All’s fair in love and law?

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

By Peter Burnett

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

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

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

There’s a lot at stake.

More than coloured tape

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

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

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

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

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

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

It’s complicated

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

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

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

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

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

‘Lawfare’ and the right to challenge

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

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

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

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

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

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

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

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

You can see what a tricky issue this is.

Political framings

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

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

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

Image by Gerhard Lipold from Pixabay

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

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

By Peter Burnett

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

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

On free lunches

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

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

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

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

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

The facts of life

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

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

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

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

Same old, same old

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

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

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

Same old arguments, same old replies.

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

An inter-connected whole

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

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

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

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

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

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

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

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

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

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

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

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

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

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

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

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

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

Image by FreePhotosART from Pixabay

Saving the environment via human rights

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Is it possible? Is it likely? Appealing a coal mine using the HR Act

By Peter Burnett

A group of young people in Queensland are challenging the approval of Clive Palmer’s giant Waratah coal mine. The challenge is based on human rights – a legal first in Australia – and it just might rewrite the law books.

The Waratah mine, which is near Adani’s Carmichael mine but a separate project, is huge. If my back of the envelope calculations are correct, coal from the Waratah mine represents about 3% of the world’s remaining carbon budget if warming is to be limited to 2 degrees.

Challenging the mine’s approval on the basis of human rights is a novel approach. It’s based on Queensland’s new Human Rights Act (‘HR Act’), passed in 2019. Only the ACT has a comparable Act, though Victoria has a Charter of Rights and there’s a federal Human Rights Commission.

Where does a human rights approach take us?

The HR Act protects a series of rights, including the right to life, right to own property and right of children to protection. It makes no mention of the environment. Rather, the argument will be that the mine breaches human rights by contributing to climate change, which in turn will impair these rights.

The HR Act directs Queensland decision-makers, including those responsible for environmental approvals, to consider human rights and makes it unlawful for them to take decisions that are not compatible with human rights.

No doubt the case against the Waratah mine will involve arguments about the meaning of rights such as the right to life. However, that’s not the interesting part from our environmental perspective.

To prove that the mine would breach their human rights, the applicants will have to establish that it would contribute significantly to climate change. This will involve showing that emissions resulting from the mine would make a significant contribution to global emissions.

So, despite the novel human rights basis for the challenge, we find ourselves back on the familiar but troublesome environmental terrain, traversed in earlier challenges based on environmental laws, of demonstrating the contribution of individual developments to climate change.

The substitution argument

The mine is probably big enough to rate as a significant potential contributor to emissions. The problem is causation: if the coal is mined and exported, will this actually increase emissions by the amount of carbon in the coal? Is there additionality of impact?

Additionality is not a simple physical cause and effect issue. Before it is burnt, the coal is sold into a market, in which human actors take independent and unpredictable transactional decisions.

This then raises the ‘substitution argument’, an economic argument that the coal from this mine may substitute for another energy source, such as lower quality coal, in which case the Waratah coal might even reduce emissions if the low quality coal is thereby pushed out of the market and left in the ground.

But there are variations and elaborations on the substitution argument. In one case the federal environment minister, considering whether to approve the Adani coal mine in 2016, argued in effect that it was not possible to tell who would buy the coal, what it would replace, or how other suppliers might respond, which meant that it was not possible to tell whether there would be any additional impact.

The minister instead declared himself satisfied that emissions associated with the project would be managed through the Paris Agreement. The Federal Court accepted this as a legally valid approach.

In the more-recent Rocky Hill case, Chief Judge Preston of the NSW Land and Environment Court rejected another version of the argument, which amounted to ‘if we don’t mine this coal, someone else will supply something worse’. Justice Preston rejected this ‘lesser of two evils’ framing in favour of what amounted to a presumption of additionality, which could only be displaced by evidence of substitution.

Will the courts reject the substitution argument?

On the face of it, this latest challenge might lead to an appeal court ruling, possibly from the High Court, on the substitution argument. If favourable to the young appellants, this might lead to an outcome where, subject to the specifics of the laws concerned, environmental assessments must consider downstream (Scope 3) carbon emissions on the basis that their potential emissions were their actual emissions.

However, the courts will not necessarily accept or reject the substitution argument. When reviewing the use of such arguments by decision makers, most courts, and certainly appeal courts, are not deciding which substitution argument is the best approach to analysing downstream impacts, but whether the approach chosen is legitimate.

The problem is that most versions of the substitution argument have some legitimacy – they just vary in their assumptions or predictions about whether and how markets might respond to the sale of the coal.

The underlying problem

The challenge brought by this group of young people is innovative and bold, but I think the new path they have taken will lead eventually to the same swamp of substitution that has caused problems before.

The underlying problem is that we don’t have a comprehensive climate policy including a carbon budget. If we did, the question might be whether we should allocate a significant share of our budget to a coal mine (and, if the system allocates Scope 3 budgets to importing countries: do they want to allocate their carbon budget to importing more coal)?

At the end of the day, this challenge is another attempt to force our bottom-up project approval system to address what is really a top-down issue: what is our carbon budget and how should we allocate it?

You never know, this challenge just might rewrite the law books, and you can certainly understand why people keep trying, against the odds.

But it would be so much simpler if we just adopted a comprehensive climate policy.

Image by Steve Buissinne from Pixabay

Is a positive environmental narrative possible?

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Maybe we should be turning to hope rather than fear

By Peter Burnett

One of the challenges of working in the environmental field is that both the news and the prospects are almost relentlessly negative. Bad things have happened and there’s much worse to come.

The public don’t like it either. There is research suggesting that trying to promote policy and behavioural change through fear, by warning people of likely environmental disaster, does not work and can even be counterproductive.

This made me wonder whether our environmental situation can be compared to Elizabeth Kubler-Ross’ stages of grief, experienced by people diagnosed with a terminal illness. The first two stages are denial and anger, words which seem to describe climate change denialism quite well.

If this is right, the obvious solution for those trying to build public support for stronger environment policy is to identify positive narratives that are based on hope rather than fear. I thought I’d look at some positive narratives to see whether they might provide support for better policy in Australia. I’m hoping this is more than just wishful thinking.

Imports down, national security up

The first narrative concerns import substitution. Although we produce a reasonable amount of oil, we export three quarters of it and import more than 80% of what we consume. This is because ‘oils aint oils’; different grades of oil are used for different purposes.

If we could replace imported oil with renewable energy, mostly by switching to electric vehicles, there’d be a double benefit, not including environmental gains.

Replacing an imported energy with renewable energy from local sources would improve our balance of payments, which is good for the economy. We could spend our import dollar on other things.

It would also benefit our national security by reducing our dependence on other countries, and thus our foreign policy concern with the Middle East, long an area of instability.

In particular, it would largely remove the need for us to hold a three month supply of oil in reserve, just in case international supply chains were disrupted. This is a policy that members of the International Energy Agency adopted in the 1970s after the first global oil crisis, brought on by OPEC countries imposing an oil embargo in response to the Yom Kippur war.

Australia has not been complying with this obligation in recent years and is taking advantage of the COVID-19 crisis to play catchup by buying cheap oil and storing it in America until we can build enough storage here.

Post-carbon superpower

The second narrative is based on reshaping the domestic economy. In his 2019 book Superpower, Ross Garnaut argued that Australia’s wealth of renewable resources offered it an unparalleled opportunity to become an energy superpower in a decarbonising world.

His most powerful argument was that because green hydrogen (hydrogen produced from renewable energy) was best used at source rather than exported (because liquefying hydrogen for transport is energy-intensive and costly), we could shift from exporting mineral ores such as iron and aluminium, to refining those ores into metals domestically.

Recently, the Grattan Institute has buttressed this argument. In its report Start with Steel Grattan argues that, instead of exporting green hydrogen, we should use it to make ‘green steel’. Green steel is made by using hydrogen, rather than coal, to strip the oxygen out of iron ore, leaving water as the by-product rather than carbon dioxide. The metal is then refined into steel.

This is only the most prominent example. Australia’s wealth of mineral and renewable resources would allow us to move up the supply chain in a range of high tech, low carbon, industries, such as producing batteries for electric cars.

Yes we can!

I have called the third and most recent positive narrative to emerge ‘yes we can’, after President Obama’s 2008 campaign slogan.

Although the COVID-19 crisis has been both a health and economic disaster, it has produced some unexpected positives.

One is national cooperation, led by a new body, the national cabinet. Another is public cooperation, manifested through high levels of compliance with the draconian restrictions associated with lockdown.

While it is too early to tell, it seems that the political ground may have shifted because of the virus. Commentators are talking about proceeding with reforms that, until recently, were gridlocked politically, like tax reform, all in the interests of helping economic recovery.

Beyond reforms related directly to economic recovery, I detect at least some sentiment that if we can cope with corona we can cope with other things too, so let’s make the most of the opportunity and deal with other threats as well.

This is the most tenuous of the three narratives.

Where to from here?

All three narratives are real and, for added effect, they could all be developed at once, as they are complementary.

This does not mean any of them will gain traction. They are only part of the recipe.

The missing ingredient is political will, which will emerge only with political leadership (a ‘pull’ factor) or a groundswell of public opinion (a ‘push’ factor).

Moreover, it seems equally likely that negative environmental narratives could gain traction, for example that economic recovery requires ‘sacrifices’, including the by-passing of any environmental concern that would delay a development approval.

However, I think you can see just from the examples I have provided here, positive environmental narratives are not only possible, they are viable.

Maybe we should be asking ourselves what we need to do to make them real.

Image by Colin Behrens from Pixabay

Washing off the virus

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Will we throw the environmental baby out with the bathwater?

By Peter Burnett

In canvassing our recovery from the COVID-19 crisis, Prime Minister Scott Morrison has made bold statements about giving first priority to growing the economy through a business-led recovery. Finance Minister Mathias Cormann has deployed equally strong language about an ‘aggressive’ deregulation agenda.

The strength of such language must give anyone concerned about the environment pause for thought. There’s no doubt the economy will need some heavy duty kick-starting as we recover from the COVID-19 disaster.

However, might this crisis be used to justify a political narrative about environmental regulation being ‘green tape’? Could we, in the name of curing the current big crisis, end up accelerating the next big crisis, brought on by environmental decline?

Wrapped in green tape

Federal Environment Minister Sussan Ley already has a predilection for the green tape narrative. Announcing the current review of the Australia’s national environmental law, the Environment Protection and Biodiversity Conservation Act (EPBC Act) last October, she cast the review as an opportunity to cut ‘green tape’ and increase certainty for business.

The environment itself was only mentioned in the context of ‘maintaining high environmental standards’. Ley expressed no concern about the ongoing decline of the environment itself. And this was well before the COVID-19 crisis.

It is fair enough for the Government to look for increased efficiency, including in regulatory processes, as part of a plan for environmental recovery.

In federal environmental regulation, my first suggestion for efficiency would have been to fund the regulatory process properly. Successive governments have reduced efficiency by whittling departmental resources away through inflated ‘efficiency dividends’, code for general cuts. As a result, delays have gotten longer and longer, but of course they could have been reduced again by restoring the money.

But it seems that the Government is already on top of this one.

In November 2019 (ie, still before the crisis), it announced a $25m ‘congestion busting’ initiative to reduce delays in federal environmental assessments, including by establishing a major projects team ‘to ensure assessments can be completed efficiently and thoroughly in accordance with the Act.’

Recently, Ley announced that this initiative was delivering what appears to be significant progress. As of December, only 19% of ‘key assessment decision points’ were being met. But by March 2020 this had improved dramatically, to 87%. What’s more, the Minister says that figure should reach 100% by June 2020, all without relaxing any environmental safeguards under the EPBC Act.

In other words, the problem of slow environmental approvals will be solved in a couple of months.

I must admit to scepticism about this claim. I suspect that the assessments are much more superficial than they once were, more reliant now on accepting information provided by proponents and state regulators.

I also suspect that the introduction of user-charging for federal environmental assessments a few years ago, together with limited resources for compliance, mean that there are fewer projects under assessment. This is because proponents abandon a bias towards referring projects on a ‘just-in-case’ basis, in favour of a risk management approach, under which proponents weigh the costs of referral against knowledge that compliance action for failure to refer is unlikely.

However, let’s take the Government’s claims at face value for the moment and accept that regulatory delays, at least at the federal end, are on the way out. What else could they do to speed up environmental approvals?

More juice in the efficiency lemon

Even if individual statutory timelines are met, overall timelines can still be reduced, first by removing duplication between federal and state processes and also by removing delay at the proponent’s end. This latter kind doesn’t count as regulatory delay but is, of course, still delay.

Duplication is a complex issue and reform is a medium term task. But short-term gains could be achieved administratively, by forming federal-state task forces, ie by putting regulatory staff from both levels of government into a single team, tasked with shepherding the project through all processes as quickly as possible.

In the past I would have said the politics wouldn’t allow this, but I would also have said that a thing called ‘National Cabinet’ would never work. These are extraordinary times.

Proponents could also contribute to a task force model. I wouldn’t recommend direct secondment of proponent staff to task forces, as this is mixing the foxes in with the hens, but by increasing resources for their own project teams proponents could improve quality and responsiveness, both of which are essential to timely environmental assessment.

Avoiding the temptations of short-termism

So there are some gains to be had. Yet the temptation in a crisis is to grab onto anything and everything that might conceivably help deal with the problem at hand, taking a ‘tomorrow-can-look-after-itself’ attitude to any longer term consequences. And this is no ordinary crisis.

Beyond the marginal gains of efficiency, trading parts of the environment itself for a short term economic hit could look very tempting.

The OECD is alive to this issue and has come out with all guns blazing. In a recent statement, OECD Secretary General Angel Gurría argues, not just against weakening environmental standards, but in favour of stronger standards. In his view, governments should seize ‘a unique chance for a green and inclusive recovery … a recovery that not only provides income and jobs, but also has broader well-being goals at its core, integrates strong climate and biodiversity action, and builds resilience.’

In other words, kill two birds with one stone. Use your spending on post-virus economic recovery to advance longer term environmental recovery. Gurría has a three point plan for this:

First, align short-term emergency responses to long-term economic, social and environmental objectives and international obligations (ie, leverage your investment).

Second, prevent lock-in, not only of high-emissions activities, but also of impacts on vulnerable groups, who have been the worst affected by COVID-19. A key way to do this is through a fair transition to a low-carbon economy.

Third, policy integration. Integrate environmental and equity considerations into the economic recovery. This means that infrastructure investment, as well as government support to virus-affected sectors, should pass the test of contributing to a low carbon economy.

Don’t throw the baby out with the bathwater

The OECD is often described as a club for rich nations. And rich nations, including Australia, could be expected to take a conservative view about maintaining wealth.

Yet this advice sounds rather left of centre. In fact, in an Australian context, it is redolent of the mostly unlamented Rudd/Gillard/Rudd Government, which aligned its short term emergency responses to long term environmental objectives (think Pink Batts, 2008) and also pursued a fair transition to a low-carbon economy by compensating low income earners for the impact of the carbon price (think Clean Energy Future, 2011).

In my view the OECD is right but, in Australia, its advice may be cruelled by our recent political history. If the Government were to take the OECD’s environmentally-responsible but mildly collectivist advice it would be accused of taking the Rudd/Gillard path to disaster.

On the other hand, if the Australian Government follows through on its current rhetoric of a growth-led recovery and aggressive deregulation, we may be headed for solutions that throw the baby out with the bathwater.

Which will it be?

Image by Pezibear from Pixabay

Who’s the BOS?

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The NSW Biodiversity Offset Scheme (BOS) will now apply to federal development approvals in NSW

By Peter Burnett

Federal environment minister Sussan Ley has announced new arrangements with NSW covering the application of biodiversity offsets under federal environmental impact assessment (EIA) laws. Under these arrangements the NSW Biodiversity Offsets Scheme (BOS) will cover both federal and state requirements and the federal policy on offsets will no longer apply.

Sounds complicated and technical, should we care? Absolutely we should. EIA is the cornerstone of our approach to environmental protection in Australia; offsetting has gone from being rare to common over the last 20 years; and the manner in which state and federal governments coordinate their approach to assessing development is key to effective environmental regulation. Everyone with an interest in protecting the environment should care about this new proposal.

Is this an improvement? Do the feds just want to get out of EIA? With offsets becoming the de facto bottom line in EIA, who’s the BOS now?

It is complicated

EIA is complicated, but doubly so under Australia’s federal system, where federal and state governments have overlapping EIA laws. Governments have been trying for decades to reach agreement on reducing the resulting duplication, but with limited success.

When the Environment Protection and Biodiversity Conservation Act (EPBC Act) was passed in 1999, one of its big selling points was that it would put an end to EIA duplication through a mechanism known as bilateral agreements, or ‘bilaterals’ for short.

There are two kinds of bilateral. An ‘assessment bilateral’ accredits a state to undertake a single EIA process to inform two approval decisions, one by the Federal environment minister and one by the state.

The more powerful ‘approvals bilateral’ accredits a state to assess and approve developments, without any federal involvement, on the basis that the state system has been accredited as meeting all federal environmental standards under the EPBC Act. The feds tried to go there twice, once under Julia Gillard and once under Tony Abbott, but these ‘one stop shop’ initiatives failed both times.

So we are only talking about assessment bilaterals here.

One of the problems with assessment bilaterals is that they combine two assessments into one but leave two separate approval decisions to be made, applying two sets of policy, including on offsets.

So this latest decision, under which the Commonwealth will apply the NSW BOS instead of its own offsets policy looks like it should streamline decision-making.

And that’s how Minister Ley and her NSW counterparts are selling it, of course. But what about substantive standards on environmental offsets? Does the BOS deliver environmental outcomes as good as, or better than, the federal offsets policy?

How do the two offsets policies compare?

The NSW BOS has some real strengths, especially that it is a statutory scheme administered by a government-controlled trust. This enhances governance by providing consistency, continuity and transparency. It leaves the non-statutory federal policy, which lacks even the basic transparency of a public offsets register, in the shade.

Nevertheless, some environment groups opposed federal endorsement of the BOS. A key concern was that the BOS is aimed at biodiversity generally, rather than at the threatened species and communities protected under the EPBC Act. As a result, it does not have a requirement that offsets address impacts on a ‘like-for-like’ basis, for example to offset an impact on the Eastern Quoll with something that benefits the Eastern Quoll.

NSW addressed this concern by amending its Biodiversity Regulation to impose a like-for-like requirement, but only for impacts on matters protected by the EPBC Act.

Another key concern raised by environment groups is that the BOS typically delivers smaller offsets than the federal policy, especially for species or ecological communities that have a higher threat status (eg, a species listed as critically endangered). The main reason for this difference is that the federal policy, unlike the NSW BOS, uses a discount factor, related to the likelihood of extinction. This discount factor increases the offset quantum as the threat status increases.

Presumably NSW objected to introducing a similar discount factor for federally protected species and communities. So the Commonwealth accepted the NSW position, justifying this with the argument the level of threat ‘would still be considered’ by the Commonwealth ‘as part of the broader regulatory process’.

Despite these soothing words, I think it’s unlikely that the Commonwealth will impose an additional offset in such cases, which arise regularly, because this would undermine the (streamlining) purpose of endorsing the NSW policy in the first place. At best, this caveat provides an escape clause to be invoked in egregious or highly controversial cases.

Different policies in different states?

One effect of Commonwealth endorsing a NSW-specific offsets policy is that this is likely to lead to different outcomes in different states. This is clearly undesirable from an environmental point of view, as ecosystems and bioregions straddle borders. I imagine Minister Ley might agree in principle but defend the difference in outcomes on pragmatic grounds.

The application of different policies also made my lawyer’s antennae twitch. Not only does the the Constitution prohibit the Commonwealth discriminating between states in certain cases, but the EPBC Act itself contains sections that translate these constitutional prohibitions into specific bans.

For example, sections 55 and 56 of the EPBC Act prohibit the environment minister from discriminating between states and parts of states through bilateral agreements in certain circumstances. However, it turns out that neither the Constitutional prohibitions nor the sections of the EPBC Act apply in this specific case, for reasons too complicated to explain here.

So, as undesirable as it might be to have two different policies on the same thing, there is no law against it in this case.

Streamlining or watering down?

In the short term, whether this is a good initiative, a streamlining or a watering down in the interests of putting the states in the driving seat, is a mixed question.

Clearly it will reduce the regulatory impact of overlapping the EIA schemes. And the NSW BOS does have some significant strengths, which the Commonwealth would do well to imitate when it responds to the current review of the EPBC Act.

But it is a worry that the Commonwealth has adopted a policy specifying what is an acceptable biodiversity offset, but then decided that a lower offset is acceptable if the impact occurs in NSW.

In the longer term, however, the more important policy question is not whether an offset is acceptable under a policy, but whether it is sufficient.

This highlights a fundamental weakness of the EPBC Act itself, which is that the Act doesn’t specify any objective standard of environmental sustainability, but leaves it to the environment minister to decide what is ‘acceptable’. Something that is clearly acceptable to a minister may nevertheless fall far short of sufficient.

Hopefully the current review of the EPBC Act led by Professor Graeme Samuel will recommend an approach that sets clear benchmarks for what is sufficient to maintain biodiversity and ecological integrity, and then requires that those benchmarks be met.

Image by Terri Sharp from Pixabay

A pathway for the Coalition to improve its climate change act

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Reviewing the 2020 Climate Policy Toolkit

by Peter Burnett

The Climate Change Authority (CCA) has released its latest advice to the Australian Government on how to respond to climate change. It’s contained in a report titled: Prospering in a low-emissions world: An updated climate policy toolkit for Australia.

For a body with three seats out of seven occupied by former Coalition politicians, it’s a bit of a surprise as it favours strong climate action.

Who or What is the CCA?

The CCA was set up by the Gillard Labour government in 2011. The Climate Change Authority Act was one of 18 bills forming the Clean Energy Future package, the centrepiece of which was a carbon price (also known as the ‘carbon tax’). The carbon tax didn’t survive of course, but thanks to Al Gore’s powers of persuasion with Clive Palmer, the CCA Act did. The CCA’s role includes research, and this latest report is released as a ‘research report’.

The CCA has seven members. The chair, Dr Wendy Craig, has headed a number of statutory authorities, including the Great Barrier Reef Marine Park Authority (GBRMPA) and the Murray Darling Basin Authority. While not political, she is trusted by the Government, as seen in her conducting the recent review of the impact of the EPBC Act on agriculture, a review loaded with political sensitivities.

Also a member of the CCA is another former head of GBRMPA, Dr Russell Reichelt.

Most significantly, three members of the Authority are former conservative politicians. Kate Carnell is a former Liberal ACT Chief Minister; John Sharp is a former National Party transport minister and Mark Lewis is a former Liberal agriculture minister in WA.

Finally, Stuart Allinson has an industry background, while the Chief Scientist, Dr Alan Finkel, is a member ex officio.

A updated Climate Policy Toolkit

The CCA produced its original Policy Toolkit report in 2015, at the request of government. This update appears to be unsolicited.

The report presents 35 recommendations about transitioning Australia to a low emissions future. But it does so ‘building on the Government’s current climate change policy settings’.

The Government rejected the CCA’s earlier advice in the lead-up to the Paris Conference in 2015 that it should aim to reduce emissions (on a 2000 baseline) by 40-60% by 2030. It is not surprising then that this report takes the Government’s 26-28% by 2030 emissions-reduction target as a given.

Because governments don’t like taking the tough decisions needed to fix the environment, advisers often stress economic opportunity when serving up unpalatable recommendations. This report is no exception, with Dr Craik declaring in her media release that ‘we need to position our economy for the coming changes in global trade and investment markets and seize on the opportunities before us, or risk being left behind.’

The updated advice

Despite this, there is some good advice in the recommendations. I’ve listed what I think are the highlights below (with my ‘translation’ of what I think they mean):

Develop a long-term climate change strategy that secures Australia’s contribution to the achievement of the temperature goals of the Paris Agreement.
Translation: we should do our bit to stop temperatures rising, not just to meet (inadequate) national targets.

Governments should work together to support industries and communities facing an uncertain future to identify pathways for industries to evolve and remain competitive and to exploit new economic opportunities.
Translation: we don’t really like the Left-oriented phrase, the ‘just transition’, but we agree with the idea of managing the transition to a low carbon economy so that sections of the community are not disadvantaged.

Australia should aim to meet its 2030 Paris Agreement target using emissions reductions achieved between 2021 and 2030.
Translation: don’t claim Kyoto carryover credits.

Develop an international climate strategy to support a strong global response to climate change that minimises physical impacts on Australia and increases international demand for Australia’s emerging low-emissions export industries.
Translation: push other countries to up the ante as it’s in our national interest.

Review and update the 2015 National Climate Resilience and Adaptation Strategy.
Translation: we need to do more in preparing to deal with the impacts of climate change.

In the electricity sector, advance electricity system security; fast-track reforms for integrating large amounts of low- and zero-emissions generation into the electricity market; align bilateral Commonwealth-State energy agreements with AEMOs Integrated System Plan; and increase certainty on the timing of the retirement of ageing coal generators to facilitate timely investment in replacement capacity and storage.
Translation: hurry up and fix energy policy.

Enhance the Safeguard Mechanism to deliver emission reductions from large emitters in industry, with declining baselines with clear trajectories and the ability to trade under- and over- achievement once baselines have commenced declining.
Translation: emissions trading, thou name shall not be spoken, though thy spirit be honoured.

For vehicles with internal combustion engines, reconsider implementing a greenhouse gas emissions standard for light vehicles and undertake a cost-benefit analysis of an emissions standard for heavy vehicles.
Translation: traditional transport can’t be left out of climate policy.

For electric vehicles, minimise barriers to electric vehicle uptake, including by: ensuring adequate infrastructure coverage on highways and in regional areas; considering implications for electricity network tariff reform and fuel excise revenue, and setting targets for electric vehicle adoption in government fleets.
Translation: Time to get serious about electric vehicles, including the tricky topic of new taxes to replace lost fuel excise.

Land use and agriculture activities should continue to be covered by the Emissions Reduction Fund, with credits continuing to be used as offsets for facilities covered by the Safeguard Mechanism.
Translation: Keep buying credits from agriculture until the Safeguard Mechanism above forces industry to buy them instead.

Introduce a Land and Environment Investment Fund (that is, a Clean Energy Finance Corporation (CEFC) for the land), to invest in low-emissions and climate-smart agriculture. Investigate and implement the most effective incentives to encourage the use of emissions-reducing inputs in agriculture.
Translation: Self-explanatory on the Fund. Farmers should be hit with carrots rather than sticks.

Recognise the benefits of a circular economy approach for emissions reductions, ensure the National Waste Policy Action Plan considers industry development, the waste hierarchy, research and development, training and barriers to adoption; and emphasises the creation of industries in regions undergoing transition.
Translation: governments need to drive us much further down the path of reuse and recycling.

Reinvigorate the National Energy Productivity Plan with enhanced ambition and additional resources, including by implementing a National Energy Savings Scheme that builds on existing state and territory energy efficiency schemes; strengthen and extend energy performance standards for appliances and commercial equipment (eg hot water products and pumps, boilers and air compressors); accelerate energy efficiency improvements for buildings.
Translation: energy efficiency has always offered cheap and low-pain options, so get on with it.

Continue to fund the Australian Renewable Energy Agency (ARENA) and consider expanding its remit into other sectors requiring R&D for low-emissions technology or practice. Expand the remit of the Clean Energy Finance Corporation (CEFC) to allow it to invest in emissions reduction technologies in all sectors to help overcome barriers to finance. Restrictions on the scope of the CEFC’s activities, its portfolio mix and the financial instruments it can use should be lifted. The Government should consider making further capital injections in the CEFC to fund this expansion.
Translation: the investment mechanisms that the Abbott government wanted to get rid of have proven very successful and should be expanded.

Together with the major accounting bodies, examine the phasing-in and mandatory reporting of climate-related risks and mainstream climate-related disclosures in companies’ audited financial statements. Assist the finance and investment sector to develop standards and verification processes for green finance products and services.
Translation: the impacts of climate change on business are here. This means getting companies into mandatory reporting but also capitalising as companies are driven by risks and stakeholders to mitigate their climate impacts.

Not a bad package overall

All in all, this is not a bad package, containing some carefully couched hints from a body that includes the Government’s own colleagues, to up the ante on climate, even on ‘no go’ areas like the 2030 targets.

Image: Part of Figure 5 from the report Prospering in a low-emissions world: An updated climate policy toolkit for Australia

‘Practical Environmental Restoration’

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The new Government mantra (and more grist from the Estimates’ mill)

By Peter Burnett

The Senate held another round of its regular environmental estimates hearings and, once again, I thought I’d share with you what emerged. As I’ve said in the past, these hearings often contain valuable evidence on Government thinking and action.

The topics covered this time were mostly grist for the mill, but one item really stood out: the Government has become focused on something called ‘practical environmental restoration’? Heard of it? Neither had I.

Practical environmental restoration

The government has a bit of a thing about taking ‘practical’ action when it comes to the environment. This theme emerged as a way of contrasting the Coalition Government’s main climate initiative, the Emissions Reduction Fund, with the complexities of the previous Gillard Government’s carbon price (which Tony Abbott had labelled, confusingly but very successfully, as a tax).

And then there was the Government’s obsessive focus on the second-order environmental issue of plastic pollution while ignoring the first-order issue of climate change because this government is all about practical solutions.

In the last budget, brought down in the lead up to the 2019 election, the Government developed this ‘practical action’ theme further, introducing two new programs, an Environmental Restoration Fund ($100 million over four years) and a Communities Environment Program ($22.6 million in one year only).

Smells like a pork barrel

On the face of it, the Environmental Restoration Fund seems respectable. However, look a little closer one and it takes on the appearance of a pork barrel. With the fund established and an election called, the Government proceeded to make election commitments covering nearly 80% of the fund. According to a non-government Senator, some of the groups nominated as recipients knew nothing about the grants coming their way until contacted by someone from a Coalition Party.

With the government re-elected, these election commitments prevented the Environment Department from giving the standard advice about holding competitive grant rounds. It had no choice but to advise the Government to hold what officials described as a ‘closed, non-competitive’, funding round. This meant that the grant guidelines actually specified the recipients as the groups nominated in the Governments election commitments.

None of this is illegal, because various policy guidelines allow for standard procedures like competitive grant rounds to be overridden by election commitments. The theory is that the Government has a mandate to implement his commitments.

So it’s not a second ‘Sports-Rorts’ affair, with attendant allegations of illegality.

It is, however, a blatant case of pork barrelling, likely to lead to poor policy outcomes because the politicians have specified the grant amount, purpose and recipient without any public service or other expert advice.

With the environment in continual decline and a desperate need for restoration, this is another example of very poor governance.

School yard stuff

And the response of Minister Birmingham, the minister representing the Government at Estimates, to Opposition criticisms of the program? ‘I don’t have to sit here and accept hypocrisy from you. You made similar promises at the election.’

In other words, you are just as bad as us, so we can get away with this. At a time when trust in government is very low and the environment in significant decline, this is school yard stuff and a very sad state of affairs.

The Communities Environment Program is not much better. The fact that the program is limited to one year, immediately following at election, is unusual and strongly suggestive of the program being another pork barrel. The fact that the money is allocated to all MPs ($150,000 per electorate) allowing non-government MPs to access to the pork, is hardly a saving grace.

Again, this is bad policy. Small numbers of piecemeal local grants in a one-off program make no contribution to the big environmental issues that face the national government.

So what does ‘practical environmental restoration’ mean? Pork barrelling, obviously.

Grist for the mill

To finish, some quick ‘grist for the mill’ themes from Estimates:

  • There was the usual manoeuvering in which the Greens asked the Bureau of Meteorology questions designed to elicit strong statements about the severity of climate change, while One Nation asked questions directed to showing that the Bureau was cooking the books.
  • The Opposition was in pursuit of Warren Entsch, the Government’s backbench Reef Envoy: why was he so focused on single use plastics in the marine environment when it is such a small component of marine waste?
  • There were the expected questions concerning the impact of bushfires on threatened species. In short, the Government has convened an expert panel and the Threatened Species Committee is reviewing conservational advice and recovery plans, but it really is too early to have much data from bushfire-affected areas.
  • Opposition and Green senators are still pursuing Minister Angus Taylor’s alleged intervention in a compliance investigation concerning his brother’s farm in southern New South Wales. Officials advised, yet again, that this long-running investigation remains incomplete.
  • Senator Matt Canavan, formerly Resources Minister and now on the back bench, asked about climate change as an issue in environmental assessments under the EPBC Act. He is clearly concerned that an environmental assessment for a large oil and gas project off the coast of WA, requires the proponent to assess the impact (if any) of greenhouse gases (including scope 3 emissions) on features such as the Great Barrier Reef, which lie on the other side of the country.
  • While on the topic of environmental assessments, officials revealed that the Environment Department had received some funding for extra environmental assessment staff under the government ‘congestion-busting’ initiative. This reverses the trend over the last few years of regular staffing reductions in this area. It’s ironic that governments cause the problem through general cuts (the so-called ‘efficiency dividend’, then ‘fix’ the resulting ‘congestion’!
  • Senators pressed the government on it’s electric vehicle strategy, due out in mid 2020, particularly given pre-election comments by the Prime Minister and other ministers about electric vehicles putting an end to the weekend. Perhaps rehearsing the lines that will be used to explain these pre-election comments away when the Government starts to promote electric vehicles in its forthcoming ‘Technology Roadmap’. Minister Birmingham made it clear that the electric vehicle market was ‘obviously one that is adapting in terms of the technical specifications’ and that ‘the electric vehicle strategy will no doubt take into account how those technical specifications are evolving.’

Image: Image by Clker-Free-Vector-Images from Pixabay

Insensible on coal

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Why climate change policy is such a challenge for Australian politics

By Peter Burnett

As I write this, our national Treasurer Josh Frydenberg is mocking his Opposition counterpart as some sort of guru-seeking hippy for daring to suggest that Australia might adopt New Zealand’s idea of a ‘well-being budget’.

This is just the latest example of our very low level of Australian policy debate: the ‘well-being budget’ is a serious attempt to address the well-known limitations of GDP (basically national income) as a measure of ‘progress’. It is particularly relevant to environmental issues and deserves a considered debate. Perhaps I’ll write about it in another blog.

It’s easy to despair over the shallow debate involving the environment, particularly when the state of our environment has started biting us in ways that are, to deploy once again this summer’s most overused word, unprecedented.

Is political agreement on a rational and proportionate environmental policy even possible? I thought I would look at this question by focusing on the troublesome issue of coal and climate change.

A tough challenge even in an ideal policy world

Our quality of life has been built on fossil fuels. In Australia, one fossil fuel in particular, coal, has supported our lifestyle not only by providing most of the energy needed for electricity production, but also by serving as a ‘top three’ export-earner.

So, phasing out coal presents a double policy challenge.

It is common to reflect on the fact that climate change requires concerted global action. Yet it is uncommon to reflect on the system behind the international approach to orchestrating such action.

The underlying problem is one of too many people consuming too much stuff, most of which generates greenhouse gases, one way or another. This is a problem tailor-made for economics, a discipline often defined as the study of efficient allocation of scarce resources.

If we had asked economists rather than diplomats to come up with a solution, they would have told us that getting consumption down to sustainable levels is all a matter of ‘getting the prices right’ and that if ‘stuff’ produces too much greenhouse gas, the answer is to put up the price of ‘stuff’, in proportion to the amount of gas it generates.

In an ideal world, then, we would have ended up with a uniform global carbon tax, with the rate set at just the right level to disincentivise the production of excessive greenhouse gases. Problem solved.

The realpolitik of the Climate Change Convention

However, the real world is not built around economic theory. It’s based on nation states and their absolute sovereignty. International diplomacy is a parliament of equals, but with no overarching government to enforce the rules.

As a result, when countries agree on international action, they tend to do so by agreeing to regulate only what goes on inside their own borders, relying on other countries to implement their own corresponding regulation but usually without any means of making them do so.

With climate change, this system of each nation focusing on their own back yard leads to a system where by countries regulate domestic emissions not just from consumption, but also from production. Mixed models such as this tend to produce anomalies.

For example, resource-rich countries such as Australia are advantaged in comparison to manufacturing countries such as China. Emissions from manufactured goods such as tools and furniture will be counted mostly in the country in which they are produced, increasing export prices if carbon is priced, while emissions from natural resources such as coal are (mostly) accounted for in the country in which they are consumed, with little effect on export prices under a carbon price.

What’s more, if we did reduce coal exports by restricting new mines, any emission reductions would not count towards our international targets. This leaves us with an unbalanced incentive to promote coal mining, but only for export.

Just make the best of it?

Okay, so the model is less than ideal but it is not likely to change. So, despite its flaws, can we extract policy success (ie climate change mitigation) from the existing system?

If we stay focused on the outcomes rather than the inputs, as any good policy should, the answer is a qualified ‘yes’. Under this approach we’d be targeting greenhouse gas reductions and not coal specifically, even though coal is a major source of greenhouse gases.

In the case of coal we would still need to phase-out domestic use, although we could be technology agnostic and pursue emissions reduction generally rather than reduced coal consumption specifically. We would also want to reduce emissions reductions from coal mining, but again the measures could be industry-blind and not directed at mining specifically.

On the other hand, we would not target emissions reduction from coal exports, because these emissions would count towards the targets of our customers rather than ourselves. Nevertheless, because it is essential for the planet that we get out of coal on a global basis, we would need to work towards the adoption of increasingly ambitious targets and regimes internationally.

Success here would have the incidental effect of reducing demand for coal, including our own exports.

Is this feasible?

Even though we wouldn’t be targeting coal or exports, this approach would remain a hard sell domestically. Despite the double policy virtues of good prospects of climate mitigation success and compliance with the letter and spirit of international agreements, the politics would still be tough.

Domestic environment groups have managed to demonise not just the consumption of coal, but its production. They have done this for their own reasons, in part because domestic place-based campaigns are what they do best: the environment movement was built on them.

On the other hand, coal-producing regions would not be appeased just because we weren’t targeting coal directly. We’d still be taking action internationally that would harm the coal industry. Jobs would still be under threat and transition programs would still be needed.

So action on coal, or more accurately, action on emissions including those from coal, is politically feasible, but hardly attractive. The best policy path available barely dents the political risk and pain.

The conundrum with coal is the same as that posed by climate change more generally: would you like a moderate dose of pain now or a much bigger and tougher dose of pain delivered to your children? At this point in time it seems we are happy to pass the burden to our children.

Image: Then Treasurer (now PM) Scott Morrison holds up a chunk of coal in Parliament in 2017. “This is coal,” he said mockingly to the Opposition. “Don’t be scared. It won’t hurt you.”

A tale of two climate bills

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One is about meaningful reform, the other more about politics

By Peter Burnett

Last month, Zali Stegall released her long-anticipated climate change bill. This month, the Australian Greens released a climate bill of their own. They are quite different pieces of legislation. One is quite solid, I think, while the other is more about politics than meaningful outcomes.

Zali Stegall, of course, is the Independent MP for Warringah. She stood against Tony Abbott, one of Australia’s leading climate change deniers (and former PM), on a platform of introducing meaningful climate change policy; and she won. Her bill has been under development since her election in May 2019. Against the backdrop of Australia’s horror summer, and the resulting rocketing of the environment to the top of the political agenda, it could not have been better timed.

The Greens’ climate bill, on the other hand, looks to me like it might have been drafted in a hurry, for reasons I will explain below.

Given the contrasting approaches of the two bills and the possibility that a Parliamentary committee might end up looking at both, it’s instructive to consider what they contain.

The Stegall Bill

The full title of Stegall’s bill is Climate Change (National Framework for Adaptation and Mitigation) Bill 2020. As the title suggests, the bill establishes a framework for climate policy leaving it up to the government to develop climate mitigation programs that meet the targets set by the framework.

The bill would legislate a target of net zero emissions by 2050 and establish an independent Climate Change Commission, tasked with preparing a national National Climate Risk Assessment every five years. In response, the Government must prepare a national adaptation plan, together with five-year national emissions budgets and emissions reduction plans to meet those budgets.

Space doesn’t allow a more detailed examination, but you get the drift: the Bill sets the overarching target, while the independent Commission looks after the framework and keeps an eye on the Government. The Government’s job is to develop and implement detailed plans to meet the targets. If both parties do their job properly, national emissions follow a trajectory down to net zero 2050 while inflicting the least possible pain.

The Greens’ Bill

By contrast, the Greens’ bill has a much narrower focus. It’s full title is the Environment Protection and Biodiversity Conservation Amendment (Climate Trigger) Bill 2020, and it seeks to amend parts of the Environment Protection and Biodiversity Conservation Act 1999 (EPBC Act) to introduce a climate ‘trigger’ for ‘emissions-intensive actions’; specifically land clearing, drilling exploration and mining (with the capacity to add others later by regulation).

The EPBC Act has nine triggers, for example one for threatened species and one for large coal and gas projects affecting water resources. The basic idea is that if a trigger is, well, triggered, by a development proposal, the development can’t go ahead unless it has been the subject of an environmental impact assessment (EIA) and a decision by the environment minister as to whether the project can go ahead, and if so, on what conditions.

In short, the Greens’ bill extends existing environmental regulation to land clearing and mining projects in order to reduce their climate impacts.

Two bills compared

Stegall’s bill is impressive. Although she was able to draw heavily on overseas precedents, the bill is well drafted and specific to Australian law and circumstances. It is complete to every last detail, including administrative matters like pay-and-leave entitlements for the Commission’s CEO.

I know Stegall is a lawyer and probably had lots of free expert advice. Nevertheless, she’s a first term Independent MP, with no party colleagues or resources to draw on. Yet she has produced a bill that is just as good as one that might have been produced by the Government with the full resources of the public service.

The Greens bill on the other hand is disappointing. The Greens have been around for a long time and have a much greater depth of resources available to them. Yet the bill is narrow, doing little more than bringing two major categories of development into an existing regulatory net, one which leaves it almost entirely to the environment minister to decide what, if any, emissions-reducing conditions to impose.

Even within this narrow scope, the bill doesn’t seem to have been well thought through.

A mining or land clearing project will only trigger an EIA if its emissions would likely have a ‘significant impact’ on the environment. Under the EPBC act, the environment is defined in wide terms. And ‘significant impact’ is not defined. Greenhouse gas emissions do not have a direct impact on living things; they have an indirect impact in that they change the climate and it is the changed climate which has an adverse impact on the animals and plants.

Finally, the Act doesn’t regulate cumulative emissions, which means that a decision about whether a project triggers the Act only considers the project in isolation.

When you take these factors together, it means that the emissions from a single project, such as a proposed mine, may not be ‘significant’ under the act unless they are so great as to change the climate, by themselves, something that would only occur with an enormous project.

As a result, I think there is a good argument that the Greens’ climate trigger would never operate.

The politics and the process from here

It’s important to emphasise that Stegall’s bill has not been introduced in parliament. Rather, Ms Stegall has simply released it by public announcement. A key reason for doing this is that the government controls the numbers in the House of Representatives, where Ms Stegall is a member. It is very unlikely that the Government will ever allow her to introduce the bill formally, because this would cause the government to lose control of the climate change debate (more than it already has).

Significantly, the bill is supported by Rebecca Sharkey of the Centre Alliance Party, which also has members in the Senate. One scenario is that, once it becomes clear that the Government will not allow the Stegall bill to be introduced in the House of Representatives, Centre Alliance may introduce it in the Senate, which the Government does not control.

Once introduced, a bill can be referred to committee, which provides a good platform for public hearings and a committee report to keep public debate on the boil.

This may be where the Greens bill comes in. Rather than have a first-time Independent MP steal their thunder, perhaps the Greens foresaw this scenario and want to have their own bill that can be referred to committee as well. This way they would not be left dancing to someone else’s tune.

Outside Parliament, the temperatures will be dropping as we head towards winter. Inside, it’s likely that the Stegall bill will warm up the Winter Sittings one way or another, whether under my scenario or another. If that’s the case, let’s hope the deliberations produce some light as well as heat.

Image by enriquelopezgarre from Pixabay