Laying new foundations for environmental decisions: the fourth transformation

By Peter Burnett

My recent blogs have argued that there are five transformations implicit in Professor Graeme Samuel’s review of national environmental law*, to which the Albanese government will respond in early December.

The first three transformations were to:

pursue pre-defined environmental outcomes rather than simply following legal process
take Indigenous knowledge and values seriously
simplify the processes of environmental regulation and harmonise regulatory outcomes between federal and state systems.

This blog concerns the fourth transformation, which is to lay new foundations for quality environmental decisions.

Money is the root of all … problems

One of the biggest problems with the EPBC Act is that it is a ‘jumbo jet’ of an Act run on a budget fit for a propeller-driven plane.

It has been like that during most of the 20+ years in which the Act has operated.

The original problem was that the environment minister behind the Act, Senator Robert Hill, pulled off something of a coup in getting the EPBC reforms through Cabinet and the Parliament. Many of Hill’s colleagues would likely have opposed the Bill if they had fully understood its scope and power.

As good as he was, Hill was not a magician and scoring a bucket of ‘new’ money to operate a new law with a much wider scope than the laws it replaced was a bridge too far.

The EPBC Act has had some particular financial ups and downs.

In 2007, after the Auditor-General criticised the poor implementation of provisions for protecting and conserving threatened species, the Act received a healthy injection of funds.

On the other hand, over the period 2013-2022, and especially following the notorious Abbott/Hockey ‘horror budget’ of 2014, resources for the environment portfolio, including the EPBC Act, were cut by around 40%.

The new Albanese government has just put some money back in, but it has started from a very low base. The Act remains significantly under-resourced.

Every Act has its consequences (or not) …

The consequences of this long-term underfunding, compounded in some cases by lack of political vision or will, are that many of the foundations of the current system of protection and conservation provided for by the EPBC Act are either significantly under-done, or not done at all.

Three of the most important identified by Professor Samuel were environmental information, compliance and enforcement, and environmental planning.

He described the collection of data and information as ‘fragmented and disparate’, while compliance and enforcement had been ‘limited’ and lacked transparency.

As for planning, while the Act includes a full suite of planning provisions, Samuel found that these provisions had yielded only piecemeal approaches and ad hoc efforts at coordinated national action.

For example, ‘bioregional plans’ prepared for four of Australia’s marine bioregions have never been updated, while no bioregional plans had been prepared for any of Australia’s 89 terrestrial bioregions.

In many respects such ‘under-institutionalisation’ is a perennial problem in Australian environmental policy. So perennial in fact that (ANU) environmental policy expert Professor Steve Dovers even had a name for it: ‘policy ad-hocery and amnesia’.

Of course, this doesn’t excuse such failures.

Samuel’s fix

As we’ve seen, Professor Samuel’s proposed fix is built around the new concept of national environmental standards.

If we are to avoid the ‘on paper, but not in practice’ problem of the current law, the standards will need to be complemented by a range of supporting institutions. Samuel made a number of recommendations in that vein, including:

Extending the concept of national standards beyond on-ground environmental outcomes, to deal with requirements for transparent processes and robust decision-making, including environmental data and information; and compliance and enforcement
A national data supply chain, managed by a supply chain ‘Custodian’, guided by a strategic plan and supported by adequate investment in new information systems
Independent compliance powers for the environment department, with increased transparency and accountability; and adequate resources
A new set of planning tools which emphasise strategic approaches at national and regional levels

To go beyond regulation and encourage investment in restoration, Samuel also recommended establishing a central Trust to coordinate public and private investment. While he didn’t mention money every time he made a recommendation, there is a clear sense in his report that none of this will work unless properly funded.

Over to you Tanya

Although environment minister, Tanya Plibersek has spoken positively about implementing the Samuel reforms, there remains a significant risk that this government will repeat the mistake of the Howard government by enacting laws that are strong on paper but weak in practice.

Putting a stop to the long-term decline of Australia’s environment will take a political courage, persistence and (last but not least) major investment.

It is notoriously difficult to obtain ‘new’ money in a government Budget. The lion’s share of expenditure is already baked-in and there are many competing commands for any remaining Budget ‘headroom’.

Plibersek is about to announce the government’s design for the next generation of environmental regulation. Even if it looks very different to the EPBC Jumbo, I’m guessing the design will still be in same ‘heavy lift’ Jumbo Jet class.

But will there be provision to fill the fuel-tanks and a hire a full complement of crew?

* Independent Review of the Environment Protection and Biodiversity Conservation (EPBC) Act, 2020.

Banner image: Australia’s national environmental law was sold to us as a ‘jumbo jet’ set of protections… but then they only provided enough funds to run a propellor driven plane.
(Image by Anja from Pixabay)

A connection with tomorrow’s citizens – calling for a Ministry for the Future

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By David Salt

In a year of climate disasters, you’ve likely forgotten about what happened in India back in March and April. The country experienced its worst heatwave on record in terms of high temperatures, duration and geographical extent. At the end of April around 70% of India was stricken by the ‘event’, killing hundreds of people (probably a gross underestimate), and reducing crop yields by up to 35% in some regions. Heat waves are common in India but the science is suggesting they are now being supercharged by climate change. And things only promise to get worse.

I remember being appalled by the news reports I was reading at the time. Surely, when one of the world’s most populous nations is literally withering under global warming, right in front of our eyes, surely people start to act? Right?

Wrong! Just consider the hyperbolic rhetoric flowing from the just completed COP27 climate conference and its underwhelming outcomes. (What did António Guterres, Secretary-General of the United Nations, say? Oh, that’s right: “We are on a highway to climate hell with our foot on the accelerator.”)

And, as I suggested, if you’d even heard about the Indian heatwaves, you’ve likely forgotten them following the unprecedented Pakistan floods, Europe’s killer summer, the United States devastating hurricanes or China’s record drought. We’re becoming normalized to climate catastrophes!

In any event, back in May, after hearing me ask ‘can you believe what’s happening in India?’ for the twelfth time, a colleague gave me a copy of the book The Ministry for the Future to read. He said it’s full of interesting ideas about how to deal with the growing climate crisis and it begins in India during a heatwave (‘which you keep rabbiting on about’).

Delirium and fever

I thanked him, noted that (according to its cover) Barack Obama had highly commended it (clearly very ‘worthy’), and that it was over 550 pages long in really tiny type. I got home and put it on the reading pile where I expected it to gather dust because deep down I suspected it was just another technobooster effort to get us to believe that while the challenge was big, science would ride in to save us; something I’m very dubious about (and have discussed in the past). I probably wouldn’t read it at all. (I’m so tired of ‘worthy’ being drowned by ‘hypocrisy’.)

Then I came down with Covid, and for three days I suffered my own personal heatwave (high fever). And it was in this somewhat delirious state that I picked up The Ministry for the Future and began to read.

The opening chapter was truly nightmarish. It described a town in India trapped in an unrelenting heatwave in which almost everyone dies; except for a traumatized aid worker, Frank May, who miraculously survives but is scarred for life.

Frank searches for meaning and ends up getting to know Mary Murphy, the head of the Ministry for the Future, a group established under the Paris Agreement to work on policies that take into account the needs of future generations. How will they save the world?

Wait a sec, I asked myself. Is this real? Is there such a thing as a ‘Ministry for the Future’? And why would Mary, a former foreign minister of Ireland, show any interest in a burnt-out husk like Frank (especially when her job is about saving the world)?

Is this for real?

Well, of course, there is no such thing as the Ministry for the Future. The book was written in 2020 by science fiction author Kim Stanley Robinson (KSR). Indeed, according to its Wiki entry, the book is classified as ‘hard science fiction’; which is to say that the science presented is pretty robust (which, I gotta say, strikes me as valid; the science came over to me as authentic and realistic). And yet it’s like no sci fi I’ve ever read. Indeed, I’d place it in that little known genre, ‘hard policy fiction’.

The plot begins in 2025 with a killer heat wave in India (Kim got that wrong, it actually hit in 2022) and ambles its way into the future up until the 58^th COP meeting of the Paris Agreement and a bit beyond.

Despite my initial reluctance, I found myself enthralled by the dazzling spectrum of ideas being presented and the multitude of methods KSR employed to tell his story. Mary and Frank are central characters, and their perspectives helped ground the story, but at the same time they are peripheral to a complex tale that goes off in all directions.

The story consists of 106 relatively short chapters, but the detail in many of these (economic theory, climate science, history and governance for example) often makes the prose difficult to engage with and absorb. It really is a tour de force, but it’s not an easy or page-turning read.

I think the thing that won me over was that while it deployed science as one way of dealing with some of the impacts of climate change, it did so in a low key, realistic manner. None of the solutions he presented were silver bullets; and, more than many writers, I thought he gave a good accounting of the trade offs and gaming that occurred around every effort. He creates a very uncertain and complex future world, but one I found quite plausible.

So, while he engaged with geoengineering in the form of aerosols being dumped in the stratosphere (the dumping was done by the Indian Government in response to the heatwaves), the impact was minor (as our current science suggests it would be) and didn’t really fix the problem of over-heating. In the world of the near future KSR also dyed the Arctic sea yellow to increase its ability to reflect light (humanity having melted all the highly reflective sea ice) and drained the meltwater under glaciers to slow their disintegration (thereby reducing the speed of sea level rise).

Connecting with the future

But possibly the boldest and most fundamental change being proposed in the book was a combination of economics, technology and innovations in governance that, when combined, gave reason for people to invest in their future.

KSR sets out the idea that if today’s generation were paid to capture carbon but the payments weren’t made until well into the future, then maybe we’d take this task seriously. To this end, KSR suggests the creation of a carbon coin. Each coin represents one ton of carbon sequestered but were only paid out at some time in the future. People, companies, governments would only invest in generating carbon coin if they believed they could cash them in down the line, so they needed to trust the institutions that ran the coin (the world’s banks), and they needed to believe there was a future they could get to.

Block chain is proposed as an important technology here. It is rolled out everywhere, again led by banks and governments, because for this investment in the future to work there needed to be full accountability and transparency (not, say, like what’s happening currently with carbon offsets). Gaming the system wasn’t feasible, and with time the climate denying elites, whose power lay entrenched in the past, began to lose influence.

Simultaneously, grass roots ‘terrorism’ by disenfranchised segments of society were beginning to tear apart the status quo, and many societies were experimenting with different forms of governance that distributed power to the people (and refugees even began to be treated in a humane manner and assigned genuine rights).

Investing in the future

I wonder what it would take to get humanity to really begin investing in the future? It seems unprecedented climate disruption, with the certain prospect of greater disruption with every passing year, is not enough.

There’s way too much in The Ministry for the Future to even briefly summarise its many insights in this blog, but I hope I may have said enough to pique your interest. It took a dose of Covid to get me to read it; I hope it takes less for you to consider it.

I’ll leave you with one memorable quote from the book when an American town suddenly runs out of water:

“Remember what Margaret Thatcher said? There is no such thing as society?

…I can take them all to a place where they will eat those words or die of thirst. Because when the taps run dry, society becomes very real.”

Banner image: Image by Gerd Altmann from Pixabay

It’s ‘business as usual’, but at least there actually is plenty of business

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Senate Budget Estimates on the environment, November 2022

By Peter Burnett

Australia’s environment department has been run down over the past decade. I’m pleased to see from this month’s Estimate hearings that it’s getting extra resources. What does that mean? Let’s consider two areas, biodiversity and Indigenous heritage.

2022 is unusual in that the new Labor government has handed down a Budget, even though the previous government had already tabled the ‘normal’ Budget in March. The main objective for this extra October Budget was to fund election commitments and to de-fund programs from the former government that Labor did not support. Larger reforms have been held off until the next (normal) Budget, due in May 2023.

Some funding was redirected from old to new programs. For example, most of the money from the old ‘single touch approvals’ program, under which the former government wanted to accredit States to take environmental approval decisions under the Environment Protection and Biodiversity Conservation (EPBC) Act, was redirected into reforming the Act itself, in response to the Samuel Review of 2020.

The environment department has been run down over the last ten years. It has lost core capabilities as well as programs. The budget put $275 million over four years into strengthening corporate areas of the department.

This sounds like dull stuff, but it bodes well for building capacity to get things done. However, it’s impossible to tell how close this amount goes to enabling the department to do things it needs to be doing, like putting boots on the ground to deliver programs.

Environment is such a big agency now — covering climate and energy as well as biodiversity, water and heritage, that it’s impossible to cover everything here. So, I’ve picked just two topics of interest for a closer look, biodiversity and Indigenous heritage.

Endangered possum ‘on notice’

To illustrate just how low is the base from which the government is starting in this area, take Senator Rice’s attempts over 9 successive years to pin the government down on a credible recovery plan for the critically endangered Leadbeater’s Possum, the faunal emblem of Victoria.

Senator Rice pointed out that a 1997 recovery plan for the possum had expired in 2002 — 20 years ago. A draft replacement plan had not been sent to the Victorian government for comment until 2019; moreover, it remains a draft.

Officials assured Senator Rice that things had changed under the new government and that ‘we’ve really been asked to give this priority’. Unfortunately, however, the Threatened Species Scientific Committee had identified the need for further research as to exclusion zones for possums in forestry areas.

Apparently, funding had been identified and ‘we’d expect that the research would start quickly’. How long would it take? ‘We will be able to take on notice the exact timeframe’ said the official. ‘I’m not sure how long it needs to …’

Aargh! Leadbeater’s possum may be a particularly bad example, but it is by no means unique. Things are crook.

Modelling pathways to goals?

David Pocock is a new Independent Senator for the ACT. He displayed both a strong interest in environment and a good policy brain by asking about two government commitments, ‘no more species extinctions’ and its ‘30-by-30’ commitment (to have 30% of land and sea in reserve by 2030).

Had the government done its homework? Specifically, could the government deliver on these commitments with the $56 million p.a. it had allocated to threatened species, and the zero new funding it had allocated to the National Reserve System?

Senator Pocock pointed out that a recent academic study suggested that it would cost $1.7 billion p.a. just to save threatened species.

And another senator asked, had the government modelled the path to these goals?

‘Have you modelled this?’ has become something of an easy (but often valid) question in Estimates, asked mostly in relation to economic policies, but now it is being asked of environment policy.

For the record, no, the department had not modelled these outcomes.

The threatened species money was an election commitment — ie, the Labor Party came up with the amount while in Opposition, though we don’t know how, and Senators did not ask. So we remain in the dark about why $56 million p.a. is the right number.

On the 30 by 30, officials told the Committee that existing proposed reserves, including Indigenous Protected Areas, would get the government to 27%, leaving a 3% gap, unfunded but possibly met through no-cost additions, including Defence land (which, counter-intuitively, is often of high biodiversity quality) and State-owned land that they might be persuaded to place in reserve (presumably at their own cost of maintaining).

While modelling may not always be useful, we do need to move away from this kind of ‘a-wing-and-a-prayer’ approach.

Both major parties tend to announce modest yet very specific amounts for environment programs. The specificity implies that budgets have been carefully costed, while the modesty of the amounts involved often points to the opposite — that the calculations involved were probably based on a political calculus (‘this sounds credible’) rather than technical assessment of the costs of reaching the policy objective.

To be fair to the government, a target such as preventing threatened species loss can be delivered through multi-pronged approaches, including tighter regulation of development. Direct on-ground spending may be only one string to their bow.

The point remains however, that serious environmental policy needs to be taken more seriously than it is, and grounded in detailed strategy, fully and transparently costed.

Indigenous heritage

In 2020 Rio Tinto demolished, with state heritage approval, a 46,000-year-old Indigenous site at Juukan Gorge in the Pilbara. The site was probably of global cultural and archaeological significance. The outrage at this destruction was global; it was made worse by the fact that national safety net mechanisms to protect Indigenous heritage failed to trigger.

As part of its response to the resulting crisis, the previous government began a process of co-designing a new national First Nations’ cultural heritage regime.

The new government has allocated $14.7 million over the next four years to continue this process. Officials described an ongoing process of detailed consultation:

“It’s very much our intent to talk not only with bodies and representative bodies but actually with communities and community members in order to get feedback about, if we are going to have a structure or approach which potentially gives First Nations people and traditional owners a much greater role in decision-making about heritage protection, understanding their concerns and approaches around all of that.”

All of this is welcome, though decades overdue and prompted by an unmitigated and avoidable disaster.

As an indication of the long-term neglect of this area, one of the national safety net laws, enacted in 1984, was intended to be interim, and included that word in its title to make this clear. The Act was amended several years later — not to insert a permanent mechanism but to remove the word ‘interim’!

Also welcome is the attention the government is giving to include sites with significant Indigenous heritage values in its World Heritage program, with nominations under development for sites in Cape York, the West Kimberley, and Murujuga (also known as the Burrup Peninsula in the Pilbara, the site of over a million ancient petroglyphs of unknown origin.)

A small down payment

The Indigenous heritage processes in train are a rare example of good news in the environment portfolio.

On biodiversity, I think we could say that the new government has made a small down payment, but on a veritable mountain of environmental debt. The repayment schedule will be taxing and stretches out into the far distant future …

As to the rest, it’s a case of ‘watch this space’. Officials told Senators that the government was on track to announce its promised overhaul of national environmental law by Christmas and to legislate next year.

Here’s hoping the reforms are bold and innovative, because as Prince (now King) Charles has pointed out, we’ve been drinking in the Last Chance Saloon.

Banner image: “So, I see the Australian Government is back in the business of resourcing environmental management. I’ll believe it when I see the outcomes.” (Image by David Salt)

A resilient world is built on humility

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By David Salt

What helps keep a system resilient?

Of course, it depends on context, and everyone brings their own definitions to the party when answering this question. Which means you seldom find two people that will give you the same answer.

Yet, obviously, it’s a pretty important question.

Nine attributes

Towards the end of writing the book Resilience Thinking with Brian Walker, we asked many of the world’s most preeminent resilience scholars (including Buzz Holling) what they thought were the key lessons emerging from resilience science. They responded with a wide variety of answers, both in terms of length of response and areas covered. Even resilience experts vary in what they think is most important about the topic.

We didn’t have room in the book to reprint their responses so instead we attempted to distill their thoughts into a list of nine attributes of a resilient world. In summary, those attributes are:

1. Protect diversity: A resilient world promotes and sustains diversity in all forms (biological, landscape, social and economic).

2. Respect ecological variability: Resilience is about embracing and working with ecological variability, rather than attempting to control and reduce it.

3. Manage with modularity: Resilient systems consist of modular components. Failure in one component doesn’t collapse the system.

4. Acknowledge slow variables: There needs to be a focus on the controlling (often slowly changing) variables associated with thresholds.

5. Govern with appropriate feedbacks: A resilient world possesses tight feedbacks (but not too tight). Are the signals from cost/benefit feedbacks loosening?

6. Cultivate social capital: This is about promoting trust, well developed social networks and effective leadership.

7. Promote innovation: Resilience places an emphasis on learning, experimentation, locally developed rules and embracing change.

8. Govern with overlap: A resilient world would have institutions that include ‘redundancy’ in their governance structures, including a mix of common and private property with overlapping access rights.

9. Incorporate ecosystem services: A resilient world includes all the unpriced ecosystem services in development proposals and assessments.

It’s a good list (I’d even suggest a great list) though, of course, each attribute requires a lot of unpacking, explaining and illustration with examples (though, it did appear at the end of our book so readers who got this far were already in the frame).

But why only nine?

This was Brian’s idea: ‘Let’s set out nine attributes, one short of the biblical ten, and invite readers to suggest what attribute they would add to our list to complete it.’

I thought it was a dumb idea because a. I didn’t think we’d get much response (this was a science textbook after all), b. I suspected every reader would have their own idea (‘a resilient world would have lots of cats…’) and we’d just get a long list of pet thoughts with no emergent consistency; and c. what’s the point, how would we provide feedback to readers? This was a book afterall, not a monthly magazine.

The tenth (and 11^th) attribute

As it turned out, I was wrong on all counts (hats off to you, Brian).

We received many hundreds of suggestions; most of them thoughtful, well considered and articulate.

And, while there was an enormous variety in the ideas being put forward (and no suggestion that cats would make for a more resilient world), there were clearly four themes constantly coming to the fore: democratization, fairness, learning and humility.

And, while we hadn’t planned on a follow-up book back when Resilience Thinking came out, it became apparent a few years later that people wanted more information on how resilience thinking can be implemented. Consequently, we wrote Resilience Practice, and included a discussion on the feedback we had received from readers of Resilience Thinking at the end.

Indeed, we added fairness and humility to our list of nine. Actually, we felt that the themes of democratization, fairness, learning and humility were all implicit to varying degrees in our original list of nine attributes. Our readers, however, obviously felt that equity and humility needed to be acknowledged explicitly; so we did. Here are the added two attributes to round off our list:

10. Enshrine fairness & equity: A (desirable) resilient world would acknowledge notions of equality among people, encourage democratization so that everyone has a say, a sense of agency, and promote the notion and practice of ‘fair trade’. These attributes would encourage diversity, innovation, collaboration and effective feedbacks while promoting higher levels of social capital.

11. Exercise humility: A resilient world would acknowledge our dependence on the ecosystems that support us, allow us to appreciate the limits of our mastery, accept we have much to learn, and ensure our people are well educated about resilience and our interconnection with the biosphere.

No panacea

Even if we adopted these 11 attributes as goals (even if we achieved them) there’s no guarantee that we will side step the looming shocks and changes currently facing our planet. However, a resilient world will be better placed come what may.

Which brings me to the end of this series of (relatively) ad hoc reflections on resilience thinking, what it is and why it’s worth knowing about. I’m not suggesting it will save the world; but I am certain it will provide new insights on the nature of the challenges facing us and why the complexity of the world makes these challenges so wicked. And, indeed, if we as a society are not prepared to acknowledge the complexity that lies at the heart of the challenge of sustainability, there is little hope of us meeting that challenge.

If you enjoyed this blog and would like to read any of my earlier pieces on resilience thinking, here’s a list of topics with links:

Why can’t we fix this? Because it’s complex
Introducing the notion that ‘complexity’ lies at the heart of our big challenges

Solving sustainability – It’s complicated AND complex. Do you know the difference?
‘Complexity 101’, complex is different to being complicated but most people mix them up

Thinking resilience – navigating a complex world
Ideas about resilience comes from many areas, most them are about working with complexity

The myth of the optimal state: adaptive cycles and the birth of resilience thinking
Buzz Holling and collapsing spruce forests. More control just made it worse

The perils of command and control and the pathology of Natural Resource Management
How the belief of mastery, blind application of efficiency and vested interests leads to a decline in a system’s resilience

On identity, complexity and a ‘little’ fossil fuel project off the West Australian coast
The identity of a system drives decision making above and beyond rationality

Death of the Queen, identity and a sustainable world
Thinking of ‘the Crown’ as a complex adaptive system (RIP Queen Elizabeth II)

Losing it – the consequences of stepping over the threshold
When a system crosses a threshold, it loses its identity

To be or not to be? It’s really a question about whether we adapt or transform
Adaptation and transformation, two important concepts in resilience thinking that most people use interchangeably without much thought

Resilience – the good, the bad and the ugly
Resilience thinking is almost always inspirational, but it’s also ambiguous and politicians love hiding behind it

Banner image: Maybe if Moses had shown a little more humility, the 10 Commandments might have been a tad more resilient. (Image by Jeff Jacobs from Pixabay)

Simplicity, harmony and the third transformation

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By Peter Burnett

My recent blogs have argued that there are five transformations implicit in Professor Graeme Samuels review of national environmental law, to which the Albanese government is about to respond.* The first transformation was to be driven by environmental outcomes rather than processes, while the second was to take Indigenous knowledge and values seriously.

Today I write about the third transformation, which is to simplify the processes of environmental regulation and harmonise regulatory outcomes between federal and state systems.

No more picking cherries

Proposals for regulatory streamlining, and for the alignment of federal and state environmental assessment laws, have been floated at various times over the last 30 years. Yet this goal remains elusive. Most recently, the Morrison government tried to pass streamlining amendments to the EPBC Act, but failed in the Senate.

The problem with the former Prime Minister’s proposals was that he picked the cherries (as he would have seen them) from the reforms proposed by Professor Samuel and pushed the other reforms out into the never-never. One of the messages from the (previous) Senate was that a majority of Senators wanted action that was comprehensive, not piecemeal.

Morrison’s reforms were dressed up as streamlining; however, they were better described as a devolution of responsibility from the Commonwealth to the states. Vacating the field is not a solution to duplication (at least, not here).

To my observation, the former Prime Minister didn’t have an environmental bone in his body. I’m convinced that he wanted to achieve ‘single touch’ approvals by simply extracting the Federal government from environmental decision-making as far as possible, rather than by negotiating a genuine compatability of different systems.

Officially, maintenance of environmental standards was part of the deal. In practice, it was a hollow promise: Morrison’s initial set of draft ‘standards’ were just a collection of process-based words taken from the existing law. They would have guaranteed nothing in terms of outcomes.

Easy as 1, 2, 3 …

In contrast, Graeme Samuel recommended a harmonising of both environmental processes and outcomes between federal and state jurisdictions. This is a much more ambitious proposal, although it’s easy enough to summarise.

In effect, Samuel wants to transform not just federal environmental regulation, but state regulation as well. His template is easy as 1, 2, 3:

Develop national standards for ecologically sustainable outcomes and give these standards shape locally through regional environmental plans
Build a leading edge, risk-based decision-making system, including comprehensive environmental information, extensive policy guidance, streamlined processes and strong quality control
Accredit states to take most of the decisions, which should be easy because everyone will be singing from the same song-sheet!

But in practice …

Step 2 is perhaps the easiest of a difficult bunch. With enough time and money, information systems can be built, processes automated, helpful policy guidance prepared, and so on. All this would speed up decision-making but alone it doesn’t remove duplication or guarantee improved environmental outcomes.

It’s the harmonised standards that holds the most potential. If the standards were sufficiently high to stop environmental decline and the environmental planning processes met the standards, the feds really could accredit the states and then drop back to a ‘trust but verify’ brief.

The major challenge lies with securing the necessary genuine federal-state partnership to deliver on this ambition. The underlying problem is that, constitutionally, Federal and state environmental responsibilities overlap and, with the possible exception of the Morrison proposals above, neither side wants to play second fiddle to the other.

At first glance, the states are responsible for managing the major components of the environment — land, water and air.

However, environmental problems have been recognised increasingly over the last 50 years as ubiquitous and broad-scale — often national, sometimes global. As the pioneering ecologist Barry Commoner put it in the 1970s, ‘everything’s connected to everything else.’

Federal responsibilities for international matters, along with the federal government’s ability to use non-environmental powers such as its power to regulate corporations, have enabled the Commonwealth to deal with concerns such as the extinction of species, by overlaying State land-management responsibilities with internationally- and nationally-driven policy imperatives.

In response, the states have pushed back against what they see as creeping federal control, and continue to do so.

Another problem is that although Samuel’s proposed national standards are, on their face, for federally-protected matters only, if the states were to sign up to them to secure federal accreditation, it would be hard for them to apply lower standards to the rest of the environment.

To adapt Alfred Deakin’s famous 1902 prophecy about Commonwealth dominance in fiscal matters, the states could find themselves, ‘legally free but environmentally bound to the chariot wheels of the central government’.

Hardly a recipe for success, is it?

Yet I think Samuel’s policy prescriptions are the right ones. The threats posed by environmental degradation operate at landscape, if not global, scale and are, ultimately, existential, as is becoming increasingly obvious as more and more ordinary Australians feel the impacts of extraordinary natural disasters.

And the solution is …

We simply have to find a way to unravel this impossibly-intricate Gordian knot of a problem. These problems are wicked enough without adding inconsistent and even conflicting regulation to the mix.

Tradition has it that Alexander the Great solved the problem by drawing his sword and cutting the knot. Might Tanya Plibersek turn out to be a modern Alexander?

Stay tuned for my own Alexander-like solution in a forthcoming blog.

* Independent Review of the Environment Protection and Biodiversity Conservation (EPBC) Act, 2020.

Banner image: So much complexity, so much variation in the manner in which the federal government and state governments regulate the environment. What would it take to wipe the slate clean and start afresh? (Image by David Salt)