Red lines for green values

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What ‘standards’ are we prepared to accept in an overhaul of Australia’s national environment protection laws?

By Peter Burnett

When Professor Graeme Samuel’s Independent Review of the Environmental Protection and Biodiversity Conservation Act (EPBC Act) is tabled, which must occur by early February, we can expect to see recommendations for a complete overhaul of Australia’s national environment protection laws.

In an interim report in July, Samuel declared the EPBC Act to be a failure. Auditor-General Grant Hehir reached similar conclusions in his contemporaneous review of federal environmental approval processes under the same Act.

Despite having received the Samuel Review on 30 October, the Government continued to press a bill it had introduced in August to ‘streamline’ environmental approvals by devolving approval powers to the States in advance of the Review.

Professor Samuel had supported devolution in his interim report in July, but only in the context of a full reform package built on a foundation of his proposed National Environmental Standards.

A Senate Inquiry into the streamlining bill prompted key crossbench Senators to oppose it, not because they were necessarily opposed to devolution but because the government refused to provide them with the Samuel Review and other key supporting documents.

At the last moment, environment minister Sussan Ley provided the Inquiry, and thus all of us, with a copy of the draft Standards from the Samuel Report.

The draft Standards are the key to national environmental reform and thus worth a closer look, even without the benefit of the full Samuel Report.

Why set standards?

The standards deal with the so-called ‘matters of national environmental significance’ that are protected by the EPBC Act. Some of these like World Heritage and threatened species are well known. Others, such as internationally significant ‘Ramsar’ wetlands, are not.

Despite being confined to the Commonwealth’s responsibilities, the standards address the bulk of Australia’s most significant natural environmental and heritage values (other than climate), and have implications for the rest.

A key problem with many environment protection laws, including the EPBC Act, is that they require decision makers to follow due process and to consider various policies and principles (in Australia, often built around the concept of ‘ecologically sustainable development’) but without setting a bottom line based on maintaining essential environmental values and functions.

This enables a culture in which decision-makers can, and often do, pay lip service to the environment while approving its ongoing decline. Sometimes this lip service is paid by burdening industry with numerous ‘strict conditions’, thus delivering a ‘lose-lose’ outcome.

National Environmental Standards could change all that. Their key purpose is to set minimum environmental outcomes, including for decisions devolved to states.

A good set of environmental standards will identify our most important environment and heritage values and define the level of environmental function needed to maintain those values over time. The effect of standards is to place off-limits any deliberate degrading of these values and functions. One result is that significant or irreversible environmental loss cannot be traded for an economic or social gain, no matter how large, except possibly in national emergencies.

The Samuel Standards

Professor Samuel delivered a set of 10 national environmental standards, one overarching and one for each of nine matters of national environmental significance. The Standards would be relevant to activities and decisions at all scales but their most obvious application would be in assessing development proposals.

Apart from being innovative in themselves, the standards introduce policy concepts such as a ‘principle of non-regression’ and the ‘ecological feasibility’ of biodiversity offsets.

They also give new recognition to some not-so-new concepts such as the need to consider the impacts of development proposals on a cumulative basis. This would address a long-standing concern of environmentalists that individual developments chip away at environmental values, a process known colloquially as ‘the death of a thousand cuts’.

Addressing cumulative impacts implies there should be a bottom line for each species and ecosystem. To take a current example, it implies that government should determine a minimum viable habitat and population for koalas, probably for each population region. As this threshold of viability was approached, development approvals with koala impacts would become increasingly difficult and ultimately impossible to obtain. (The corollary is that if the threshold has been crossed, investment in recovery and restoration is an imperitive).

The standards are certainly not perfect. In discussions within a consultative group of which I was a member, Professor Samuel made clear his dislike for ‘weasel words’, a dislike that I share.

Unfortunately, the standards retain too many of these undesirable creatures. Some, such as ‘promote’ and ‘not inconsistent with’ come from the existing Act, while others such as ‘all reasonable efforts’ are new.

There is much to welcome and discuss in these standards, but I would start with an edit. This would be for policy clarity, not drafting elegance.

Red lines for a green solution?

The standards present the Government with a conundrum. On the one hand, with the EPBC Act declared a failure and the environment in ongoing and increasingly obvious decline, the case for reform is overwhelming and the potential of the standards as a foundation for action is great.

On the other hand, implementing standards would require a major and costly upgrade of our regulatory infrastructure, starting with what Samuel has described as a ‘quantum shift’ in the availability of environmental information.

Setting standards would also amount to drawing red lines for nature. As the Brexit negotiations most-recently illustrate, red lines can attract a world of political pain.

Image by Shell brown from Pixabay

The frog in the equation

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In this story, the sting is in the tale

By David Salt

Frogs figure heavily in cautionary moral fables. But some frog tales are more helpful than others in serving as a guide to sustainable living. Consider these batrachian parables.

The boiling frog

Possibly best known is the parable of the boiling frog.

So this frog notices the water it’s in is warming, but doesn’t sense danger because the increase in temperature is so gradual that it doesn’t think to get out. Unfortunately, at a certain point, the water becomes so hot the frog dies.

This the fable of the frog in the saucepan, often referred to as the boiling frog story*. It’s a cautionary tale about the dangers of ignoring small changes and has been much used to warn of us about a variety of concerns from environmental degradation through to the rising tide of communism. Indeed, I alluded to it in my last discussion on humanity ignoring the increasing frequency of ‘natural’ disasters due to climate change.

While the story itself is has no basis in reality, frogs don’t hang around when the temperature increases beyond its comfort zone** – they are ecotherms, hard wired to respond to changing temperatures – the moral of the metaphor is important; don’t take incremental changes for granted when the trend suggests it will take you to a bad (even disastrous) place.

As metaphors go, it’s a great cautionary story; simple, evocative and brimming with intuitive truth. Don’t take cumulative little changes for granted.

And it’s been much used in campaigns on sustainability to warn us about where our rampant consumption of the Earth’s resources is taking us. We think it’s okay to clear that patch of bush (it’s only a tiny piece of nature); to turn a blind eye to a few more parts per million of carbon dioxide in the atmosphere (parts per million! for God’s sake how insignificant is that); and to not even notice sea levels are rising (we’re talking millimetres, tides and waves are measured in metres, sea level rise is nothing by comparison) – we take it all for granted, only think of ourselves in the short term and, before you know it, we’re roasting in hell like a boiled frog.

So, the message and the metaphor is clear; be alert, be alarmed, temperature’s rising, do something. Don’t wait till tomorrow.

The drowning frog

Then there’s scorpion that wants to cross a river. It asks the frog to carry it over. The frog says: “No, you’ll sting me.”

“But then I’d drown with you,” responds the scorpion, “that simply doesn’t make sense.”

The frog acknowledges this, allows the scorpion to climb on its back and begins swimming. Half way over the scorpion stings the frog. As they go under the frog wants to know why: “Why did you do that? Now we’re both going to die!”

The scorpion responds: “Because I’m a scorpion.”

Of course, what the scorpion means is that scorpions, by their nature, will always sting. It’s not rational; it’s just how things work.

It’s been pointed out by some that this is a strange fable; there’s no obvious moral here. Everyone dies. And yet I suspect the ‘drowning’ frog is possibly more instructive than the ‘boiling frog’.

The disappearing frog

Actually, this final tale is not a parable but it alludes to an important metaphor – take note of the ‘canary in the climate coal mine’.

Species of frogs are disappearing all over the world. Over a third of all known species of frogs (and amphibians more generally) are considered at risk of extinction making them the most at risk group of vertebrates on the planet.

Frog populations have declined dramatically since the 1950s, coincidently the same period that saw unbounded economic growth begin to distort the Earth system, the so called Great Acceleration. The Great Acceleration continues to this day, but it now underpins an exploding biodiversity crisis.

More than 120 species of frog are believed to have gone extinct since the 1980s. Among these species are the gastric-brooding frog of Australia and the golden toad of Costa Rica. Habitat loss and degradation, pollution, disease, invasive species and climate change are the main threats putting amphibians at risk of extinction though in some cases what’s knocking them off isn’t clear.

Many environmental scientists believe frogs are good biological indicators of broader ecosystem health because of their intermediate position in food chains, their permeable skin (making them sensitive to toxins in the environment), and their aquatic/terrestrial life cycles. If something is slowly disturbing natural balances, it’s expected impacts will show up first in frog populations.

It’s not known why populations of the golden toad in Costa Rica crashed in 1987, along with about 20 other frog species in the area. These species lived in the pristine Monteverde Cloud Forest Reserve and the population crash could not be linked directly to human activities, such as deforestation; but something was happening. Are frogs our planetary early warning system, our canaries?

Canaries were once used in coal mines to detect carbon monoxide and other toxic gases. The little birds would keel over before the gas was detected by the miners.

Temperature’s still rising

So what should we take away from these tales of frogs?

Clearly something is killing them at rates never before seen. Most of the drivers of their extinction are well understood (though not all) but humanity is not responding to the many small (and sometimes big) changes we’re seeing around us.

There’s a lot we could do immediately to slow their rate of loss: stop clearing native vegetation, invest more in our protected area system, and better resource research into frog disease (especially the chytrid fungus disease).

And the ‘elephant’ in the room is climate change as it multiplies all the other stressors impacting on frogs. And tackling climate change requires a transformation of the way humanity does business.

As it stands, humanity is doing neither (that is acting on immediate or longer term threats to frogs) and this is reflected in our abysmal multiple failures on meeting agreed targets of the Convention on Biological Diversity.

On the one hand, it’s all so ‘boiling frog’; except it’s humans not frogs who are basking in the slowly heating water, relishing the warmth while wondering why the canary has just fallen off its perch; could it have anything to do with that elephant over there that no one wants to talk about? What a menagerie of metaphor we find ourselves in.

For me, however, the ‘boiling frog’ fable simply doesn’t cut it. We can claim that we, as individuals, aren’t experiencing the changing ‘climate signal’ because it’s lost in the ‘weather noise’ – “gee it was hot last summer, wasn’t it?; and what about those fires”; “but summers are meant to be hot, and we’re always having fires”…

However, as a society, we can’t hide behind the incremental nature of global change. With an overwhelming scientific consensus coupled with over 50 years of empirical evidence, we can’t deny the ‘rising water temperature’ around us or the consequences of what all this means for future generations.

Which is where the ‘drowning frog’ (with the stinging scorpion on its back) comes to the fore. Except in this parable, it’s we humans who are the scorpion (and the frog is the Earth system that sustains us).

Why did we do it? It’s simply in our nature.

*Here’s another telling of the boiling frog story, a rather more eloquent version, from Daniel Quinn’s book The Story of B: “If you drop a frog in a pot of boiling water, it will of course frantically try to clamber out. But if you place it gently in a pot of tepid water and turn the heat on low, it will float there quite placidly. As the water gradually heats up, the frog will sink into a tranquil stupor, exactly like one of us in a hot bath, and before long, with a smile on its face, it will unresistingly allow itself to be boiled to death.”

**Whit Gibbons from the University of Georgia wrote up this rebuttal on the truth of boiling frogs back in 2007. Quoting Dr Vic Hutchison, Whit recorded: “The legend is entirely incorrect! The ‘critical thermal maxima’ of many species of frogs have been determined by several investigators. In this procedure, the water in which a frog is submerged is heated gradually at about 2 degrees Fahrenheit per minute. As the temperature of the water is gradually increased, the frog will eventually become more and more active in attempts to escape the heated water. If the container size and opening allow the frog to jump out, it will do so.”

Image by David Salt

On target for disappointment

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The Fifth Global Biodiversity Outlook is in and the judges are unanimous – we need better targets

By David Salt

Guess what? Humanity has missed its targets and is failing life on Earth.

We know this because the latest (and grandest) stocktake of efforts to save biodiversity has just been released and it shows that the world has failed to meet a single target it agreed to back in 2010. The stocktake is known as the Global Biodiversity Outlook (GBO), and this is the fifth such report.

GBO 5 reports on progress of 20 targets signed up to by signatories to the Convention on Biological Diversity (CBD) at Aichi in Japan in 2010. They are known as the Aichi Targets.

Rather than demonstrating that humanity acknowledges the existential importance of our natural capital and that we might be making steps to look after it, this Outlook report has told us we’re doing the opposite – we’re burning up that capital faster than ever before.

One stand out failure, among many, is that governments around the world are still subsidising environmental damage to the tune of $500 billion, rather than dismantling these perverse policies as they committed to do.

The funny thing is, rather than serving as a wakeup call galvanising governments to change their course, the general response has been to debate what will go into the next set of targets being discussed soon in Kunming China. If the current targets simply set us up for failure – even though they were designed to slow and maybe reverse the destruction of humanity’s life support – then maybe we should adopt more measured targets that are achievable. See the humour there?

Countdown to disappointment

The lead up to this epic fail (as documented by GBO 5) goes back some 30 years, in a documentable sense anyway; the broader history of biodiversity decline is really the flip side of the rise of Homo sapiens.

From the 1960s on there was growing concern around the world that rampant economic growth was resulting in unsustainable environmental degradation with the decline of biodiversity being one of its most worrying manifestations. To address this, most of the world’s nations signed up to the Convention of Biological Diversity (CBD) in 1992 at the Earth Summit in Rio (though the US, along with Andorra, Iraq and Somalia, never ratified it). In this Convention, signatories promised to do something about declining biodiversity.

In 2002, at the World Summit on Sustainable Development held in Johannesburg (famously boycotted by US President George W Bush), signatories agreed to refine this somewhat vague aspiration by agreeing to work to specific targets – these being to halt or reverse declines in biodiversity by the year 2010. To celebrate what nations signing up to the CBD hoped would be achieved, 2010 was declared the International Year of Biodiversity.

Well, rather than demonstrate the success of the CBD, the release of the third Global Biodiversity Outlook in 2010 revealed that biodiversity declines were accelerating (at all scales), that the drivers of decline (land clearing, invasive species, over exploitation, pollution and climate change) were growing and that the future was looking bleak.

I remember reading the press statements put out at the time of the release of the Global Biodiversity Outlook 3 – in what was supposed to be a celebratory International Year of Biodiversity – and feeling both disappointed and disgusted. The issue wasn’t being meaningfully addressed, the losses were accelerating and forecasts were of worse to come.

So, how did the UN and the organisers of the CBD respond to the breathtaking failure of 2010? They came up with a more comprehensive and nuanced set of targets (the Aichi Targets) for what was needed to be achieved by 2020!

Well now it’s 2020

The fact we’ve failed again comes as no surprise to anyone who’s been paying even half attention to the news in the past decade. But it does leave you gasping. It also makes you wonder what it would take to convince humanity to start making a difference when it comes to conserving biodiversity.

Last year the Intergovernmental Science-Policy Platform on Biodiversity and Ecosystem Services (IPBES) released its own global assessment of biodiversity. Amidst headlines shouting that 1,000,000 species are threatened with extinction, IPBES said the world needs ‘transformative change’; and by that they meant a “fundamental, system-wide reorganization across technological, economic and social factors, including paradigms, goals and values.”

At the time I expressed significant pessimism that the world would listen or do anything because transformative change never comes easy. It requires considerable sacrifice, and the elites who hold the power and derive the most benefits from the existing status quo do the most to block any change that threatens that balance.

“The American way of life is not up for negotiation,” said President George Bush (Snr) at the 1992 Earth Summit in Rio, the event where the Convention of Biological Diversity was signed. Sustainability is all well and good, but not if it requires the rich to forego their privilege.

Which means if you want international consensus on biodiversity you have to be very careful with the targets you choose and the way you word them.

Damned if you do, damned if you don’t

However, if your targets are consistently not being met, and collapsing ecosystems (the Great Barrier Reef is but one high profile example) and accelerating species loss and histrionic calls to arms are not galvanising widespread action, then what do you do?

What do you do in the face of an existential threat when the world doesn’t seem to want to know? It’s a question I’ve asked myself so many times between 2010 (the failed International Year of Biodiversity) and this latest gloomy report and I think many people resort to nihilism or fundamentalism. Others stay engaged and attempt to make the next step something that works better.

And yet those policy makers, conservationists and diplomats working for a more effective set of targets in 2030 (or whenever) do so in the knowledge there’s little prospect for significant improvement in government policy on the horizon (just consider our own government’s efforts over environmental policy reform).

However, even if we missed the boat on CBD targets, there’s considerable evidence suggesting efforts to conserve biodiversity since the CBD came into force in 1993 have had some impact. As Stuart Butchart, Chief Scientist at Birdlife International, points out, without those efforts 28-48 bird and mammal species would have gone extinct and the extinction rate in recent decades would have been at least 3-4 times higher. What’s more, he says that protected areas are contributing measurably to conserving species in some of the world’s most diverse and threatened terrestrial ecosystems.

So, the future looks grim but we know there are conservation tools that can make a difference. Our real target should be how we make our political leaders agree to deploy them.

Image by OpenClipart-Vectors 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