Unleashing the environmental watchdogs?

Court tells NSW EPA to do its duty and make policies to protect the state environment from climate change

By Peter Burnett

Governments know that most of us would place more trust in a seller of used cars than in a politician.

One by-product of this lack of trust is that politicians like to tell us that they are solving a problem by setting up an independent authority. Or, better still, an ‘independent watchdog’. People you can trust.

The trouble is, governments also like to be in control; especially in this age of ‘gotcha’ political journalism. Governments don’t like to create legitimate opportunities for public officials, including those who staff independent authorities, to embarrass, or, worse, defy them.

So, when governments establish these bodies, often enshrining their independence in law, they do so in the knowledge that there are ‘back door’ ways to control them.

Watchdog on a leash

One obvious method of controlling the watchdog is to punish ‘bad’ behaviour by reducing rations. A recent example is the Morrison government’s decision to cut the Auditor General’s budget, just when the auditor is proving very successful at sniffing out corruption in government grant programs — think ‘Sports Rorts’ and ‘Car Porks’.

Another approach is to nobble the authority in plain sight. Federal environment minister Sussan Ley took this option in response to a recent recommendation to create an ‘independent cop on the beat’ to oversee the devolution of environmental approval powers under the Environment Protection and Biodiversity Conservation (EPBC) Act.

While the independent Environment Assurance Commissioner proposed by Minister Ley has superficial appeal, the bill establishing this ‘watchdog’ also puts him or her on a leash by requiring them to seek the minister’s input to their annual workplan, to report to the minister rather than Parliament, and not to investigate individual cases.

If the minister manages to get this bill through the Senate, which is currently looking unlikely, the minister may get to have her (watchdog) cake while eating (leashing) it too.

The case of Bushfire Survivors for Climate Action v the EPA

One recent case that does not fit so comfortably into this theory involves the NSW Environment Protection Authority (EPA) and its engagement with climate change.

A group of bushfire survivors sued the EPA in the Land and Environment Court to compel them to develop policies to protect the state environment from climate change.

Given that the EPA’s founding legislation makes no mention of climate change, I would have expected it to argue that climate change was not part of its brief. However, when the case came to court, the EPA conceded that it did have power to address climate change. Instead of arguing a lack of power, it raised two technical legal arguments as to why it shouldn’t be forced by the court to exercise its climate powers.

The first argument was based on the fact that the EPA’s powers to develop environmental policies and standards are expressed in broad general terms. Because the EPA had indeed been getting on with the job of developing policies and standards on various environmental issues, the EPA argued that the court could not and should not intervene to tell it to develop a policy on this specific topic at this particular time.

In other words, given the EPA’s broad and multi-faceted role, the Court should not hijack the EPA’s agenda, which was a matter for its own expert judgement over time.

The second argument was a back-up, in case it lost the first argument. The EPA said that it had in fact complied with any duty it might have to deal with climate change, by issuing policies and plans that dealt with climate change in various minor ways.

For example, the EPA’s Regulatory Strategy 2021-24 identified climate change as a ‘global challenge’ and set out various ways in which it would contribute to addressing it, including by ‘encouraging’ industry to respond to climate risks and by reporting on NSW government (ie not EPA) climate policies in the State of the Environment Report.

Chief Judge Preston rejected both these arguments and directed the EPA to ‘develop environmental quality objectives, guidelines and policies to ensure environment protection from climate change’.

In effect, the Court said that while the EPA’s duty to develop environmental policies was indeed cast in general terms, giving the EPA significant discretion as to how it should go about its business, this duty would require, at a minimum, that the EPA address threats of greater magnitude and impact, obviously including climate change.

By implication, it would be irrational to fix small problems while ignoring big ones. (Irrationality is one of the few grounds on which a court can intervene in the exercise of administrative discretion).

What’s going on here?

But back to the theory of governments exercising back door control. If the EPA had the power all along to address climate change, why hadn’t they done so in any substantive way?

The reasons might have been cultural. Given that the EPA’s founding legislation makes no mention of climate change, and that its regulatory heritage goes all the way back to the regulation of ‘smoke stack’ industries under the NSW Clean Air Act of 1961, it may have been that the EPA simply saw climate policy as falling outside its mandate.

Alternatively, under the theory of backdoor control, perhaps the NSW government had been whispering in the EPA’s ear, or rejecting climate-related budget bids, all along, without this being public knowledge.

In any event, the government’s response to the court case certainly doesn’t fit the theory.

I had expected them to announce that they would be appealing the decision. If nothing else, statements in the High Court about the ‘irrationality’ ground being one to invoke only in extreme cases certainly suggest an appeal would have some prospects.

But in a surprising and refreshing development NSW Energy and Environment Minister Matt Kean announced on Friday that the government would not be appealing the decision, saying that “the Board and myself have decided … we’ll be putting in place the policies that are needed to give effect to the court ruling”.

Not only that, but “in fact, we’ll be doing everything necessary to give it full effect … [this] is significant because we want to use all our agencies, all the levers within government, to set the quality objectives, guidelines and policies to ensure that we protect the environment from climate change, as we should be doing”…

I suspect this unexpected embracing of a loss in court is mostly down to Kean himself, who certainly seems to be an ‘out-of-the-box’ politician. I reckon he would have had a hard time winning the NSW Cabinet over to this approach of leaning into the wind.

Here comes Matt Kean

But more power to his arm. When Kean first annoyed the Prime Minister last year by calling for stronger action on climate change, Morrison commented that most federal ministers ‘wouldn’t even know who Matt Kean was.’

I can’t think of a better way to raise one’s profile than by having the Prime Minister tell the media that one has no profile!

In any event, I have a feeling that if Kean doesn’t already have a national profile, he soon will.

Image by monicore from Pixabay

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