All the way with EIA

There’s still value in persisting with Environmental Impact Assessment

By Peter Burnett

For more than a decade I’ve been working and researching in the field of Environmental Impact Assessment (EIA). I keep telling myself to move on, that my priorities lie in overarching environmental policy frameworks and that EIA is just one decision-support tool (admittedly one that is very popular), best adapted for dealing with local issues. But I can’t stay away from EIA. Is there new life for this old tool?

Why can’t I stay away from EIA?

It’s partly a ‘boys-and-their-toys’ thing. I’m a lawyer by training and EIA has developed from a simple idea of gathering all the relevant environmental information for decision-making into a complex nested set of processes that can take up hundreds of legislative pages. It’s even more complicated in Australia’s federal system, which has EIA at national and state levels. I admire the sophistication of the EIA process as it has evolved and enjoy nutting out how this complicated system applies to any particular development project.

It’s partly an ‘in-the-club’ thing. Having been responsible for administering EIA under Australia’s national environmental law, the Environment Protection and Biodiversity Conservation Act 1999 (EPBC Act) and having been accepted by peers as having some knowledge and expertise, I found myself reluctant to let this ‘club membership’ expire when I changed status from senior public servant to PhD candidate in 2013. So I found a way to make EIA one of my case studies in a thesis that was focused on high level policy relating to sustainability.

But the strongest reason was my belief in the potential of this tool. My instinct was that even though EIA didn’t seem to be achieving its original aspirations of leading to decisions that would protect the environment, not just in particular cases but across the board, it still had potential to play a major role in doing so.

But I wasn’t quite sure why it didn’t seem to work or how it might be improved, beyond the consensus view to make more use of strategic approaches to EIA. This would avoid the ‘salami slicing’ or ‘death of a thousand cuts’ involved in project-based EIA decisions such as the approval of individual mines or housing divisions.

Regulating discretion

One of my research findings concerned the way in which discretionary decision-making works in our legal system. EIA decisions need to be at least partly discretionary to allow decision-makers to tailor approval conditions to a multitude of cases and circumstances. Yet if that discretion is to be exercised consistently, it must also be constrained.

The problem here stems from the way the legal system has evolved to regulate discretion. First there are general principles of administrative law, which are directed to making sure that decision-makers takes fair decisions based on all the relevant information, at the same time preventing them from straying off the reservation by taking irrelevant factors into account or doing someone else’s bidding. These general rules are usually supplemented in EIA by statutory directions to consider specific environmental factors, such as the principles of Ecologically Sustainable Development (ESD).

But in either case the courts treat these as rules of due process. Short of the rare instances in which a substantive decision has no apparent rational basis (or in special cases such as the NSW Land and Environment Court) they won’t go into the merits of the decision. They regard merits as the province of governments or their appointed statutory expert decision-makers.

So they won’t tell a decision-maker what to decide. Fair enough. But Parliament can tell the decision-maker what to decide, although this is harder than it seems.

Take the EPBC Act. At first blush, it seems to be steering decision-makers towards a goal of ESD. But on closer examination the Act uses qualified language, saying it wants to ‘promote’ ESD. Then it takes a reductionist approach and breaks (an undefined) ESD into five ‘principles of ESD’ which the decision-maker must simply ‘consider’.

We’re back to due process. If he or she chooses, the decision-maker can pay lip service to these ‘considerations’ and then take any decision at all, short of irrationality.

Even if the Act used the clearest of language to define ESD and direct decision-makers to achieve that goal in all their decisions, this is probably not enforceable, because in such a broad context the courts would regard the question of whether any given decision achieved ESD (or other clearly defined policy goal) was one of merits or expertise, not law.

Can we fix it?

My research conclusion was that there were only two ways to ensure that individual EIA-based decisions deliver environmental policy goals in an enforceable way. Both involve translating the policy goal into limits of acceptable action at any given place and narrowing the scope for discretion, and the two approaches are related.

The first is environmental planning. In an ideal world of environmental plans, if you want to build a mine, the relevant plan will tell you whether this is possible on an unrestricted basis, or on conditions; for example that there were offsets available for certain vegetation losses.

The second, a combination of specific decision rules plus comprehensive environmental information (which often needs to be geospatial, thus bearing some resemblance to planning) will achieve a similar result. If you want to build a mine and there is a rule against clearing critical habitat, the answer depends in part on whether the mine site is listed as critical habitat. And a decision to approve a mine in an area of critical habitat would be challengeable in court, because this is not an instance of discretion but the breach of a rule.

There would still be a role for EIA and discretion under both these approaches, but its task would be more oriented to the detailed conditions under which the proposal should proceed. Of course, these approaches would be expensive and, in our federal system, particularly complex.

They also shift decision-making away from pluralism and trade-offs towards a more constrained application of rules. This is uncomfortable territory for politicians, but a necessary evil if we are to make EIA an instrument of our high-level policy goals.

Sticking with EIA

So I found a way to satisfy my urge to stay involved with EIA, by connecting it to policy and information. To highlight that connection, consider this poetic metaphor inspired by John Masefield’s poem, Sea Fever. We need to shift our attention from the ‘tall ship’ of EIA to the entire voyage of environmental decision-making, which requires both a clear sense of destination (policy) and fulsome environmental information, ‘a star to steer her by’.

EIA is an important tool but unless we have a clear sense of where we want it to take us and ensure the necessary information is available to guide its application, then this venerable tool will not be delivering the environmental outcomes it was established for.

Image by MonikaP from Pixabay

Twenty Years of the EPBC Act – looking back, looking forward

Reviewing our national environmental law as if it mattered

By Peter Burnett

It’s hard to believe but Australia’s national environmental law, the Environment Protection and Biodiversity Conservation Act 1999 (EPBC Act), is twenty years old. Given that it lies at the centre of so many important and controversial debates, how is this 20-year old piece of legislation tracking? In a time of climate change, extinction and growing uncertainty, is the EPBC Act still fit for purpose?

As is appropriate for such a critical piece of law, the EPBC Act gets a statutory review every 10 years. That means the EPBC Act is up for its second review later this year. Does it need a little tinkering or a major overhaul?

Because I had been responsible for the administration of the EPBC Act during the first review in 2009, I was asked recently* to share my reflections on how we should frame the review of the EPBC Act.

To my mind, this is a valuable opportunity for environmental policy reform and the thing we need to resist is the notion that it’s simply a matter of looking inside the Act to see how we can make it work better. The way forward lies on the outside of the Act, and I’d like to pose five big ‘outside’ questions.

But before I talk about these, I should tell you briefly what happened to the first review, led by Dr Allan Hawke, a former federal department head, and completed in 2009. Because what happened back then may help us make the most of this second review.

A potted history of the Hawke Review

The Hawke Review was comprehensive in approach and well-packaged in its recommendations.

Hawke was assisted by an expert panel and engaged extensively with stakeholders. He laid the ground well by packaging his recommendations in an integrated nine-point plan, which had something for everyone: new environmental protection for environmentalists; streamlining of regulation for business; stronger institutions for administrators; and a fresh name and look for maximum political effect.

Unfortunately these outcomes never materialised.

It was 2010 by the time government was able to act on the review and (as some will remember) there was significant political turmoil following a leadership ‘coup’ against Prime Minister Rudd, precipitated in part by a proposed mining tax. That culminated in the watering down of the tax, an election, a change of environment minister and a minority government. Of course, minority government in turn increased the ‘transaction costs’ of reform.

New environment minister Tony Burke announced a detailed government response to the Hawke Review in 2011, but in the ensuing period the minority government was giving high priority to pleasing business generally (and mining companies in particular). The Government thus focused its attention on a ‘one-stop-shop’ initiative to reduce regulatory duplication by using an existing mechanism in the EPBC Act, under which States could be accredited to approve development projects on the Federal Government’s behalf. 

As a result, progress on the EPBC reforms slowed to the point where, late in its term, the Gillard Government decided that there wasn’t enough time to get them through and deferred them to the next Parliament. But the next Parliament brought a change of government and the incoming Abbott Government returned to pursuing the ‘one stop shop’.

So, except for some administrative changes, including a policy on biodiversity offsets, the response to the Hawke Review was never implemented. Good policy reform foundered on the rocks of difficult politics.

Back to my questions for the forthcoming review.

The big ‘outside’ questions

1.‘What are we trying to achieve?’

A goal well defined is a goal half achieved. Neither the EPBC Act itself, nor the policy or explanatory documents that surrounded it, answer this question. The Act does include goals such as ecologically sustainable development, but expresses them in qualified language and leaves it open to decision-makers to simply pay lip service to them, so this fundamental question remains largely unanswered.

2. How do we allocate roles & responsibilities between federal and state governments?

Australia’s Constitution operates to share these roles and responsibilities between the two levels of government, but not in any clear or obvious way. However, there is considerable scope for the two levels to agree on a sensible division. In fact there are some agreements of this type, but they date back to the 1990s and were less than ideal even at the time. The EPBC Act is built in part on these agreements and so they need to be renegotiated before major legislative reform.

3. Given that roles are shared, how should the two levels of government cooperate, especially on areas in which overlap in unavoidable, such as environmental information?

Again, the 1990s agreements addressed this but implementation has been desultory. Governments should have tried harder.

4. How do we regulate discretion to ensure conformity with goals?

The freedom that decision-makers have under the current Act is too great: even if the goals of the Act were clear, there is no guarantee that discretionary decisions will implement them. Discretion is necessary in regulatory schemes, but my research suggests there are only two ways to ensure that such discretion is confined to implementing the goals of the Act. The first is to make environmental plans and require that decisions conform to the plans. The second is to have a series of specific decision rules (for example, not to approve development in listed critical habitat). Because characteristics such as critical habitat are usually geospatial, the two approaches are related.

5. How do we ensure that the Act is funded so that it is commensurate with its goals?

The EPBC Act has never been properly funded, going right back to the time when it’s principal architect, Environment Minister Robert Hill, was unable to secure additional funding for his new law. This is one reason why several major mechanisms under the existing Act, including provision for bioregional planning and grants for information-gathering, have been little used. In the absence of election commitments or an environmental crisis, in the current culture there is a high risk that Budget offset rules would strangle reforms.

The bottom line

I leave you with this thought. Unless the government elected later this month addresses the big ‘outside’ questions, the second statutory review of the EPBC Act can only deliver incremental change. That would be a wasted opportunity.

*The National Environmental Law Association (NELA) recently held a short conference to promote discussion of the upcoming review, under the theme of ‘Twenty Years of the EPBC Act – looking back, looking forward’. NELA asked me to reflect on the conference theme.

Image by Zesty from Pixabay

Environmental policy came from the side of the angels

Lynton Caldwell, NEPA and the birth of Environmental Impact Assessment

By Peter Burnett

When did the age of modern environmental policy begin? Some claim it kicked off with the publication of Our Common Future (also known as the Brundtland Report) in 1987. This landmark document defined the notion of ‘sustainable development’ and stressed the need for integrating economic, social and environmental approaches. Others suggest 1972 is more appropriate as it was the year of the Stockholm Conference and the establishment of Environment departments in many countries around the world.

But I’m going to suggest to you that 1969 and drafting of the US National Environmental Policy Act (NEPA) is really when environmental policy began, and it owes much to a visionary political scientist named Professor Lynton Caldwell. And it’s not just that Caldwell was astute enough to understand what effective environmental policy needed, he was also canny enough to know when to make his pitch.

NEPA is famous for introducing the world to the concept of environmental impact assessment (EIA), a mechanism now used in almost every country. But NEPA stands for so much more.

Interdisciplinarity

Its antecedents lie in Caldwell’s earlier work. In 1963 he published an article entitled ‘Environment: A New Focus for Public Policy?’ 1963! That’s only a year after Rachel Carson published Silent Spring, the book often regarded as having launched the modern environment movement.

In his article, Caldwell argues for, and thus invents, ‘environmental policy’. He calls for, among other things, an interdisciplinary approach to this new creature. Caldwell was a Professor of Government at Indiana University and he practised what he preached. He embarked on a course of interdisciplinary training and started hanging around with ecologists. (In 1963, ecology was still a relatively small discipline.) These days, interdisciplinarity is a much lauded goal (if little practiced) but back then it was a very brave undertaking.

In 1964 Caldwell began to operationalise his ideas by presenting them to a workshop for economic planners. Brave again. Not surprisingly, most of them were, as Caldwell later reminisced, ‘baffled’ by his argument and most of them rejected it as irrelevant. That’s except for one now world famous economist, Abraham Maslow (of ‘Maslow’s hierarchy of needs’ fame). Maslow understood what Caldwell was advocating. He later offered Caldwell constructive suggestions, declaring Caldwell to be ‘on the side of the angels’.

The time was ripe

By the late 1960s a wave of environmental concern was sweeping the Western World, particularly in America. Some major environmental disasters contributed to this. In 1969 and in America alone, the Santa Barbara oil spill despoiled the California coastline while on the other side of the country the Cuyahoga River was so polluted it actually caught fire.

Various members of Congress responded by proposing environmental laws. Public opinion was galvanised.

Against this backdrop, one of the leading proponents of reform in Congress, Senator Henry ‘Scoop’ Jackson, hired Caldwell to help with Jackson’s environmental Bill. Initially, Caldwell wrote a report for a Congressional committee on what a national environmental policy might be.

He later wrote that he anticipated the need for ‘action forcing provisions such as impact statements’ to support a national policy statement. But Caldwell held back as he suspected Senator Jackson ‘did not appear ready to endorse so novel and intrusive a proposition’.

Later, however, in appearing before the committee, Caldwell was able to make his arguments for his action forcing provisions and they were then included in the compromise bill. That bill became the NEPA. Caldwell had bided his time and ‘threw his pebble’ (to borrow a term from one of our earlier blogs) when he perceived it would have maximum impact.

A remarkable piece of legislation

NEPA itself is a remarkable piece of legislation. Its statement of environmental policy goals is visionary. It talks about the need for a global approach three years before the world first met to talk about a global approach, at the UN Conference on the Human Environment held at Stockholm in 1972.

The legislation talks about each generation being trustees of the environment for future generations and sharing life’s amenities – this was 18 years before the Brundtland Report proposed the concepts of sustainable development and intergenerational equity.

It refers to maintaining the diversity if life just 12 months after Dasmann first wrote of biological diversity and 20 years before Lovejoy coined the term ‘biodiversity’.

And NEPA required the preparation of state of the environment reports (as ‘environmental quality reports’), 10 years before the OECD produced one and called on its members to do likewise. NEPA sought to drive policy integration 10 years before the OECD began to promote the same concept.

Ahead of its time?

Unfortunately most of the enormous potential of NEPA was not realised. True, it brought environmental impact assessment, EIA, to the world. But Caldwell, Jackson and the others behind NEPA had a much bigger vision than EIA.

If NEPA had been applied as an ordinary reading of its words would suggest, all US government agencies would have brought their decisions in line with a long-term policy vision directed to avoiding environmental degradation, and these decisions would have been supported by comprehensive information and research facilitated by a new institution, the Council of Environmental Quality. These things did not happen because government agencies were antagonistic and the US Supreme Court read the law down to a set of procedural requirements.

Caldwell’s vision and achievements, which would have been much greater if others had not been working against them, are not widely known. And to top it off, he was a registered Republican voter, working for a Democrat: if only environment was the bipartisan issue today that it was then.

Image: Lynton Caldwell enjoying the great outdoors. Indiana University Archives

Environmental FoIs & the ‘decision-making onion’

Reasons behind an environmental decision are often concealed beneath layers of government process.

By Peter Burnett

Why is it that despite reforms to federal Freedom of Information (FoI) laws, it seems it’s getting more and more difficult to get information out of government on the reasons behind decisions about the environment? These reforms, by the way, declare that embarrassment, loss of confidence in government and public confusion are irrelevant to decisions about whether to release documents. And yet the reforms don’t seem to have helped much.

Where officials might once have claimed substantive exemptions to release, based on grounds like confidentiality, now governments starve FoI processes of funding so that requests are more likely to be strangled by delay or blocked under an exemption based on the request involving an unreasonable diversion of the agency’s resources. Requests are also constricted by charging fees.

Information hidden in layers

Issues of exemptions, delays and fees aside, there can be a question of where to look for pertinent information. Sometimes substantive information is concealed (not necessarily deliberately) under layers of government process. The example that comes to mind is that of decisions concerning the approval or refusal of development projects, following environmental impact assessment (EIA). In the example these decisions are made under the federal Environment Protection and Biodiversity Conservation Act (EPBC Act).

Say you want to know why a minister has approved a controversial project. It’s like an onion: you will have to peel back the layers of advice and deliberation to get to the heart of the matter.

First, there’s the environmental impact statement. You would think this would be a public document, but it’s only public for a limited time, when it is published for public comment. After that you’ll have to make an FoI application. In any event, because it is prepared by the proponent it will tell you about the project but it won’t contain any ministerial thinking. Let’s call this layer 1.

Then there’s the environment department’s ‘recommendation report’, their statutory advice to the minister on whether the development should be approved and, if so, on what conditions (this is layer 2). This is available on application, under the EPBC Act rather than under FoI, although the department can still claim some FoI-style exemptions. Assume however that you’ll get it. As it’s a legal document, it will be couched in formal and evidence-based terms. It will tell you more, but it’s probably not the whole story.

Then there’s the department’s ‘covering brief’ (layer 3) to which the statutory documents are attached. While the brief might blandly transmit the recommendation report and other decisional documents to the minister, equally it might get more directly to the nub of the issue than the recommendation report, and better reveal the ‘flavour’ of the department’s advice. The brief will be available under FoI, subject to the usual exemptions and processes, but a separate application will be needed.

The next layer (number 4) might be advice from a political adviser in the minister’s office. Advisers are not officials, not bound by public service rules or ethics. This advice might be oral or written. If it’s written, it’s still subject to FoI, but in practice it probably won’t be available because often takes an ephemeral form, such as a ‘sticky note’, which might be discarded once the decision is made and the documents returned to departmental custody.

Invisible and hidden layers

The Minister might also meet with the department to discuss its advice. While officials may make a record of the meeting (number 5), such records are often bland: a minister may probe departmental advice, but even if that probing reveals the minister’s political thinking, officials may think that it is not their business to record political comments or inferences.

The minister may also discuss the issue with proponents, lobbyists or other political players, many of whom pride themselves on working invisibly behind the scenes. Such discussions are not likely to be recorded in detail.

There is another process for obtaining reasons (behind decisions), but it doesn’t seem to yield much. Under the Administrative Decisions (Judicial Review) Act (ADJR Act), a person aggrieved by a decision can ask for a formal statement of reasons. The idea is to elicit enough detail about a decision to help the person get legal advice on a legal challenge. The problem is that ministers get government lawyers to draw-up these statements, so they become legally-justifying rather than records of actual thinking. These ‘section 13’ statements are likely to tell you that the minister had regard to all the considerations laid down in the Act and then balanced them carefully in the exercise of discretion. Unless someone’s made a legal mistake in the decision process, it can be a story of ‘move along, nothing to see here’.

Why not just ask?

Rather than wade through FoI processes, there’s always the option of asking. A journalist for example might ask about the reasons for a decision. Politicians of course are legendary for not answering questions.

Another channel for asking is for Senators to ask questions in Estimates Committees. These questions are usually answered by public servants. You could be forgiven for expecting public servants, with their statutory duties of honesty and integrity, and their mantra of ‘frank-and-fearless’ advice, to be straight-shooters. However, in public forums they often aren’t, at least not in response to ‘advice’ questions. This is because public servants ‘advise’ government on policy, but usually do not ‘advise’ other parties.

My experience in Senate Estimates Committee hearings was one of public servants (including myself) answering questions directly, but literally and without elaboration, thereby meeting legal and ethical obligations, but sometimes frustrating Senators who were, in effect, asking for or about advice. Sometimes Senators don’t ask quite the right question, but if they do, the answer might be that the public servant can’t answer because it’s a question about advice!

At the end of the day, you can trust public servants, but they often won’t be much help on the most important questions: the information is concealed by the nature of their duties.

The decision onion

So there you have it. If you try to peel all the layers of the ‘decision onion’, the outer layers will come away easily enough, if slowly, and won’t tell you much. But the inner layers are resistant to removal. Advice from advisers is likely to be ephemeral. Discussions between Ministers and lobbyists or colleagues probably won’t be recorded in detail. An ADJR statement of reasons will be formal and unlikely to offer any real insight. And Estimates hearings won’t reveal advice.

But if you want to know what really was really driving a controversial decision, official processes probably aren’t the way to find out. Perhaps the story will come out years later in a political ‘tell all’ book.

Image by Chris Stermitz from Pixabay

Making better sense of Australia’s Environmental Impact Assessment

Surely we can put an end to overlap and duplication

By Peter Burnett

Environmental Impact Assessment (EIA) is a cornerstone of our system for protecting environmental values in Australia. A long standing problem with the EIA process has been the need to do them to meet both state and federal requirements.

You wouldn’t think that eliminating duplication and overlap between federal and state EIA processes (without compromising environmental outcomes) would be that hard. And yet so it has proven to be.

To date, there have been four attempts to address this issue, on each occasion by creating a mechanism under which the Commonwealth could accredit state EIA processes. Success has been limited and, with an election coming on, some are returning to this rather muddy policy watering hole. The Minerals Council of Australia, a major industry stakeholder, has renewed its call for more progress in this area, while Labor on the other hand recently ruled accreditation out, though it remains in favour of efficient regulation.

Surely there’s a solution here? To appreciate how difficult the issue is, consider what has gone before.

A short history of the fight to end duplication

Prime Minister Hawke was the first to put this topic on the agenda. He raised it as part of his 1990 ‘New Federalism’ push. The overarching theme was efficiency, and removing duplication in EIA was one way to achieve it.

The main result was an accreditation mechanism in the Intergovernmental Agreement on the Environment (IGAE, 1992). Unfortunately, attempts by several states to gain accreditation came to nought. This can be put down in part to the fact that Hawke had been replaced as Prime Minister by Paul Keating, and Keating wasn’t a great fan of cooperative federalism.

Next up it was Robert Hill, Environment Minister in the first Howard Government. He went one step further than the IGAE and included provision for accreditation in Australia’s new national environmental law, the Environment Protection and Biodiversity Conservation Act 1999 (EPBC Act).

There were two types of statutory agreement, one for accreditation of environmental impact assessment processes (‘assessment bilaterals’) and another for accreditation of state final decisions on development proposals (‘approval bilaterals’). With an assessment bilateral, there is only one EIA but still two decision-makers, one federal and one state. Only an approvals bilateral gets it down to a single process and a single (state) decision-maker. Despite the availability of a statutory process, agreement proved difficult and although some assessment bilaterals were negotiated in the early 2000s, approvals bilaterals proved a bridge too far.

The Gillard government was the next to take on the challenge, this time under the title of a ‘Seamless National Economy’ program. However, Prime Minister Gillard pulled the plug on negotiations, on the basis that the result of accrediting different state systems would be to ‘create the regulatory equivalent of a Dalmatian dog’.

Finally, the Abbott Government pursued a ‘one-stop-shop’ initiative to accredit the states. It managed to negotiate assessment bilaterals with every state, a modest achievement, but the holy grail of approvals bilaterals fell by the wayside when the Government discovered that it needed some minor tweaks to the EPBC Act to make accreditation work smoothly. Environment groups were successful in persuading several cross-benchers about the risks of environmental standards slipping, and the Government allowed its amendment Bill to lapse with the 2016 election, without calling on a final vote.

Is it worth another try?

Why is doing this so hard?

The first problem is partly that environment is a shared federal and state responsibility. Even though land management is primarily a state responsibility, the feds were actually on the scene first, with the Whitlam Government passing Australia’s first EIA law in 1974. The feds have been there ever since and I can’t see them vacating the field in favour of the states.

Nor can I see a solution in amending the Constitution. The Hawke Government looked at this in 1989 but, in contrast to some non-environmental Constitutional proposals it had taken to referendum, abandoned the idea without taking it to the people. Giving all the power to one level of government seems to be going too far, yet this is cake that resists the cutting knife.

The second problem is that decisions to approve (or not) development proposals like mines are discretionary. While an approvals bilateral under the EPBC Act could protect against egregious decisions (eg a development likely to cause an extinction), it’s much harder to write an agreement that would stop a pro-development state minister from simply ‘going easy’ on a developer by imposing weak conditions. Standards might be maintained on paper, but accreditation might exacerbate the existing weakness of EIA, the so-called ‘death of a thousand cuts’, by making each of those cuts a little larger.

This leaves the option of going around the problem. If we can’t solve it by accreditation, what about a completely different approach? If there are two objectives, reducing duplication while protecting the environment to a high standard, I think there are only two approaches that can work.

Environmental planning

The first is environmental planning, which involves getting ahead of the game and working out, comprehensively, where development can and can’t occur and under what conditions. If environmental planning is done well, approving particular developments can become quite straightforward. Trouble is, it’s expensive and may also be politically unpalatable because it can bring on all your development disputes at once, as the planners start consulting society about various possibilities, some of which may otherwise never have arisen.

The second is a very detailed set of rules, for example a rule prohibiting development in areas of critical habitat for threatened species. A major problem with this approach is that you either have to identify sensitivities such as critical habitat in advance (which starts to look like environmental planning) or identify them during assessment, which could weigh individual assessments down with some expensive and time consuming extra work, thus failing the test of efficiency.

The solution? If there were an easy option, governments would have taken it long ago. My own view is that we have to bite the bullet and do environmental planning. It would cost, but if done well (which has to include doing the consultation well) I think the investment would pay long term dividends, both environmental and economic. Trouble is, modern governments are very focused on the short-term and tend to give short shrift to long term propositions. The solution is there, but don’t hold your breath.

[Image by Sumanley xulx from Pixabay]

The FDR Gambit

Making a difference (through environmental policy) without rocking the boat

By Peter Burnett

Our environment is in serious decline and our policy response is seriously inadequate. We need to act but, short of a serious crisis, it’s difficult to see what might cause our leaders to take action proportionate to the problem. The major parties are reluctant to move ahead of public opinion and even if there were a crisis and public opinion shifted quickly, would we be prepared to respond?

The efforts of US President Franklin D Roosevelt (FDR) to prepare his country for World War II, a ‘foreign’ or ‘European’ war of which most Americans wanted no part (before Pearl Harbour), suggest there is much that governments could do, even when determined not to rock the political boat.

One researcher, Andrew Macintosh, has noted that governments seem to be willing to deal with certain environmental problems (such as pollution or over-consumption of natural resources), but not others (such as climate change or biodiversity conservation). As a result, Macintosh has proposed some useful rules of thumb about the political limitations on what governments will or won’t tackle in our current policy climate.

First up, most governments only adopt environmental policy that offers some clear short term benefits, such as better health and amenity from reduced air pollution, or keeping a fishery going. These short-term benefits make it politically worthwhile to accept some limited costs.

Beyond these cases, Macintosh argues that governments are only prepared to take real action on environmental problems within boundaries defined by three rules of thumb: avoid significant budgetary costs, avoid significant impacts on economic growth and avoid significant conflict with vested interests.

The policy straight-jacket

That’s a useful heuristic to keep in mind for anyone proposing policy action on the environment.

First, does the policy have a significant impact on the budget? Increasing the environment budget to any noticeable degree will either require savings, and the attendant political pain, in other budget areas, or increasing the size of the budget overall, which will often be seen as putting a drag on the economy.

Second, does the policy slow economic growth? Economic growth has been the mantra of all western governments pretty much since the end of the World War II, when they first pursued growth as a way of giving everyone a job as the world returned to peace. This will often rule out measures such as environmental taxes and pricing (even though economic theory shows that proper environmental pricing will grow the economic pie in the long run, by reducing ‘spillovers’ from the economy onto the environment).

And third, does the policy cause significant conflict with vested interests? If it does, those interests may change their votes or influence others to do so. The 2010 campaign by the mining industry against the proposed mining tax in Australia is an example par excellence of how effective some interests can be when they feel threatened.

Presidential nous

Despite the policy straight-jacket these rules create, I’d like to argue that there is still some scope for significant policy action, without courting defeat at the next election. FDR took some very effective policy action as World War II loomed over his country, despite very strong isolationist sentiment among the public.

FDR acknowledged this sentiment by making and maintaining a pledge that ‘your boys are not going to be sent into any foreign wars.’ At the same time, he managed to provide considerable support to America’s soon-to-be allies, while also preparing America itself for war. He worked with the British to plan for war. He persuaded the Congress to pass a law that enabled America to become the ‘arsenal of democracy’, on the argument that giving him the discretion to make foreign military sales would help to keep the US out of the war! He also moved to expand and re-equip America’s own armed forces.

Admittedly FDR’s strategy involved some secrecy and deception, something I am not advocating here. Yet his efforts show just how much can be achieved within major policy constraints.

Getting on with the job

Taking a lesson from FDR, a government determined to address environmental degradation as far as possible might, without breaking Macintosh’s rules of thumb:

  • Engage in ongoing social dialogue to build broad support for stronger action. The Climate Commission, created under the Gillard Government’s 2011 Clean Energy Future package, to provide authoritative information to the community on climate change, including at ‘town hall’ style meetings, provides an example of how this might be done.
  • Review existing policy comprehensively, redirecting resources as necessary. This exercise might involve two stages. The first would be to adopt an overarching goal for environmental policy, eg to maintain ecological function. The second would be to redirect existing environment spending to the programs most likely to advance that goal. For example, this might result in resources being redirected into research on ecosystem restoration.
  • Establish a comprehensive and coherent environmental information policy optimised to support policy-relevant decision-making, for example by establishing environmental accounts based on the UN System of Environmental-Economic Accounting (SEEA), prioritising the population of accounts for key ecological functions and processes.
  • Increase environmental diplomacy, to promote international agreement and build capacity for quick action when attitudes change.
  • Establish or reform institutions such as an Environmental Protection Agency, to enhance expertise, transparency, continuity and accountability in environmental decision-making.
  • Renegotiate federal–state cooperation under a new Intergovernmental Agreement on the Environment to improve the efficiency of overlapping responsibilities.
  • Negotiate reforms with business to exchange improved efficiency for improved environmental outcomes – for example, business might accept a stricter environmental offsets policy in return for decisions that are quicker and more predicable.

Let’s get on with it

While such measures might seem incremental, their combined effect could be considerable, as present policies often lack clear goal clarity and consistency. If a government thought such an approach a little too mild, it could always take a further leaf from FDR’s book and push the boundaries a little further!

Hopefully, it won’t take a Pearl Harbour moment (an environmental disaster) because, with better environmental information and communication, public opinion will change as evidence mounts that the risks arising from environment degradation are ever-increasing.

But, either way, we can still do a lot better in the meantime without rocking the political boat.

The BIG fix

Why can’t we just fix the environment?

By Peter Burnett

Environmental experts tell us that there are big problems with the environment. Increasingly, our own senses are telling us this too (consider this past year and recent summers). Yet, although we talk about it all the time and governments make announcements, things just get worse. Why can’t we just fix it, once and for all?

There are many reasons why we don’t come up with a big fix. Environmental decline is a complex problem operating at different scales and involving many uncertainties and unknowns. Often we are not sure what needs to be done. How do you restore a degraded landscape for example?

Overspending our natural income

But most of the problem is us. We are consuming nature faster than it can renew itself. We are like a family with a large inheritance (ie nature) in the bank, living off the interest. Except that we don’t. We are over-spending our ‘natural income’, using up nature faster than it can renew itself and making up for it by drawing down the inheritance instead, the ‘natural capital’. If we keep doing this, there won’t be enough nature left for future generations: it’s their inheritance too.

But going back to living off our natural income means not just tightening our belts as individuals or countries, but settling all the ‘family squabbles’ between countries about a fair sharing of the belt-tightening. And paying back our environmental debt, replacing the natural capital we shouldn’t have consumed, eg by going beyond reductions in carbon emissions, and actually taking carbon out of the atmosphere.

So it’s difficult scientifically and it’s difficult socially. The environment is not called a ‘wicked problem’ for nothing! Despite this, there are some things we could do relatively easily. We waste a lot of stuff, eg food. And technology can help us do more with less – eg, renewable energy. But even these ‘low-hanging fruit’ aren’t as easy to pick as it might seem because any change, even positive change, creates winners and losers.

It’s a moving target and we are ‘predictably irrational’

Even if we could pick these low-hanging fruit, by themselves they aren’t enough. New technology and more efficiency will not bring the Earth System back into a safe operating space. The Earth’s population is growing, and so are standards of living, which usually means consuming more. We will still need to take some hard decisions, with far-reaching consequences.

For some on the political Right this raises a spectre of ‘big government’, even ‘world government’. But many others among us are wary too, not because of ideologies about big government but for practical reasons. We don’t like tough decisions. They hit our ‘hip pocket nerve’ and deflate our ingrained expectations of ‘progress’, the sense that our quality of life will always improve.

This is why many of us take the irrational position that we want the environment fixed, but at someone else’s cost. A recent article in The Economist summed this phenomenon up well: ‘Few people like change, even when they have voted for it, and those touched the most like it the least.’ And they weren’t even talking about the environment! Countries think like this too. No-one likes to slip back down the greasy pole.

The environment and the issue-attention cycle

One theorist, Anthony Downs, offered an early explanation as to why we avoid major change as a solution to environmental (and other) problems. He called his article ‘Up and Down with Ecology: the “issue-attention cycle”. He discussed this idea back in the early 1970s and you can probably guess the drift of this argument.

The cycle goes like this: When we first become aware of a major problem like the environment we are alarmed, and then enthusiastically demand action. Sometimes, and the environment is an example of this, we expect a technological solution. Then, as we realise over time how difficult and expensive it is to solve the problem, we lose interest, some because they feel threatened by it, while others become bored or inured.

The reasons may differ, but people are united in not wanting to confront the need for major social change. Other issues emerge (health, immigration, education etc) and the caravan moves on, although even in 1972 Downs thought this would occur more slowly with the environment because of the significance and impact of environmental issues.

Mainstream economics, which underpins most mainstream policy, reinforces our instinctive reactions with its ‘Pareto efficiency’ benchmark. That is based on the idea of making people as well off as possible, without making anyone else worse off (or at least compensating them if they are). It’s a ‘no disadvantage’ test.

Unfortunately, with the environment being a problem of a collective overdrawing of nature’s bank account, there’s no way we could apply such a test. It’s not a matter of compensating a few losers at the margins.

Get real

In fact, we’ve all been winners to varying degrees but between us we’ve consumed the winnings. To fix the problem properly, we’d have to stop increasing our withdrawals of natural capital, pay our ecological debt back to future generations, and work out how to share the belt-tightening, all without sending the current economy into a tailspin.

Given the enormity of this challenge, is it any wonder we either put our heads in the sand, or fall back on weak measures. For example, the best we’ve been able to achieve internationally on climate change is the Paris climate agreement in 2015. This agreement relies on countries taking voluntary action, and (hopefully) then succumbing to peer pressure to push their voluntary commitments up. So far, this has left us a long way short of what’s needed.

Taken together, these arguments suggest, unfortunately, that we won’t demand real action, and governments will not take it, until a crisis makes the problem impossible to ignore. How big a crisis will it take?