Five transformations: Breathing life into Australia’s national environmental law

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By Peter Burnett

I often write in these blogs about Australia’s national environmental law, the Environment Protection and Biodiversity Conservation Act 1999 (EPBC Act). My excuse is that the EPBC Act is the most important environmental law in the country, but it doesn’t work. This is something we all should be worried about, and, as you’ve heard before, this is a piece of legislation that badly needs reform. Australia’s new federal government is making hopeful sounds here but, again as you’ve heard before, talk is cheap.

The job of reform is big, complex and challenging. However, if you reflect on the basic aims of what the EPBC Act was established to achieve, I think it’s possible to envisage a simple pathway forward. And that pathway involves five basic transformations on how the Act currently performs.

The story so far …

The new Australian government has promised to overhaul the EPBC Act and to establish a independent federal Environmental Protection Agency (EPA).

In pursuit of this reform, environment minister Tanya Plibersek has promised to respond to Professor Graeme Samuel’s 2020 review of the Act by the end of this year and to table proposed new laws in 2023.

Plibersek has hinted strongly that the government will follow Samuel’s recommendations, so that provides a clear starting point for discussion while we wait for the detail of the government’s plan.

From great green hope to great green flop

Looking back over the history of the EPBC Act — three years in development and 22 years in operation — it is clear that few of the high hopes held for the Act have been realised. While it expanded federal government involvement in environmental regulation significantly, the evidence suggests that the benefits of this have been marginal. Worse, when we look at the whole picture, the limited benefits achieved are partly offset by the resulting regulatory duplication.

The fundamental reason for this failure to deliver is not poor regulatory design, but gross under-implementation, mostly the result of under-resourcing and a lack of political will.

The EPBC Act can be seen as a three-legged stool on which most of one leg, dealing with environmental planning, is largely missing. (The other two legs protect the so-called ‘matters of national environmental significance’ and provide for environmental impact assessment.)

Most of the plans envisaged by the Act, and essential to its operational, are either vague in content, sitting unimplemented on the shelf, or simply not done.

Meanwhile, as Professor Samuel put it in his review, ‘Australia’s natural environment and iconic places are in an overall state of decline and are under increasing threat.’

What should we do about it?

The EPBC Act is highly complex. It is over 1,000 pages long and there are hundreds of pages of supporting regulations and determinations.

And the Act in turn sits within a complex set of roles, responsibilities, laws and agreements that govern the environment in Australia’s federal system.

Understanding the system is no mean thing, let alone fixing it. So, where to start?

When I went through Professor Samuel’s 38 recommendations, it struck me that he was calling for a complete transformation, in fact five of them. These are:

First, to change from prescriptive regulatory processes to setting and pursuing national environmental outcomes

  • the EPBC Act (and its state counterparts) focus on following due process, a ‘box ticking’ exercise that requires consideration of various factors such as biodiversity loss and the precautionary principle but, at the end of the day, allows governments to decide pretty much anything they like

Second, to shift from Indigenous tokenism to full use of Indigenous knowledge and a full recognition of Indigenous values

  • Samuel was highly critical of the tokenism of current arrangements, while recent events, especially the Juukan Gorge disaster in 2020, have generated considerable impetus for change

Third, to simplify regulatory processes and harmonise environmental processes and outcomes between federal and state jurisdictions

  • this isn’t just about ‘streamlining’ which has become almost a cliché, but a call for harmonisation of processes and outcomes across the nation

Fourth, to lay new foundations for quality decision-making

  • many of the foundations of the current system are either significantly under-done (eg environmental information, compliance and enforcement) or not done at all (eg bioregional planning across the continent)

Fifth, to restore trust in decision-making

  • damningly, Samuel found that none of the key stakeholder groups — business, environment groups and the wider community — trusted the current arrangements.

The reform process going forward

I’ll take a closer look at each transformation in a series of blogs over the next two months, in the lead up to Tanya Plibersek’s response to Samuel.

The reform debate will last right through 2023 and into 2024, as, once the response is on the table, there’s a large reform Bill to draft and an extended Parliamentary process to navigate as Plibersek seeks to shepherd her reforms through a Senate in which the balance of power, for the first time, lies with a cross-bench that is tinged a fairly dark shade of green.

Among other things, she will have to deal with very strong pressure to extend the EPBC Act by including a ‘climate trigger’.

My aim in the lead-up to that debate is to offer some points of focus in a discussion that always risks getting lost in its own complexity. (If you prefer to watch rather than read, I presented these transformations in a Parliamentary Library Seminar on 30 August.)

The problem is enormous and policy ambition needs to be high — bring on the reform!

Banner image: The job of reform is big, complex and challenging. However, it’s possible to envisage a simple pathway forward involving five basic transformations. (Image by David Salt)

Game of Sustainability – Episode One: A New Hope

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By Peter Burnett

This is another in our series on the environmental policies of previous Australian Governments. This time, the policy story is too long for a single blog …

In my last blog in this series I told the story of how the Hawke government started with an environmental bang in 1983 by blocking Tasmania’s Franklin Dam project. It did this by passing laws to protect the World Heritage status of the surrounding wilderness.

By taking this unprecedented action, Hawke dramatically expanded federal environmental power through the High Court decision in the Tasmanian Dam Case. After that, Hawke pretty much lost interest in the environment.

Until, that is, the 1987 election was in the offing.

The second wave

There was a second global wave of environmental concern in the mid 1980s (the first wave was in the late 1960s and early 1970s).

In 1984, the worst industrial disaster in world history, a chemical accident at Union Carbide’s Bhopal factory in India killed more than 22,000 people.

Then in 1986 there was a nuclear accident at the Chernobyl nuclear power station in the Soviet Union (now in modern-day Ukraine). The casualties were much lower than Bhopal (the death toll will eventually reach around 4,000 when long-term injuries are included) but the accident forced the resettlement of some 350,000 people and released a radioactive cloud that gave the world, and Europeans in particular, enormous concern.

The resulting wave of environmental concern swept around the world. And it affected Australia as well, although the issues here played out more through a revival in anti-development sentiment, again played out in several instances through World Heritage nominations.

Environmental revival in politics

All this led the Hawke Government to run hard on environmental issues in the lead up to the 1987 election. Labor made campaign commitments about environmentally-significant areas such as Kakadu Stage II; in return the environment movement had advocated a vote for Labor.

Graham Richardson, an influential party fixer, was instrumental in this political deal-making. His reward after Labor won the election was not just promotion to the ministry as Environment Minister, but the elevation of the environment portfolio to cabinet.

Suddenly the environment was at the centre of Australian policy-making.

Let the games begin …

Yet there was more to this second wave than a return to prominence of environmental issues. The whole debate was about to shift from a case-by-case approach (revolving around ‘places of the heart’) to one based on joined up, but complex and contested, policy principles.

Just after the election, the United Nations released a major report, Our Common Future, also known as the Brundtland Report. This is the report that put Sustainable Development on the map.

Brundtland argued that countries should pursue Sustainable Development as ‘development that meets the needs of the present generation without compromising the ability of future generations to meet their own needs’.

This deceptively simple idea captured imaginations around the world. Within five years, at the Rio Earth Summit in 1992, Sustainable Development would become the phrase on everyone’s lips and the foundation stone for Agenda 21, an action plan endorsed by almost every country and major stakeholder group in the world.

Meanwhile, back home …

Even though Australia was part of this global phenomenon, things played out differently at home during the five years between the publication of Our Common Future through to the Rio Earth Summit.

Richardson rejected early advice from his department to take the Brundtland Report to Cabinet for a discussion of its policy implications. He was a political hardhead and hardly a policy nerd — presumably he wanted to stick with the simple ‘case-by-case’ political appeal of World Heritage listings, rather than explore the rabbit warrens of a policy concept like Sustainable Development.

However, ministers with economic portfolios were deeply frustrated by Richardson’s ‘one-off forays’, or ‘icons’ approach as they called it (an icons approach only worries about the iconic bits of nature, the special rainforests and coral reefs, for example).

Richardson had the reputation of stitching up deals on popular environmental causes with Prime Minister Hawke in advance of Cabinet meetings, with the result (as they saw it) that well-developed proposals for economic development would be torpedoed by the latest popular environmental cause. Economic ministers wanted some rules to play by.

Primary Industries Minister John Kerin led a Cabinet revolt. He first took his frustrations to Cabinet at the end of 1987, arguing that existing processes for considering conservation and development proposals were characterised by a lack of consistency and frequent requirements for:

eleventh hour ad hoc responses to proposals … (both within and outside Governments), minimal recognition of the multiple objectives involved in resource allocation decisions and a propensity for parties to seek ‘winner take all outcomes’ without understanding economic, social or environmental consequences.*

Round one to rationality … sort of

Round one went to Kerin and the economic ministers. Sort of. The government announced in late 1988 that it would establish a Resource Assessment Commission (RAC) to assess major environment and development issues. However, while the advice of the RAC was to be based on three legislated principles, dealing with policy integration, optimising benefits and sequential use of land, this was not ‘Sustainable Development’ as was being discussed elsewhere around the world.

In fact, in a process later described by Richardson as ‘long and difficult’, officials had come up with no less than forty five principles related to environment and development, covering everything from ‘maintaining essential ecological processes and life support systems’ (spot-on) through ‘development and environmental considerations should be taken into account … early’ (relevant) to ‘rights of interested parties … in the decision-making process should be made clear and adequately publicised’ (marginal)!

In other words, although Sustainable Development had been on the table for more than a year, the Australian government had yet to engage with it properly.

All this would change the following year, 1989.

Watch this space for the next exciting episode in this ‘Game of Sustainability!’

*John C Kerin (2017). The Way I Saw It; the Way It Was: The Making of National Agricultural and Natural Resource Management Policy (Analysis and Policy Observatory)

Banner image: What is ‘sustainable development’? Is it protecting the best bits of nature? Is it the right to clean water and safe food for everyone? Or is it living in a way that doesn’t limit the choices of future generations? The debate on what sustainable development meant was raging towards the end of the 1980s; and in Australia it took on its own unique direction. (Image by David Salt)

Should we include a climate-change trigger in national environmental law?

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By Peter Burnett

In Australia this week, all eyes (well most of them) are on Canberra for the first sitting of Parliament since Labor came to power in May. The first order of business is the promised Climate Change Bill, to enshrine the government’s promised 43% target.

While public debate on the bill has focused on the target itself and the nature of a possible ‘ratcheting mechanism’ to raise the target over time, there’s also been quite a bit of attention given to something that definitely won’t be included: a ‘climate trigger’ for environmental approval of large projects such as mines and dams.

Let me explain.

Triggering the EPBC Act

For constitutional reasons, our main national environmental law, the Environment Protection and Biodiversity Conservation Act 1999 (EPBC Act), is based on a set of ‘triggers’. These are formally known as ‘matters of national environmental significance’. The triggers cover various things you’d expect to be of national significance, such as impacts to World Heritage places and threatened species, but not the most obvious candidate of all, climate change.

The EPBC Act was drafted by the conservative Howard Coalition government in the late 1990s as part of an overhaul of national environmental law. This bold reform was an unlikely project for a conservative government, but came about for two reasons.

First, Howard had courted the environment movement quite successfully in the 1996 election campaign, largely by promising a large pot of money (the National Heritage Trust) in exchange for privatising the national phone company, Telstra. There was a sentiment at the time that perhaps conservatives could care for the environment as well as progressives, by investing in it.

Second, Howard’s environment minister, Senator Robert Hill, was not just a skilled political operator, but a genuine environmental reformer (though perhaps a flawed one — see below).

In particular, Hill demonstrated an ability to navigate obstacles in government where others would have foundered on the political rocks.

Kyoto and the climate trigger

Despite Hill’s commitment to reforming environmental law he also led the Howard Government’s negotiating team at Kyoto, securing the notorious ‘Australia clause’, under which Australia was allowed to increase its emissions to 108% of 1990 levels, despite other rich countries being locked-into cuts.

Beyond this, also notoriously, Howard refused to ratify the Kyoto Protocol, despite Australia’s easy ride through with the Australia clause.

Howard had a real thing about action on climate change. Despite Australia’s easy ride, early on his major concern seemed to be that Australia might be taken for a ride, by being required to do more than its fair share of the ‘heavy lifting’. Later on, he seemed determined to hold out on ratification as a way of supporting the USA under George W Bush.

You can see why, despite being the most obvious candidate, climate was never going to be a trigger in the EPBC Act. Unfortunately for the government though, it had to do a deal with a minor party, the Australian Democrats, to get the EPBC Bill through the Senate.

Howard agreed to more than 400 Democrat amendments to secure passage, but wouldn’t include a climate trigger.

A climate trigger discussion paper

The government did however agree to consult about including a climate trigger by later amendment, and released a discussion paper on the topic at the end of 1999.

An obvious issue was the emissions threshold for the trigger. The lowest number discussed was 500,000 tonnes CO2-equivalent. This was said to capture 92% of emissions from new major facilities, such as power stations and aluminium smelters, then under construction.

Interestingly, today’s ‘safeguard mechanism’, enacted by the Abbott Government to support its Emissions Reduction Fund and requiring large emitters (currently 215 of them) to meet an individually-tailored emissions cap, has a threshold of 100,000 tonnes.

Even more interestingly, while the discussion paper canvassed some of the more technical issues associated with defining the trigger in some detail, such as whether emission estimates would be based on average or peak capacity, it completely avoided the significant issue of what kinds of requirements might be imposed on a new facility once the trigger was, well, triggered.

The discussion paper said this was because approval decisions had to be consistent with the principles of ecologically sustainable development and should take account of issues such as jobs and international competitiveness. (Had they addressed the issue, I think the most likely approach at the time would have been to require that the proponent use ‘best available low-emission technology at reasonable cost’.)

Then there was the issue of carbon emissions from land clearing. The discussion paper simply excluded this topic; the implication was that land clearing was not a ‘project’.

I think this explanation and exclusion are tendentious. I suspect that the government never intended to introduce a trigger, but simply to go through the motions. In that context, any content beyond the barest minimum could expose the government to enemy political fire, for no gain (to them).

Back to the future

So, there we have it. No climate trigger. But should we have one now?

Labor is promising to re-orient the safeguard mechanism, under which emissions from the major facilities are capped.

The previous government kept resetting the caps, giving emitters an easy ride in meeting them. Now, the government will lower the caps progressively, as the theory says such a scheme should, forcing facilities to lower emissions or buy emissions credits.

Under that scenario, it doesn’t make much sense to apply a climate trigger to major facilities — anyone building such a facility already knows that its emissions will be subject to a reducing cap.

Even if a climate trigger applied, what conditions could the environment minister impose that would achieve more than keeping emissions under a reducing cap? (In theory, a trigger would allow the minister to block a project entirely, this seems unlikely).

What about land-clearing?

Then there’s land clearing. Although the significance of land clearing is usually seen in terms of habitat loss, it is also significant for carbon emissions where the vegetation concerned is of high quality (low quality regrowth areas are marginal in terms of carbon emissions).

At present there is no land clearing trigger in the EPBC Act, even for biodiversity-related reasons. And, unlike industrial facilities, there are no climate-related laws applying to land clearing.

Thus, above a certain extent and quality, there is a case for a climate trigger relating to land clearing.

However, states and territories all regulate land clearing for other reasons. Due to the complexities of doubling-up on land regulation, it might be more effective to combine a trigger with a national standard for land clearing and to switch off the trigger in states where clearing laws meet the standard.

And in the end?

At the end of the day, given Labor’s plans for the safeguard mechanism, the case for a ‘climate trigger’ is particular rather than general. It would make sense for the clearing of significant areas of land containing old-growth and other high quality vegetation, but that’s about all.

In any event, a climate trigger is off the agenda as an amendment to the Climate Change Bill, given climate minister Chris Bowen’s statement that the government would rather pursue its climate target on a non-statutory basis, than have policy change forced on it by legislative amendment.

But there will be a second opportunity, when environment minister Tanya Plibersek delivers on her commitment to introduce major reforms to the EPBC Act in 2023.

Then, unlike now, the government won’t have the clean option of simply walking away, because so much of the non-climate environmental reform agenda hangs off that reform.

Banner image by Yazril Tri Mulyana from Pixabay

Lies, damned lies and … Environmental Economics?

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A single LNG development in Australia could raise the global temperature by a tiny amount. Should it be allowed? What has the ‘economics of substitution’ got to do with it?

By Peter Burnett

People frustrated by weak government responses to the Paris Agreement (with its goal of limiting global warming to ‘well below’ 2° Celsius and ‘pursuing efforts’ to achieve 1.5°’), continue to look for ways to pressure governments for stronger action. One strategy is to challenge fossil fuel developments in court.

In the latest Australian challenge, the Australian Conservation Foundation (ACF) is challenging the federal approval given to Woodside Energy’s $16 billion Scarborough liquefied natural gas (LNG) project, off the Pilbara coast in Western Australia.

The formal basis for the challenge is, in essence, that Woodside obtained approval from the wrong federal regulator. Beyond that, it gets complicated. But it’s worth considering the details here because there are some very important principles at play.

Offshore Approvals and the Reef ‘carve-out’

Under Australia’s national environmental law, the Environment Protection and Biodiversity Conservation Act (EPBC Act) the federal environment minister would normally need to approve major developments such as Scarborough. However, in 2014, then environment minister Greg Hunt switched off this requirement for offshore projects by, in effect, accrediting the National Offshore Petroleum Safety and Environmental Management Authority (NOPSEMA) to approve projects in his stead.

The basis for NOPSEMA’s accreditation is that its regulatory regime was assessed as meeting the requirements of the EPBC Act. But the accreditation had several ‘carve-outs’, including for projects likely to have a significant impact on the Great Barrier Reef (GBR). In other words, if a major offshore project was likely to have an impact on the GBR, then NOPSEMA could not approve it and the task but would revert to the minister for the environment.

ACF’s claim is that even though Scarborough is off WA, its total greenhouse gas emissions, especially the ‘scope 3’ emissions generated when the gas is burnt by overseas customers, will be so large that as to have a significant impact on the GBR, even though it lies on the other side of the country.

If the ACF win the case, this would trigger the carve-out and bounce the project back to Australia’s new environment minister Tanya Plibersek for a fresh approval process, something that could take years (which could well scuttle the proposal).

Overheating

An analysis by Climate Analytics found that the total emissions from the Scarborough project were just under 1.4 billion tonnes, three times Australia’s annual emissions. ACF argues that this will result in 0.000394 degrees of additional global warming that will harm the Reef.

Woodside may counter that this is not a significant impact, even on the back of existing emissions-driven climate change.

Is an extra 4 x 10,000ths of a degree significant? I think there is a good argument that when the GBR is already at a critical point, every additional measurable impact on the whole reef is significant. Keep in mind this is a single development which, by itself, has the capacity to create a measurable global temperature increase (at a time when the world is already overheating).

A second likely defence argument will be that 1.4 billion tonnes is a gross figure, which would be offset significantly, if not completely, by various factors, including that gas from Scarborough, relatively low in carbon intensity, will displace other fossil fuels with significantly higher carbon intensity. This is the ‘market substitution’ argument.

We have been here before. In 2015, environment minister Greg Hunt used a similar argument in successfully defeating ACF’s challenge to Adani’s huge Carmichael coal mine in Queensland. The Federal Court upheld the minister’s decision at both first instance and on appeal.

So, if this argument has failed before, why run it again?

Will the market substitution argument prevail?

The basic argument may be the same, but the legal context is different, notwithstanding that both cases concern the application of the EPBC Act. In the Carmichael case, the relevant arguments revolved around the meaning of certain words in the Act, including ‘relevant impact’.

However, the appeal judges did say that their decision was made on the basis of the particular arguments which ACF had put; they dropped a hint that a different argument might have led to a different result. With so much at stake, this alone is enough to make one think it was worth having another go at the market substitution argument.

I don’t know what arguments ACF and their lawyers have in mind this time around, but the Scarborough case turns on some different legislative words, especially on what is a ‘significant’ impact, as distinct from the meaning of ‘impact’ itself.

In this slightly changed context, I think the economic substitution argument could be attacked from a different angle to the one used in Carmichael. It goes like this:

If the total emissions from the Scarborough project, including scope 3 emissions, are ‘likely to have a significant impact’ on the GBR, the current approval from NOPSEMA is invalid and Woodside must refer the project afresh to Minister Plibersek.

Notwithstanding that significance must be decided on the basis of a likely net, rather than gross emission increase; the likelihood is that each of the factors said to offset the gross impact does not, on balance, reduce the gross figure significantly, for the following reasons.

Even if gas from Scarborough has a much lower carbon content than the fuel currently consumed by Scarborough’s customers, it is not enough to find that this low carbon gas would displace high carbon fuel for these customers. Rather, to achieve a net reduction, the high carbon fuel must be displaced from the entire market — ie, it must be likely that it will be left in the ground.

This is because, prima facie, if supplies of a fossil fuel are displaced by an alternative, basic economics (the principle that markets ‘clear’) suggests that the displaced fuel will be sold elsewhere, even if this requires a price reduction. This is especially true given that the global market for fossil fuels continues to grow, despite a Covid19-induced dip.

Then there is the policy argument, that because many countries have adopted Paris targets such as ‘net zero by 2050’, emissions from Scarborough will be offset by reductions that are driven by these targets.

Even if countries delivered on such targets in full and the 1.5° goal were achieved, the reef would still be under significant threat and Scarborough would still exacerbate that threat.

However, countries are not on a global trajectory for anything like 1.5°, so the backdrop to Scarborough’s impact is closer to a 3° increase. Worse, many countries have a history of promising more than they deliver, in some cases adopting targets that are little more than aspirations.

Finally, there is the argument that technological change will drive major emissions reduction through the shift to renewables. This is valid in some countries, but, globally, the renewables shift is more than offset by global increases in demand: otherwise, global emissions would not continue to rise.

At the end of the day, unless there is evidence that gas from Scarborough is leading directly to high-carbon fuels being left in the ground, the supposed offsets look rather vague at best, leaving it likely that Scarborough’s net emissions will be similar to its gross emissions.

Where are we headed with this?

I wouldn’t like to predict where the Federal Court will land, but I do think it is possible that the market substitution argument, at least under the EPBC Act, will prove to make little difference.*

If I were the federal government I would deal with cases like this by moving quickly to legislate a comprehensive climate policy regime, not to mention a wider and contemporary environment protection regime as recommended by the 2020 Samuel Review.

I would be thinking that it is better for governments to get on the front foot rather than risk the unpredictable results that can follow when people are driven to litigation by their frustration with outdated or missing laws.

*I know the argument has been rejected by the Land and Environment Court in NSW in the Gloucester Resources case (Rocky Hill). But the Court there had the power to review the decision on the merits, which makes a big difference, for reasons too complicated to explain here.

Banner image: New research shows global warming of 1.5°C relative to pre-industrial levels will be catastrophic for almost all coral reefs – including those once thought of as refuges. Should any new fossil fuel developments be approved in such a time? (Image by Maria Beger)

Our new environment super-department sounds great in theory. But one department for two ministers is risky

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By Peter Burnett

Good news, Australia – the environment is back. Our new government has introduced a new super-department covering climate change, energy, the environment and water.

But while the ministry move sounds great in theory, it’s risky in practice. Having one super-department supporting two ministers – Tanya Plibersek in environment and water, and Chris Bowen for climate change and energy – is likely to stretch the public service too far.

If a policy area is important enough to warrant its own cabinet minister, it also warrants a dedicated secretary and department. This is especially true for the shrunken environment department, which has to rebuild staff and know-how after having over a third of its budget slashed in the early Coalition years.

Supporting two cabinet ministers stretches department secretaries too thinly. It makes it hard for them to engage in the kind of deep policy development we need in such a difficult and fast-moving policy environment.

What are the politics behind this move?

Tanya Plibersek’s appointment last week as minister for the environment and water was the surprise of the new ministerial lineup.

Even if Plibersek’s move from education in opposition to environment in government was a political demotion for her, as some have suggested, placing the environment portfolio in the hands of someone so senior and well-regarded is a boon for the environment.

Having the environment in the broadest sense represented in Cabinet by two experienced and capable ministers is doubly welcome. It signifies a return to the main stage for our ailing natural world after years of relative neglect under the Coalition government.

It also makes good political sense, given the significant electoral gains made by the Greens on Labor’s left flank. While ‘climate’ rather than ‘environment’ was the word on everybody’s lips, other major environmental issues need urgent attention. Threatened species and declining biodiversity are only one disaster or controversy away from high political urgency.

When released at last, the 2021 State of the Environment Report will make environmental bad news public. Former environment minister Sussan Ley sat on the report for five months, leaving it for her successor to release it.

Now comes the avalanche of policy

Both ministers have a packed policy agenda, courtesy of Labor’s last minute commitment to creating an environmental protection agency, as well as responding to the urgent calls for change in the sweeping [2020 review] of Australia’s national environmental law (https://epbcactreview.environment.gov.au/resources/final-report).

That’s not half of it. Bowen is also tasked with delivering the government’s high-profile 43% emissions cuts within eight years, which includes the Rewiring the Nation effort to modernise our grid. He will also lead Australia’s bid to host the world’s climate summit, COP29, in 2024, alongside Pacific countries.

Plibersek also has to tackle major water reforms in the Murray Darling basin and develop new Indigenous heritage laws to respond to the parliamentary inquiry into the destruction of ancient rock art site Juukan Gorge by Rio Tinto.

Can one big department cope with this workload?

Creating a super-department is a bad idea. That’s because the agenda for both ministers is large and challenging. It will be a nightmare job for the department secretary tasked with supporting two ministers. It’s no comfort that the problem will be worse elsewhere, with the infrastructure department supporting four cabinet ministers.

Giving departmental secretaries wide responsibilities crossing lines of ministerial responsibility encourages them to reconcile policy tensions internally rather than putting them up to ministers, as they should.

The tension between large renewable energy projects and threatened species is a prime example of what can go wrong. Last year, environment minister Sussan Ley ruled a $50 billion renewable megaproject in the Pilbara could not proceed because of ‘clearly unacceptable’ impacts on internationally recognised wetlands south of Broome.

Ley’s ‘clearly unacceptable’ finding stopped the project at the first environmental hurdle. That’s despite the fact the very same project was awarded ‘major project’ status by the federal government in 2020.

The problem here is what might have been the right answer on a narrow environmental basis was the wrong answer more broadly.

If Australia is to achieve its potential as a clean energy superpower and as other renewable energy megaprojects move forward, we will need more sophisticated ways of avoiding such conflicts. This will require resolution of deep policy tensions – and that’s best done between ministers rather than between duelling deputy secretaries.

Super-departments also struggle to maintain coherence across the different programs they run. While large departments bring economies of scale, these benefits are more than offset by coordination and culture issues.

An early task for Glyn Davis, the new head of the prime minister’s department, will be to recommend a secretary for this new super-department of climate change, energy, the environment and water. In addition to the ability to absorb a punishing workload, the successful appointee will need high level juggling skills to support Plibersek and Bowen simultaneously.

Ironically, in dividing time between two ministers, she or he will be the least able to accept Plibersek’s call for staff of her new department to be ‘all in’ in turning her decisions into action.

Peter Burnett, Honorary Associate Professor, ANU College of Law, Australian National University

This article is republished from The Conversation under a Creative Commons license. Read the original article.

(Banner image of two king parrots by David Salt)

In the war of the colour chart, where lies the colour of resilience?

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By David Salt

If you were trying to explain Australian politics to an outsider (an alien or an American, for example), you could do worse than falling back on a colour chart synthesis.

Australia has two major political sides, a red team and a blue team.

The red team is called Labor and supposedly places priority on workers and organisations that represent workers. Red might represent the colour of the blood that flows through the veins of the good honest wage earner.

The owners of the businesses that benefits from the toil of these honest workers believe the blood that flows in their veins is blue. Their political allegiance is to the idea of freedom and letting businesses and markets decide on priorities and that government should be kept small. They call themselves Liberals and their colour is blue.

But there are a couple of other teams we need to mention up front.

There’s also a party that claims its mandate is based on standing up for the people of regional Australia – farmers and miners on the whole – these are honest hard-working folk with strong roots in the soil. They’re a little red because they expect government to support them in the regions but more blue because they don’t like being told what to do. They call themselves the National Party, and I’m naming them ‘team brown’ after the dirt they toil over (even though their official colours are green and yellow).

Then there are the greens. No prizes for guessing what they stand for – it’s the environment. They want strong government regulation (or, as the blues and browns say, ‘pesky government interference’) on climate change, pollution and conservation. They are more aligned with the reds than the blues, and the browns largely hate them because they represent ‘government telling them what to do’.

Every three years Australians vote for someone in their region to represent them in our national government. These candidates largely come from the red or the blue team (though the blues have been in coalition with the browns for as long as anyone can remember) and Australia has always been ruled by the red team or the blue/brown team.

What else do you need to know? Well, you should be aware that all adult Australians have to vote (no discretion there) and that we have an independent organization that oversees the electoral process (the Australian Electoral Commission). This is important because Australians trust our electoral process and always accept the people’s verdict (I’m looking at you Mr Trump). Whenever the people choose the other side to govern, there is always a smooth transition of power. This is something the nation is very proud of.

Business as usual

Why am I telling you all this? Well, if you’re from another planet (or the US) you might be a little confused at how we’re responding to multiple environmental crises engulfing Australia (and the world).

Our coral reefs are bleaching, forest biomes are burning and low land communities are flooding. Climate change is exacting a horrible and growing toll on our nation (and the poor are copping it the worst), we have a very strong scientific consensus on what we need to do to address the problem (ie, reduce greenhouse emissions) yet our national government (which until last week was blue/brown) has been steadfast in its opposition to do anything about climate change. Many of its members are in strong denial that climate change is even real.

Whenever a proposal comes up to make a change to our economy to reduce greenhouse emissions, the government scares people about the cost of that change (without reflecting on the larger cost of not changing). This is exactly what happened at our last national election (in 2019, the same year of the Black Summer that scorched Australia’s eastern seaboard).

Over the last three years since then, our blue/brown government has done little about climate change while at the same time ignoring growing calls for an independent commission on integrity, turning its back on the pleas of our First Nations people for voice in our constitution, and largely ignoring cries from women everywhere for respect and agency.

Over the past six weeks the country has been dragged through an election campaign in which the blue/brown party claimed they should be re elected because the world was becoming too dangerous to trust anyone but them to lead us forward. It’s a powerful message that always favours the incumbent. They said they had a plan though few people knew what it was beyond keeping things the same.

The red party also they said they had a plan – a plan for change. But because they got beaten up at the last election over the cost of change, at this election the change they detailed was very small (a small-target campaign).

This left many people very depressed because both parties were saying the world was increasingly dangerous and that they had a plan, but both plans didn’t involve much change.

A new colour?

In many cities around Australia there were many people who normally voted blue who no longer trusted the blue party because they seemed to be ignoring growing calls for action on climate change and greater integrity in government. It seemed the blues were hostage to the demands of the right-wing conservative browns (the junior partners in government).

These disenchanted blue voters were reluctant to vote red but even more loathe to support the greens (often portrayed as fanatical and uncompromising in their zeal for environmental reform). However, they were damned if they were going to support the blues anymore.

Independent candidates (people with no specific colour preference) have long been a component of Australia’s political scene but they appear spasmodically and normally campaign on a limited range of issues in specific regions. They occasionally exert considerable influence when they hold the balance of power but they usually disappear after one or two terms. They normally get in because they have good grass-root connections with the communities they seek to represent.

In the lead up to our most recent election, however, something unprecedented occurred. High profile community-based independents stood for office in a range of blue seats in cities across Australia. They were almost all women with strong professional backgrounds, and would likely have been blue supporters in the past.

They became known as the teal independents, teal* being a shade lying between blue and green. And they proved phenomenally successful at the weekend’s elections knocking off some of the blue’s most high-profile candidates including the former treasurer (who had been touted as the next blue leader).

The colour of resilience is teal

Indeed, the ‘teal revolution’, as some have dubbed it, may go down in Australian political history as the day our political leaders finally heard the message resonating through the broader community: we want real action on climate change, and we want integrity in our political leadership. No more lies, denial and corruption; no more kow-towing to the fossil-fuel industry (listening to political donors rather than electors).

Though the counting still continues, it looks like Labor (the reds) will have a workable majority and can form government in its own right. However, they know they can’t ignore the broader community’s wishes on environmental reform and integrity. If they do they risk a similar revolt as with the teals (maybe a rufous rebellion). The Australian electorate now knows it can’t be ignored.

The blues, being overly influenced by the browns, thought they could ignore the wishes of electorate. They thought they could trounce the reds while laughing at the greens because they believed a sufficiently frightened public would shy away from change, stick with a status quo no matter how inadequate. The teals appeared as if from nowhere and proved them dead wrong.

Our now defeated former Prime Minister, a man without a moral compass and a prolific liar (according to his own party colleagues), often spoke about making Australia more resilient. By bowing to the browns he prevented meaningful change, and actually helped make the country less resilient. Perversely in terms of what he intended, his actions directly contributed to the rise of the teals and the destruction of his own party.

Resilience is all about changing as the world changes.

If resilience has a colour then it has to be teal.

*Teal is a cyan-green color. Its name comes from that of a bird — the Eurasian teal (Anas crecca) — which presents a similarly colored stripe on its head.

Banner image: The Eurasian teal (Anas crecca) from Mangaon, Raigad, Maharashtra, India. (Photograph by Shantanu Kuveskar. This file is licensed under the Creative Commons Attribution-Share Alike 4.0 International license.)

It’s election time! For one party the environment is not a priority. For the other, it’s not something to talk about.

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By Peter Burnett

With Australia heading to the polls at the end of this week, what better time to look at election policies on the environment, especially those of the two parties capable of forming government: a re-elected Coalition, or Labor?

Climate gets the lion’s share of environmental attention these days, so I’ll focus on the rest, but I can’t resist a couple of quick comments on climate before doing so.

First, both major parties have committed to net zero by 2050, but Labor is more ambitious in the short term, with a 2030 target of 43% (adopted in 2021), compared to the Coalition’s target of 26-28% (adopted in 2015).

Second, the issue is not just the target but whether there’s a credible path to achieving it. I’ve already criticised the government for tabling a plan for its new 2050 target without any new policy to go with it.

As for Labor, they don’t have any measures for getting to zero by 2050 either, though they have supported their ‘43% by 2030’ target with policies and modelling.

Whoever wins government, they’ll need to get cracking on post-2030 policy, as 2030 is less than eight years away and climate is by far the biggest challenge for governments since World War II.

As to environmental policy on everything else, it boils down to ‘not a focus for us’ vs ‘not telling’. Let me explain.

The Coalition on the Environment

The Coalition at least has a policy, but that’s the high water mark of my compliments.

Climate aside, three things stand out.

First, for a party that likes to claim the mantle of being the best economic managers, they are heavily into creative accounting. A number of the claims in the Coalition policy contain big numbers, such as the claim that they are investing $6 billion for threatened species and other living things, but they puff these up by counting past spending and/or projecting a long way forward.

I’ve criticised this practice as ‘disingenuous bundling’. Certainly, one of the headline policies, ‘$1 billion for the Reef’ represents little more than business as usual.

The second stand-out theme is making a virtue of necessity. The Coalition has a reasonable policy on waste and recycling. And they quote the Prime Minister himself as arguing that ‘It’s our waste, it’s our responsibility’.

The back-story however is that we used to ship a lot of domestic waste to China, but they banned this from 2018. In reality, we had no choice but to fix the problem.

Again, the Coalition policy recites money spent on bushfire recovery and flood response, but practically speaking they had no choice in this. Hardly inspiring.

Finally, they tell you that they have put another $100 million into the Environment Restoration Fund. I’ve criticised this elsewhere as pork-barrelling.

All in all, if you ignore the pork, necessary disaster-response and the smoke and mirrors, it’s pretty much an empty box, though freshly wrapped.

Labor on the Environment

While the Coalition reached for the wrapping paper, Labor have gone for ‘keeping mum’.

Pursuing a small-target strategy overall, but forced by circumstance to engage with the high political risks of climate policy, Labor have gambled that they can run dead on the rest.

They have released a few topic-specific policies. Labor will double the number of participants in the successful Indigenous Rangers program and spend $200m on the Great Barrier Reef, on top of the Coalition’s $1 billion by 2030. They’ll also spend $200m on up to 100 grants for urban rivers and catchments.

A little more significantly, Labor’s Saving Native Species Program commits $224.5 million over four years to preparing overdue species recovery plans and investing in the conservation of threatened species, especially the koala.

Like the Coalition, however, Labor likes to make virtue out of necessity: more than 10% of this money goes to fighting Yellow Crazy Ants in Cairns and Townsville.

All of this is at the margins.

But on the big issues … silence.

What of the 2020 review of Australia’s national environmental law by Professor Graham Samuel? What about the ongoing decline identified by successive State-of-the-Environment reports?

Labor’s website cheerily tells us that: ‘Labor will commit to a suite of environmental policies that continues Labor’s legacy on the environment, and we’ll have more to say about this over the coming weeks’ (my emphasis).

Well, if the ‘coming weeks’ refers to the election campaign, time’s up.

And the winner is …

If you are looking to the major parties for vision and boldness on environmental policy then, with the possible exception of Labor’s climate policy, you’re destined for disappointment.

The Greens are always strong on environment, and have some well-founded hopes of winning an extra seat or two, so they are a definite option for environmentally-concerned voters.

With minority government a real possibility and the major parties reluctant to associate with the Greens, it’s the ‘Teal’ and other climate-focused independents like David Pocock in the ACT (collectively, ‘Teals’ for short) who look to have the most potential to up the ante on the environment.

Standing mostly in well-off inner-city seats and blending liberal blue with environmental green, the Teals may find themselves holding the balance of power, at least in the Senate and possibly in the House of Representatives as well. While climate is clearly their focus, I’d expect the Teals to push strong environmental policy generally, if the chance comes their way.

Teal anyone?

Banner image: Look closely at what both major parties are offering on the Environment and there’s nothing to get excited over. (Image by yokewee from Pixabay)

International declarations and other environmental promises: A game for those who talk but don’t walk

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By Peter Burnett

When is an international declaration on the environment worth the paper it’s printed on? Don’t worry, it’s a rhetorical question. Based on the way the Australian Government treats them, they’re not worth anything. Consider what we’ve recently said about forests and climate change.

When it comes to forests, Australia stands with Bolsonaro

I was a little taken aback when, at last November’s climate summit in Glasgow, Australia joined 140 other countries in signing the Glasgow Declaration on Forests and Land Use.

The declaration pledges to halt and reverse forest loss and land degradation by 2030 and the signatories represent 85% of the globe’s forested land.

Surely this was great news!

Unfortunately, of course, it was too good to be true. Countries were playing the old environmental promises game again. All you have to do is sign up — no action required.

Even President Bolsonaro of Brazil had signed! The same Bolsonaro who has been widely condemned for accelerating the destruction of the Brazilian Amazon.

As a declaration, this document is not legally binding. It’s also full of weasel words like ‘sustainable land use’ and ‘opportunities … to accelerate action’.

And, of course, even if you cut down all the trees, it’s not deforestation … as long as you plant new ones!

Are they any more serious at the OECD?

More recently, environment ministers from OECD countries had one of their five-yearly (or so) pow-wows in Paris at the end of March. Australia’s minister Sussan Ley was one of the vice-chairs and of course the OECD Secretary-General, Australia’s own Mathias Cormann, was there to advise ministers in their deliberations.

The top agenda topics were climate and plastics and the meeting yielded a formal outcome, the OECD Declaration on a Resilient and Healthy Environment for All.

Now we’ll see some action, I thought — unlike the UN, the OECD regards ministerial declarations as legal instruments, having a ‘solemn character’, though in this case the declaration is not actually legally binding.

So, I thought (naively) if this is a solemn commitment they’ll have to act!

The declaration committed OECD countries to net-zero by 2050, ‘including through accelerated action in this critical decade with a view to keeping the limit of a 1.5°C temperature increase within reach’ (my emphasis).

You might think this would require Australia to increase the ambition of its ‘26-28% by 2030’ target, but I’m sure you’d be wrong.

The Australian Government would probably cite later words from the statement that ‘we underscore the need to pursue collective action’ to achieve the Paris Agreement. We’ll step up if everyone else does so first.

Alternatively, we might announce ‘accelerated action’ in December 2029. I’m sure the lawyers will come up with something to get us off the hook.

Ministers also committed to ‘strengthen our efforts to align COVID-19 recovery plans with environmental and climate goals to build a green, inclusive and resilient recovery for all.’ If you thought this would require Australia to increase its policy ambition and pursue a green recovery, again I think you would be wrong.

I expect the government would say (without hint of irony or embarrassment), that its stimulus efforts were already ‘green, inclusive and resilient’. Green is, after all, in the eye of the beholder.

Plastic promises in Paris

Finally, ministers at the OECD pow wow committed to developing ‘comprehensive and coherent life cycle approaches to tackle plastic pollution’ and ‘promoting robust engagement in the intergovernmental negotiating committee to develop an internationally legally binding instrument on plastic pollution with the ambition of completing negotiations by the end of 2024’.

Australia is on more solid ground here, as it has some genuine policy ambition on plastics. These were forced on it when China stopped all imports of plastics and other waste in 2018, including ours, but … it’s the result that counts!

And no doubt Australia is happy enough to commit to an objective of negotiating a convention on plastics over the next nearly-three years. After all, it’s only a process commitment.

Much of the rest of the declaration consisted of pious incantations or directions to the OECD bureaucracy to do more work on policy tools, data-gathering and the like. No problems here — apart from a few dollars to support the OECD machine, this work creates no obligations.

In terms of putting ‘walk’ over ‘talk’ (ie, actions over words), Paris rates just a little ahead of Glasgow. I’d give the Paris declaration 2 out of 10 and Glasgow 1.

Postcard from Mathias: feeling expansive in Paris

A couple of other things jumped out at me in reading the record of the OECD meeting in Paris.

How strange it is to my Australian ears to hear Mathias Cormann abandon his ‘tell-em-nothing, concede nothing’ Australian political style, in favour of spruiking the international environmental cause, even though he did so in very-OECD economistic terms. I’ve emphasised the interesting words:

Secretary-General, Mr. Mathias Cormann, stressed the importance of a whole-of-government, whole-of-society approach to meeting the climate challenge. He set out key thoughts in this regard including the need to mainstream climate change across all areas, step up efforts on implementation, to secure real net reductions in emissions, mobilise investment and realign global flows towards the transition, the need for reliable data and monitoring, and the importance of enhancing efforts towards adaptation and managing losses and damages.

Esperanto anyone?

Of greater interest, the environment ministers had lunch with a group of business leaders. Emmanuel Faber, Chair of the International Sustainability Standards Board, and former CEO of Danone, a multinational food corporation based in Paris, stressed the need for:

a common language to understand the climate impact of portfolios, underlining this pivotal moment in developing such a common language that can guide decisions to align finance with environmental goals and avoid greenwashing (emphasis added)

We have such a common language in the form of the System of Environmental Economic Accounting (SEEA), adopted in 2012 and enhanced with a standard for Ecosystem Accounting in 2021.

In my view, what we really need is for governments to learn to speak it! (Reminded me of Esperanto — great idea, but a little lacking on the uptake)

While my main point has been to decry the dominance of talking over walking, in the case of environmental accounting, talking is walking!

Banner image: Vaunting ambitions declared in Paris amount to little back home.
(Image by GAIMARD at Pixabay)

Last Chance Quiz – the Australian Government’s (non) response to queries on the environment

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By Peter Burnett

With an election called, you might want to inform your vote with the latest on the Australian environment and what the Government is doing about it. Unfortunately, the Government says: ‘Tough!’

As we all know, a federal election has been called for 21 May 2022. The Australian Government is now in ‘caretaker mode’, meaning it must refrain from major decisions during the campaign.

Before going into caretaker mode, it’s not uncommon for governments to make lots of major decisions immediately beforehand. This year, the vehicle for many of those big decisions was the Budget, handed down in late March.

For reasons likely connected with an internal Liberal Party brawl over candidates, the election was not called immediately after the Budget was handed down, but two weeks later. This meant that the business of Parliament continued, including ‘Budget Estimates’, in which Senators quiz officials about Budget initiatives and other things.

This turned Budget Estimates into a ‘last chance quiz’ about sensitive issues, including the environment.

Here are a few ‘highlights’ or, more correctly, lowlights from this ‘quiz’. I think they demonstrate well what priority the Government places on environmental issues (as well as good governance).

More budget honesty please

One of the political tricks of recent times has been to inflate budget numbers by announcing programs for longer and longer periods.

Once upon a time, spending was only for the coming year. Then it was three, then four. Four years is now the official period of the ‘forward estimates’ or ‘forwards’ as you sometimes hear politicians say.

But now politicians are making announcements for eight or nine years down the line. These commitments are un-legislated and go way beyond the life of the government, and are thus very rubbery.

For example, I wrote recently about the Budget announcement of $1 billion for the Great Barrier Reef amounting to little more than ‘steady as she goes’, once averaged over its announced nine year timeframe.

Now we have, supposedly, $22 billion for clean energy technology. Not only does this figure stretch to 2030, twice the four-year estimates period, but officials told Senators in Estimates that much of it covered a continuation of ‘business-as-usual’ activity for bodies such as the Clean Energy Finance Corporation and CSIRO.

Breathtakingly, one ‘key investment’, listed under the $22 billion clean energy spend, is the same $1 billion I mentioned above for the Great Barrier Reef!

The explanation was that this $1 billion was in fact a climate investment, not ‘clean energy’. Either way, as Manuel from Fawlty Towers would have said, ‘Que?

So, how much in the Budget actually represented ‘new money’ for increased policy ambition as part of a pre-election commitment?

Officials couldn’t say — they took it on notice. As a result, I can’t tell you! (And don’t hold your breath that any answers will be provided before the election.)

Clearly the Howard Government’s statutory ‘Charter of Budget Honesty’ needs an overhaul!

State of the Environment Report

We learned that his five-yearly report has around 1200 pages, cost $6m and was sent to the Minister last December. Unfortunately, we also learned that the law gives her until a date after the May election to table the report, and there are no indications that she will table it early.

So, if you want to inform your vote with the latest environmental trends, don’t look for the State of the Environment report!

Environment Restoration Fund

In my last blog I raised concerns that the $100m newly allocated to this fund would be used for pork barrelling, because that’s what happened to the previous round of $100m in 2019.

The new revelations in Estimates were that the Minister was yet to adopt any grant guidelines for this new round, but that priorities would include threatened and migratory species; coastal waterways; pest animals and weeds; and greening cities, with an emphasis on east coast flood recovery.

My concerns remain. In the absence of guidelines, this money could, once again, be allocated through election commitments, without scientific advice and without competitive applications. They got away with it last time, so why not do it again?

Threatened species at warp speed

The Auditor-General found recently that only 2% of recovery plans were completed on time; 207 remain overdue and there is no integrated process for monitoring implementation.

It turned out that in responding to the Auditor-General, the department had committed to ‘track and publish the implementation of priority actions in conservation advice and recovery plans for all 100 priority species under the Threatened Species Strategy 2021-30 by 2026’.

That’s right. In another four years, we’ll be able to see what’s going on for 100 out of nearly 2000 threatened species (ie, 5%). Now that’s what I call warp speed!!

More disingenuous bundling

The Budget headline for threatened species was $170m over four years.

But $100m of that is the second-round Restoration Fund discussed above, which could be given away as pork, while $53 million, previously announced, is for koalas, of which only $20m reserved for large scale restoration and animal health — I think there is a real chance that much of the money will be dissipated as small grants.

Another element of the claimed spend on threatened species is a new $20 million Queen’s Jubilee Program, providing grants for locals to plant trees, such as ‘large shade trees in a school or civic centre’ under the I can see Carnaby’s cockatoos and orange-bellied parrots lining up now!

The real gain for threatened species, on a proper science-based prioritisation? As usual, it’s hard to know, but it could be a few million a year. I’d say ‘chicken feed’, but chickens are not a threatened species.

What prospects for change?

You can see from my cynicism that I think this government tinkers with the environment while inflating and conflating its efforts so as to deliberately mislead the people. The ‘last chance quiz’ poked a few holes in this carefully contrived environment Budget narrative, but this doesn’t mean we are any wiser about what’s going on.

But I just can’t leave things on such a depressing note.

Would a Labor government be any better? Possibly, though they have yet to announce their policies and their general ‘small target’ approach holds little prospect of the the sort of bold (and expensive) action we need to halt the decline of Nature.

Perhaps the best prospects for the environment lie in a hung Parliament – the ‘teal Independents’ have been very strong on climate change and it’s hard not to think their attitude would spill into environmental policy more generally.

Hope springs eternal!

Banner image: Image by Mietzekatze at Pixabay.

Federal budget: $160 million for nature may deliver only pork and a fudge

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By Peter Burnett

Treasurer Josh Frydenberg’s cash-splash budget has a firm eye on the upcoming federal election. In the environment portfolio, two spending measures are worth scrutinising closely.

First is a A$100 million round of the Environment Restoration Fund – one of several grants programs awarded through ministerial discretion which has been found to favour marginal and at-risk electorates.

Second is $62 million for up to ten so-called “bioregional plans” in regions prioritised for development. Environment Minister Sussan Ley has presented the measure as environmental law reform, but I argue it’s a political play dressed as reform.

It’s been more than a year since Graeme Samuel’s independent review of Australia’s environment law confirmed nature on this continent is in deep trouble. It called for a comprehensive overhaul – not the politically motivated tinkering delivered on Tuesday night.

A big barrel of pork?

The Environment Restoration Fund gives money to community groups for activities such as protecting threatened and migratory species, addressing erosion and water quality, and cleaning up waste.

The first $100 million round was established before the 2019 election. In March 2020 it emerged in Senate Estimates that the vast majority had been pre-committed in election announcements. In other words, it was essentially a pork-barelling exercise.

The grants reportedly had no eligibility guidelines and were given largely to projects chosen and announced as campaign promises – and mostly in seats held or targeted by the Coalition.

Given this appalling precedent, the allocation of grants under the second round of the fund must be watched closely in the coming election campaign.

A tricky Senate bypass

Australia’s primary federal environment law is known as the Environmental Protection and Biodiversity Conservation (EPBC) Act.

Under provisions not used before, the need for EPBC Act approval of developments such as dams or mines can be switched off if the development complies with a so-called “bioregional plan”.

Bioregions are geographic areas that share landscape attributes, such as the semi-arid shrublands of the Pilbara.

In theory, bioregional plans deliver twin benefits. They remove the need for federal sign-off — a state approval will do the job – and so eliminate duplication. And national environmental interests are maintained, because state approvals must comply with the plans, which are backed by federal law.

But the government’s record strongly suggests it’s interested only in the first of these benefits.

Since the Samuel review was handed down, the government has largely sought only to remove so-called “green tape” – by streamlining environmental laws and reducing delays in project approvals.

Bills to advance these efforts have been stuck in the Senate. Now, the government has opted to fund bioregional plans which, as an existing mechanism, avoid Senate involvement.

Meanwhile, the government has barely acted on the myriad other problems Samuel identified in his review of the law, releasing only a detail-light “reform pathway”.

A rod for the government’s back?

Ironically, bioregional plans may create more problems for the government than they solves.

First, the surveys needed to prepare the plans are likely to spotlight the regional manifestations of broad environmental problems, such as biodiversity loss.

And the EPBC Act invites the environment minister to respond to such problems in the resulting plans. This implies spelling out new investments or protections – challenging for the government given its low policy ambition.

The federal government would also need to find state or territory governments willing to align themselves with its environmental politics, as well as its policy.

Of the two Coalition state governments, New South Wales’ is significantly more green than the Morrison government, while Tasmania is not home to a major development push.

Western Australia’s Labor government has been keen to work with Morrison on streamlining approvals, but fudging environmental protections is another thing altogether. And Labor governments, with a traditionally more eco-conscious voter base, are particularly vulnerable to criticism from environment groups.

The government may fudge the bioregional plans so they look good on paper, but don’t pose too many hurdles for development. Such a fudge may be necessary to fulfil Morrison’s obligations to the Liberals’ coalition partner, the Nationals.

Tuesday’s budget contained more than $21 billion for regional development such as dams, roads and mines – presumably their reward for the Nationals’ support of the government’s net-zero target.

Bioregional plans containing strict environmental protections could constrain or even strangle some of these developments.

But on the other hand, the government may be vulnerable to court challenges if it seeks to push through bioregional plans containing only vague environmental protection.

For a government of limited environmental ambition bioregional plans represent more a political gamble than a reform.

Morrison has clearly rejected the safer option of asking Ley to bring forward a comprehensive response to the Samuel review, casting streamlining as part of a wider agenda.

Such a reform would have better Senate prospects and created room to negotiate.

Morrison could also have promised to reintroduce the streamlining bills after the election. But he must have concluded that the measure has no better chance of getting through the next Senate than this one.

What price fundamental reform?

If the government successfully fudges bioregional plans, the result would be watered-down national environmental protections.

This would run completely counter to the key message of the Samuel review, that to shy away from fundamental law reforms:

“is to accept the continued decline of our iconic places and the extinction of our most threatened plants, animals and ecosystems”.

Clearly, good reform is too expensive — politically as well as fiscally — for this budget.

Peter Burnett, Honorary Associate Professor, ANU College of Law, Australian National University

This article is republished from The Conversation under a Creative Commons license. Read the original article.

Banner image: Feed them pork, win their votes. (Image by BeckyTregear @ Pixabay)