaders then we would all be in a much better position when it came to making our own decisions in the face of enormous (and often growing) uncertainty and risk. Trust me on this.

Image by Gerd Altmann from Pixabay

*According to some calculations I’ve read, while COVID poses a real and present threat, you’re around 12 times more likely to die by drowning; around 30 times more likely to die while driving a car; and 170 times more likely to die during a Caesarean.

**It’s important to point out that I read this vaccine advice on 11 June. I looked at this site a month earlier and the advice was different in terms of details, though the overall approach was the same. On both occasions their explanations and scenarios were essentially meaningless to me.

Sharma v Minister for the Environment

A big win for children on climate change, but for how long?

By Peter Burnett

Never underestimate children. Last week I was telling my family, over dinner, about a recent decision by Justice Bromberg in the Federal Court, concerning climate change. You’ve probably seen media reports of the case, Sharma v Minister for the Environment; in part because it features a group of children.

“The case was brought by half a dozen teenagers,” I pronounced, pleased to be able to talk about my work, “represented by a nun in her eighties.

“There were eight children,” corrected my 11-year-old granddaughter, who is in Year 6.

Well picked up granddaughter, there were indeed eight.

While my main purpose here is to discuss the court case, I have to say it’s heart-warming to see such awareness in one so young. After all, the case concerned her future. Yet it is also heart rending, given the Court’s finding that the climate future facing today’s children was ‘potentially catastrophic’.

The court challenge

The children sought a declaration that the federal environment minister owed them a duty of care in relation to a proposal by a subsidiary of Whitehaven Coal to undertake a major expansion of its Vickery mine in northern NSW.

The Environment Minister came into the equation because the mine could only proceed if she approved it under the EPBC Act, an approval the minister had not yet given.

The expansion would extract an additional 33 million tonnes of coal over 25 years, which would generate 100 million tonnes of C0₂ when burned.

This is equivalent to about a quarter of Australia’s annual emissions. Although the Court found that, in isolation, these emissions would result in a global temperature increase of only one eighteen-thousandth of a degree Celsius, it rejected an argument that it should disregard this increase as negligible under a legal rule known as de minimis.

The argument for the Minister owing a duty of care was that potentially catastrophic future climate impacts were the foreseeable result of approving the mine and that the children were so vulnerable and so closely and directly affected by a decision under the control of the Minister that she ought to take reasonable care to avoid personal injury to them.

The Minister’s arguments in reply were based on the EPBC Act being a statutory scheme that should, for reasons of both principle and legal interpretation, be regarded as not amenable to common law principles of negligence. A common law duty of care would, the Minister argued, skew her regulatory task.

Interestingly, the minister did not challenge evidence from Emeritus Professor Will Steffen and other experts about the future impacts of climate change on the children. Clearly the government did not want to open itself to accusations of denialism by putting the facts in question, and so it relied exclusively on legal arguments.

The court decision

The Court accepted the argument that the minister owed the children a duty of care not to injure them when exercising her power under the EPBC Act to approve or not approve the mine extension. However, because the judge was not satisfied that there was a reasonable apprehension that this duty would be breached (basically because it was too early to know what the minister might decide), he refused to grant an injunction.

This simple decision sits atop nearly 150 pages of complex legal analysis about the law of negligence, the circumstances in which the courts might find a novel duty of care, such as the one here, and the interaction between statutory schemes such as the EPBC Act and the common law of negligence.

Implications of the decision

There’s enough raw material in this decision for a PhD thesis. So for present circumstances, let’s just look at implications and prospects.

If the decision stands, the implication of the case for decisions under the EPBC Act is that the Minister, when considering whether to approve a development, must now turn her mind to an additional mandatory consideration, the likelihood of personal injury, at least to children if not to others.

This would most likely be of relevance in situations similar to this case; ie, to very large fossil fuel projects, given their climate impacts. The ironic fact that the EPBC Act does not directly regulate climate impacts would not affect this outcome.

It is also conceivable that the precedent might apply to other projects with very large impacts, for example where a project might lead to extensive contamination of the waters of the Great Artesian Basin.

The decision also has potential implications far beyond the EPBC Act. If this duty exists under that Act, it may also apply to other government decisions, possibly even to Cabinet and Budget decisions. And if the duty applies to the minister in approving a mine, it may also apply to those, like Whitehaven, who build and operate mines.

The prospects of the decision standing

This is only the latest in a series of cases which have put fairly adventurous arguments before the courts in the hope of giving the EPBC Act some real teeth. Unlike most of the other cases, on this occasion the arguments have been successful.

However, I think this decision will be appealed and overturned. The arguments would be complex, but in my view, the one most likely to succeed is straight-forward: that the EPBC Act contains a specific direction to the minister to the effect that, in deciding whether or not to approve a development, he or she must only consider the things listed in the relevant division of the Act. That division makes no mention of a duty of care.

If I am right, in one sense it will be back to business as usual, with the Environment Minister approving individual developments on the basis that their impacts are ‘not unacceptable’, while the environment continues to decline.

However, climate litigation is becoming more common around the world as climate risks and impacts increase. Corporations are becoming increasingly responsive to those risks. Even if the case is reversed on appeal, the decision will have given Australian businesses pause for thought and can only add to the momentum towards ‘net zero by 2050′, even in the absence of a government policy to that effect.

Image by Wi Pa from Pixabay

Out of control with a smidgen of humility

We do so much better when we acknowledge we aren’t in control

By David Salt

The wealthier a country or an individual household, the less concerned they were toward the seriousness of climate change. So concluded French and Australian researchers reviewing survey data from 10,000 households in 11 OECD countries. They hypothesized that richer households (and countries) are less concerned about climate change because wealth provides a buffer against some of the related risks. This leads people in wealthier countries and households to perceive a greater sense of control over climate change impacts, which in turn results in lower levels of concern.

Pretty disturbing, huh?

And yet it’s quite in keeping with Australia’s laggardly response to the growing spectre of climate change. Coral reefs can bleach and biodiversity can collapse but, as a developed nation, we continue to elect conservative governments that turn their back on climate change using misleading arguments about the cost of climate action on the economy (misleading and dishonest because it never factors in the cost of not acting – but that would involve listening to the science!). Whereas our poorer Pacific neighbours are very concerned about climate change and begging for us to do more yet we happily ignore them and their concerns.

And yet, in recent years the threat (and reality) of not being in control has brought out the best in many Australians (just not so much in our national government).

A Black Summer

Australians have considerable experience with bushfires but the fire season of 2019/20 – our Black Summer – was of a scale without precedent. The forest ecosystems along our eastern seaboard all went up in flames, and there was nothing anyone could do about it.

Prior to this fiery catastrophe, an eminent group of retired emergency workers pleaded with the government to take heed of the climate science, predicting a catastrophic fire season was just around the corner; but they were ignored.

“Don’t tell us what to do,” our national government effectively said. “We’re in control, we’ve got it covered.” Of course, as events were to show, they didn’t.

There was enormous loss of property and life; although given the intensity and scale of the conflagration mercifully few people perished when compared to earlier wildfires (173 people died in Victoria’s Black Saturday fire of 2009 as compared to 34 throughout the much bigger Black Summer period).

Indeed, it was the tragedy of the 2009 Black Saturday event that changed our national mindset to how we approach big wildfires. The hard truth of these fires is that they can’t be managed and when they occur the priority has to be saving life and getting out.

To my mind, the brutal savagery of the Black Summer was a wakeup call to our national identity. We’re not actually in control, and we should set our priorities accordingly.

The silver lining

We were still licking our wounds from the fires when a new uncontrollable menace began rolling around the world at the beginning of 2020 in the form of a novel corona virus, slaying the sick and aged in its wake.

Overseas, every populist leader who downplayed the threat of CoVid 19 in order to keep their economies chugging along (think Trump, Johnson, Bolsonaro and Duterte) invited mass death into their populations with legacies still to be reckoned. A sense of superiority and control mixed with a fair degree of libertarian dismissal about the fate of others proved to be a fertile pasture for an incredibly infectious and highly lethal disease.

Back here we watched unfolding events with an uncharacteristic humility and respect for science. We had just been defeated by an environmental disturbance that had scorched the nation, and we demanded our leaders to do more than pay lip service to the science of epidemiology. We also acknowledged that we were all in this together, as we had done during the Black Summer, and that everyone needed to do their part.

Combine this with our island status and a modular federal constitution that enabled state governments to block internal movement, and Australia was the poster child of the pandemic. We eliminated the virus on our shores and the government dropped its ideological control and spent up big to keep the economic home-fires going.

However, in a globalised world, no country is an island, even if it occupies one. In Australia we saw multiple breaches of our quarantine defences as people returned from overseas. Victoria’s second wave was a massive wakeup call that this virus needed to be taken seriously and, again, as a nation we observed the rules (even when it meant constraining our personal liberties), trusted the judgements of our science experts and we prevailed. This thing was bigger than any individual regardless of their wealth, so we pulled together and responded well to the scientific evidence.

Victoria has now undergone two more lockdowns (we’re currently in the fourth). It is telling the nation again and again, we are not in control. And our response has been good.

Contrast that with India’s crippling outbreak when their leaders decided they had beaten the bug and declared business as usual prematurely. India, an emerging superpower, has been hobbled; it will likely never be the same again.

Giving up control

Giving up control is never easy, be it as a government with a strong ideological focus or individuals with a strong belief in their own wealth and personal freedoms. However, sometimes circumstances in the form of massive disturbances make giving up control not only possible but the desirable thing to do. Most recently we’ve seen it in the Black Summer and the pandemic, but examples of giving up control go back to the beginning of civilisation.

Researchers from Germany Italy have just published an analysis of studies on Mesopotamian civilisations that demonstrates that severe droughts actually led to society’s elites giving up control in order that their societies might cope better during these environmental crises. They showed that severe drought actually stimulated greater levels of cooperation between political elites and non-elites, and led to the development of important institutional processes that can still be seen in our societies today.

Incurable optimists (and most politicians) will often say every crisis is an opportunity. Australia, with its highly variable climate, seems to slip from environmental crisis to crisis. Maybe to really make the most of these events we need a smidgen of humility, an acknowledgement that we are not in control. If we could achieve this, then maybe we’d learn, adapt and prosper in the face of an increasingly uncertain future.

We’ve shown we do well when we pull together, when the chips are down. Let’s hope our recent experiences with fire and contagion will enable us to sustain that humility long into the future.

Image by Terri Sharp from Pixabay