Last week’s debate in the Australian Parliament on the new government’s Climate Change Bill generated a surprising level of debate on a side issue, the possible inclusion of a ‘climate trigger’ in Australia’s most significant environmental law, the Environment Protection and Biodiversity Conservation Act 1999 (EPBC Act).
So much so that I made it the subject of my last blog, in which I argued that we mostly didn’t need a climate trigger, because it would double up on the ‘safeguard mechanism’ that sets individual baselines for major carbon-emitting facilities like steelworks, and then reduces that baseline over time.
The exception was for actions that would generate significant carbon emissions but weren’t ‘major facilities’, which mostly means major land-clearing.
I’ve changed my mind. In light of last week’s debate, I now think we should have both a climate trigger and a safeguard mechanism, on the proviso that they must dovetail with each other.
Let me explain. As the government is committed to the safeguard mechanism but somewhat skeptical about a climate trigger, I’ll start with the former.
We don’t yet have the full detail of what the government is proposing — it has promised to release a discussion paper towards the end of August. We do know, however, from statements by climate minister Chris Bowen and from Labour’s election policy, that the gist of the proposal is to keep the existing legal machinery while reducing facility emissions baselines progressively to net zero by 2050.
The safeguard mechanism will apply to the 215 existing major emitters, together with any new facilities emitting more than 100,000 tonnes CO2-e per annum.
A climate trigger in the EPBC Act would prohibit developments likely to emit more than a certain volume of greenhouse gases per annum (lets say 100,000 tonnes), without first undertaking an environmental impact assessment (EIA) and obtaining a development approval from the environment minister. Such an approval might simply require the developer to use the best available emissions technology at the time of construction, with no follow-on requirements.
Alternatively, much like the safeguard mechanism, it could require reducing emissions from an initial baseline. It might even allow emissions credits to the traded with other such facilities, although this could be complicated in practice.
Dovetailing a safeguard with a trigger
If used together, these two mechanisms would be seeking to occupy much the same regulatory space. That’s why I argued that a climate trigger should be limited to actions that are not caught by the safeguard mechanism, such as land clearing.
However, there are some benefits that are better delivered by one or other of the two mechanisms.
On the other hand, the safeguard mechanism is designed to facilitate emissions trading, which is something not readily available under the more traditional regulatory mechanism of an EPBC approval.
This leads me to suggest that we can have the best of both, provided we ensure that the two mechanisms dovetail with each other and so avoid duplication.
It could work like this.
First, there would be a whole-of-government policy specifying that major emitters would be subject to a facility-specific emissions cap, set by reference to the lowest feasible emissions from existing technology. This cap would then decline to net zero by 2050.
Second, under the climate trigger, the environment minister would limit herself to assessing the likely emissions under best low-emission technology and setting that level as the initial cap. She would do so knowing that her approval of the project would, in turn, trigger the safeguard mechanism.
In the end, we would have the benefit of both mechanisms but no duplication — just a hand-off from one regulator to the other.
Some might object to this ‘dovetail’ approach on the basis that Professor Graeme Samuel recommended against a climate trigger in his review of the EPBC Act in 2020.
This objection lacks substance, for two reasons. First the review did not extend to policy matters such as a climate trigger, but was confined to the operation of the existing Act.
Second, while Professor Samuel did note that previous governments had chosen not to use a climate trigger, an outcome he said he agreed with, he left it at that, without making any arguments of substance against a climate trigger.
‘Both/and’, not ‘either/or’
This debate has quite some way to run —the government will not be responding to the Samuel review until late in 2022 and will not bring forward legislation to amend or replace the EPBC Act until 2023.
However, it is clear already that there will be a major episode of brinkmanship played out between the government and the Australian Greens over the climate trigger. The Greens are determined to push for ‘no new fossil fuel projects’ while the government are equally determined not to ban these projects unilaterally, on the ground that if we act alone, other countries will take up the slack as a suppliers of fossil fuels.
If we stick with the ‘either/or’ approach currently on the table, then we can expect high-stakes brinkmanship in the Senate next year, as the unstoppable force of the Greens’ passion for avoiding climate disaster collides with the immovable object of a government that knows that its future depends on occupying the centre lane on the political highway.
Banner image: Some want a ‘carbon trigger’ to stop the development of big emitting facilities. Others reckon a ‘safeguard mechanism’ is enough to constrain emissions. Maybe we can dovetail them and get the best of both. (Image by catazul from Pixabay)
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.
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.
So Australia has a new Labor government, having secured its win on the back of a ‘small target’ strategy that meant saying as little as possible about substantive policy (including on the environment).
That’s nice for them, but what now for the environment itself, especially since Labor’s intended environment minister, Terri Butler, lost her seat to a Green?
Before I get to that, a little more on the environmental implications of the election results.
Despite both major parties largely ignoring the environment (see my last blog), it was quite a ‘green’ election, with the Greens picking up three inner-city Brisbane seats in the lower house to add to their base of just one, while also jumping from nine to 12 seats in the Senate, a 33% increase.
More than this, there was a ‘Teal wave’ in the lower house, with five supposedly-safe ‘blue-ribbon’ Liberal Party seats falling to pro-climate-change ‘Teal’ Independents, joining Zali Steggall and several others to create a loose pro-climate cross-bench ginger group of up to nine.
Meanwhile, the Senate, with the addition of Canberra-based Independent David Pocock, now has a pro-climate majority.
Together these changes represent a major shift in favour of environmental action. (I’m going to assume that the pro-climate MPs will be generally pro-environment, although the degree to which this is ‘on the record’ varies between these MPs.)
While it’s hard to divine the reasons for this shift, I’ll go with conventional wisdom for the moment, which is that our recent horror years of drought, fire, smoke, storm and flood have brought climate change in particular into the homes many millions of Australians, literally.
Policy on the record
Until just before the election, Labor had well-developed policies on climate and water, but a small grab-bag of policies on the rest. At the last minute, Labor released a policy on environmental law reform, in the context of the previous government’s failure to table a full response to the 2020 Samuel Review of Australia’s national environmental law, the Environment Protection and Biodiversity Conservation (EPBC) Act.
Labor promised a full response to the Samuel Review, but in the meantime says they will establish an independent Environment Protection Agency. The agency will have two roles, one concerned with gathering and analysing environmental information and the other focused on compliance with environmental regulation and assurance that environmental standards are being met.
Labor highlights that, as well as being a custodian for national environmental information, the EPA’s data division will take a ‘leadership role’ in environmental accounting. This is a welcome and overdue development for a decision tool that remains largely unrecognised.
Policy off the record
While Labor lifted its game at the last minute with its environmental law reform policy, they can hardly be said to be environmental-policy high performers.
Their ‘43% by 2030’ climate target, while a significant advance on the ‘26 to 28%’ target of the outgoing government, is still much criticised as falling well short of what the Paris target of ‘well below 2 degrees’ requires.
And the environmental law reform commitment remains, for the most part, a commitment to come up with answers rather than an answer in itself. Once the new government starts work on fleshing its policy out, they will find that the job requires much more than just a streamlining of environmental regulation and some extra money for a resource-starved department.
The really big challenges are a lack of clarity and ambition about environmental outcomes and a major under-investment in environmental restoration.
While the Paris targets and our ‘Net Zero by 2050’ commitments provide a clear policy objective for climate policy, the same cannot be said for other areas, biodiversity in particular.
And our data is so poor that even the experts find it hard to tell us what a policy to halt biodiversity decline would look like on the ground.
Our history of policy failure to date suggests strongly that if reversing biodiversity decline is to be the goal, major institutional change and major investment in environmental restoration will be needed, far beyond anything seen to date.
And the new minister?
The good news is that Tanya Plibersek has been appointed environment minister in the new government. Announcing her appointment, the Prime Minister said Ms Plibersek had a long-term interest in the environment and would be ‘outstanding in that area … particularly in the area of the Murray Darling Basin Plan … it’s very important that that actually get delivered.’
Ms Plibersek is a very experienced and capable operator with previous ministerial experience. She is often spoken of as a future leader and has political heft.
The bad news is that her challenge is not simply to be a political success in the role, nor even to deliver real progress on the ground. The real challenge is to lay the foundations for ongoing success, against a backdrop in which the goal-posts, thanks to climate change, keep moving further away.
Tanya Plibersek will need all her considerable skill and experience, and a significant dollop of Parliamentary and stakeholder goodwill, if she is to have any prospect of meeting this daunting challenge.
We wish her luck.
Banner image: The Australian numbat, now listed as Endangered. Widespread clearing of their habitat and predation by feral animals have led to their steep decline. Arresting the collapse of our biodiversity is just of several major environmental challenges Australia’s new government needs to tackle. (Image by Seashalia Gibb from Pixabay)
Why do simplistic three-word slogans have such cut through? Why does incumbency give a political party such an advantage? Why does a simple lie so often trump an inconvenient and complex truth?
The answers to these questions (and so many other mysteries surrounding the way election campaigns are run) lies in the way we think. And one of the finest minds alive today who has devoted much of his life on trying to understand how we think is a psychologist named Daniel Kahneman.
Kahneman, a Nobel Laureate in Economics, distilled the essence of his research on how we think in a book called ‘Thinking, fast and slow*’. It’s around 500 pages long and quite dense in parts as Kahneman explains how he and colleagues** rigorously tested many assumptions on how humans think and make decisions. There’s a lot of detail presented, and I’m not saying it’s an easy book to take in; however, if you have any interest in how our inherent biases distort our decision-making processes then this is a must read.
In a nutshell, Kahneman describes how ‘fast thinking’ is what we do intuitively, almost thinking without thinking. ‘Slow thinking’ is when we analyse the information we’re processing. It takes time (hence it’s ‘slow’) and, most importantly, it takes considerable mental effort. Slow thinking helps us correct the biases inherent in our fast thinking but because slow thinking is hard, our brain often gives up on it because it takes too much effort. When this happens, we default back to fast thinking usually without even being aware of it; which is fine a lot of the time (like when you’re fending off a sabre tooth tiger) but can often lead to sub optimal (and sometimes awful) outcomes.
In the words of Kahneman
How does this relate to the way politicians prosecute their election campaigns? I’ll let Kahneman spell out some of the consequences.
On the ‘illusion of understanding’, Kahneman says (p201 in Thinking, fast and slow):
“It is easier to construct a coherent story when you know little, when there are fewer pieces to fit into the puzzle. Our comforting conviction that the world makes sense rests on a secure foundation: our almost unlimited ability to ignore our ignorance.”
My take: Politicians capable of telling a ‘coherent’ narrative do better than scientists attempting to explain to you a complex story with all the details.
On the ‘illusion of validity’ (p209):
“The amount of evidence and its quality do not count for much, because poor evidence can make a very good story. For some of our most important beliefs we have no evidence at all, except that people we love and trust hold these beliefs. Considering how little we know, the confidence we have in our beliefs is preposterous.”
My take: We make many of our most important decisions based on what other people believe, people we trust, not on what we know. Scientists always believe more evidence and quality evidence will win the day (probably because the people they trust, other scientists, think the same way).
On ‘confidence’ (p212):
“Confidence is a feeling, which reflects the coherence of the information and the cognitive ease of processing it. It is wise to take admissions of uncertainty seriously, but declarations of high confidence mainly tell you that an individual has constructed a coherent story in his mind, not necessarily that the story is true.”
My take: Don’t confuse confidence with validity. Don’t believe, as most scientists do, that information with high uncertainty is always discounted.
On ‘the engine of capitalism’ (p262):
“Optimism is highly valued, socially and in the market; people and firms reward the providers of dangerously misleading information more than they reward truth tellers. One of the lessons of the financial crisis that led to the Great Recession [GFC] is that there are periods in which competition, among experts and among organisations, creates powerful forces that favor a collective blindness to risk and uncertainty.”
My take: Some people (in some circumstances) can fool all of the people some of the time.
On being a successful scientist (p264):
“I have always believed that scientific research is another domain where a form of optimism is essential to success: I have yet to meet a successful scientist who lacks the ability to exaggerate the importance of what he or she is doing, and I believe that someone who lacks a delusional sense of significance will wilt in the face of repeated experiences of multiple small failures and rare successes, the fate of most researchers.”
My take: Scientists are human, too.
On not seeing flaws in the tools you use (p277):
“I call it theory-induced blindness: once you have accepted a theory and used it as a tool in your thinking, it is extraordinarily difficult to notice its flaws. If you come upon an observation that does not seem to fit the model, you assume that there must be a perfectly good explanation that you are somehow missing. You give the theory the benefit of the doubt, trusting the community of experts who have accepted it.
…disbelieving is hard work, and System 2 [thinking slow] is easily tired.”
My take: When your only tool is a hammer, all you see are nails.
On ‘reform’ and attempting to change the status quo (p305):
“A biologist observed that “when a territory holder is challenged by a rival, the owner almost always wins the contest”…
…In human affairs, the same simple rule explains much of what happens when institutions attempt to reform themselves…
As initially conceived, plans for reform almost always produce many winners and some losers while achieving an overall improvement. If the affected parties have any political influence, however, potential losers will be more active and determined than potential winners; the outcome will be biased in their favour and inevitably more expensive and less effective than initially planned.
Loss aversion is a powerful conservative force that favors minimal changes from the status quo in the lives of both institutions and individuals. This conservatism helps keep us stable in our neighbourhood, our marriage, and our job; it is the gravitational force that holds our life together near the reference point.”
My take: Incumbent conservative governments have all the advantages when it comes elections involving reform and complex policy positions. Reformers wanting to shift the status quo have a very hard task because of the power of ‘loss aversion’. Also, a concentrated force beats a dissipated force, even if the dissipated force is greater overall.
On dealing with rare events (p333)
“When it comes to rare probabilities, our mind is not designed to get things quite right. For the residents of a planet that may be exposed to events no one has yet experienced, this is not good news.”
My take: Human thinking is not well adapted to deal with climate breakdown or biodiversity loss.
On good decision making (p418)
“They [decision makers] will make better choices when they trust their critics to be sophisticated and fair, and when they expect their decisions to be judged by how it was made, not only by how it turned out.”
My take: Good decisions are not just about good outcomes. Decisions should be judged as much by the process by which they are made, and that people take better decisions when they think they are accountable. (This quote, by the way, is the final line in the book.)
Kahneman’s quotes aren’t pithy generalised reflections that came to him as he was thinking about thinking. They are direct conclusions of multiple rigorous trials in which subjects were given options to choose between in which they needed to assess risk and possible outcomes.
And the research isn’t new or unreviewed. Some of his findings on cognitive biases and decision heuristics (the mental rules-of-thumb that often guide our decision making) go back some 50 years. Kahneman is recognised as one of the world’s leading behavioural psychologists, was awarded a Nobel Prize in economics in 2002 for his work on prospect theory (pretty good for someone who had never studied economics), and his work has been a cornerstone to the developing field of behavioural economics.
Of course, all of this is also central to marketing and politics: how do you communicate (sell) information to score a sale or bag a vote? You don’t do it by providing every detail available, like many scientists try to do. This simply switches people off.
Rather, you build a simple coherent narrative that you can ‘sell’ with confidence. You scare people about their losses if the status quo is threatened (as will happen if you ‘vote for the opposition’), and you frame your arguments for maximum salience to your target group.
‘Good marketing’ is about exploiting people’s cognitive biases and not overloading them with detail they can’t absorb. ‘Good politics’ is about simplistic three-word slogans and scaring voters into believing that change means they will lose.
Elections are all about good marketing and good politics
Good marketing and good politics often add up to poor policy, short-term thinking and vulnerability in a climate ravaged world.
Fossil fuel corporations (and conservative politicians in their thrall) have been manipulating community sentiment for decades, stoking scepticism and denialism about complex science, and preventing the world from responding to an existential threat.
Kahneman didn’t give them the blueprint for how this is done, but his science has revealed just how easy it can be to steer and nudge a person’s behaviour and beliefs if you understand how inherently biased our thinking can be.
The solution? There is no pill (red or blue) that can help people do more slow thinking and better reflect on the biases inherent in their fast thinking. As Kahneman has demonstrated throughout his career, humans simply think the way that they think. However, society has created many institutions that provide checks and balances on the way marketeers sell products and politicians acquire and use power. The integrity of these institutions is the bridge between day-to-day politics and good policy outcomes.
Australia is currently in election mode with a federal election only days away. Political integrity and climate change are a major concern to most Australians. Despite this, the incumbent conservative government has long resisted the establishment of an independent integrity commission to test the many claims of corruption that have been levelled at it over the years. And this government has been seen as dragging the chain on climate action (and lying about what they are actually doing).
And yet, our Prime Minister, a man who has been described as lacking a moral compass and being a serial liar (by his own colleagues!), is a masterful marketeer. Nick named ‘Scotty from Marketing’, maybe he should be retitled Australia’s ‘Prime Marketeer’. He knows how to spin a simple and coherent story and stick to it. He knows how to scare people about the costs of change, and divide communities by playing on people’s prejudices and fears. Using these skills he pulled off ‘a miracle’ victory at the last election.
Thinking fast has served him well. Now, for a meaningful response to multiple environmental emergencies, it’s time for a little reflection; a little more thinking slow is called for.
To be honest, I had never heard of Daniel Kahneman 15 years ago. But then I began working for a group of environmental decision scientists and his name constantly came up. Kahneman was the leading light who illuminated why our internal decision-making processes were so flawed, so biased. He was the ‘god’ who (along with his friend Amos Tversky**) had published the landmark paper ‘Judgement under uncertainty: heuristics and biases’ in 1974 in the journal Science, one of the most widely read papers of all time I was told. Well, I tried reading it and found it too technical and dense to take in.
Then, in 2011, Kahneman published Thinking, fast and slow. Someone described it as a 500-page version of his 1974 paper. Not a great sales pitch for me, I’m afraid.
However, just prior to the corona pandemic, I spied Thinking, fast and slow on a friend’s bookshelf and asked to borrow it. It took over a year before I found the courage to open it (it was my big pandemic read), six months to wade through it, and another three months before I’ve attempted to write down why I found its wisdom so compelling.
So, for me, my journey with Kahneman has been a long one. And now that I have finished this blog, I can return Thinking, fast and slow to my friend Michael Vardon, who loaned it to me many moons ago. Thanks Michael, sorry about the delay.
** Amos Tversky
If I’ve interested you at all in Daniel Kahneman but possibly put you off reading Thinking, fast and slow (because who has time to read a 500-page horse pill of information on cognitive biases) then I highly recommend another book that covers the same ground but from a more personal framing. This one is about Daniel Kahneman and his life-long colleague and closest friend, Amos Tversky. The book is called The Undoing Project and is written by Michael Lewis (who also wrote The Big Short and Moneyball, both about biases in the way we think and assess risk). It tells the story of Kahneman and Tversky, both Israeli psychologists, and how together they unpicked the many ways our thinking is biased without us even being aware of it. Not only does The Undoing Project give an excellent overview of the research described in greater detail by Kahneman in Thinking, fast and slow, it also paints a touching portrait of the friendship between two of the world’s finest minds. Tversky tragically died of cancer in 1996.
In an effort to distract myself from Australia’s putrid federal election campaign, I’ve taken to watching disaster films, specifically Chernobyl and Deepwater Horizon. Unfortunately, because they are both based on real-life events, they only remind me about the failings of our current political leaders. Both films carry powerful messages on the importance of good governance and the consequences of taking it for granted.
The award-winning series Chernobyl was created by HBO and went to air in 2019. It tells the events surrounding the explosion in Reactor 4 at the nuclear power plant at Chernobyl in 1986. It’s a story of nuclear nightmare, self-sacrifice, heroism and cascading tragedy. Underpinning the disaster is a tale of greed, corruption and power in which an ossified Soviet empire censored science that had years earlier revealed that the nuclear reactor design was flawed, and a hierarchy that only wanted good news, a tight focus on production targets and punished anyone who pointed out when things were going wrong.
The power plant was under-resourced, poorly equipped, and badly managed. When the Reactor 4 blew up, the local emergency response was totally unprepared and ignorant about what to do in a nuclear accident. The consequences were horrific for the attending fireman and locals watching on.
The inadequate local response was then matched by the broader Soviet response of denial and cover up, but the scale of the disaster meant it couldn’t be ignored as radioactive debris sprayed over Europe.
It was the worst and most expensive nuclear accident the world has ever seen, and many scholars believe it directly contributed the collapse of the Soviet empire a few years later.
The HBO series brilliantly captures the unfolding horror of the disaster following it from the moment of the accident through to the investigation much later in which scientists do their best to reveal the rottenness of the system that allowed the catastrophe to occur. The message is not well received and the whistle blowers pay an enormous price for their courage.
If anyone thinks that major disasters like this are the preserve of sclerotic dictatorships like the Soviet Union, you’re kidding yourself. A couple of months before the melt down at Chernobyl in 1986, the US experienced its own catastrophic failure when the Space Shuttle Challenger blew itself to smithereens 73 seconds after lift off. Seven crew died as a result and the whole Space Shuttle program was suspended for years. Some suggest the program never really recovered.
And what caused this disaster?
The Space Shuttle was touted as the most complex machine ever put together by humans, but what destroyed the Challenger was the failure of simple rubber O-ring seal on the shuttle’s solid rocket booster. Except it wasn’t really a failure of an O-ring so much as a failure of governance. Engineers had known for many years the O-rings didn’t work very well in extreme cold conditions, such as were experienced at the time of launch, and even recommended against launching at that time.
But the mission, which had already gone through long and costly delays, was under enormous time pressures and somehow the concerns of the engineers, who sat at the bottom of the management hierarchy, were not conveyed to the decision makers at the top of the tree. The decision to go ahead with the launch was made, and the rest is history. (HBO really should make a docu-drama on this.)
Now maybe you’re thinking big disasters like these only occur when state-controlled hierarchies are in charge. If that’s the case, I recommend you see the 2016 film Deepwater Horizon which recounts the origins of the largest marine oil spill in the history of the petroleum industry.
The spill occurred when the Deepwater Horizon, an ocean oil drilling rig operated by BP, caught fire when high-pressure methane gas from the well expanded into the marine riser and rose into the drilling rig. There it ignited and exploded, engulfing the platform, killing 11 workers and setting off the largest environmental disaster in American history.
The film contends the disaster was the direct result of BP officials rushing through safety tests and ignoring the ageing infrastructure on board the drill rig. As with Chernobyl and Challenger, engineers were ignored, and production timetables were prioritized over safety and due diligence.
Though this was an accident in the commercial sector, it can also be said that government oversight and environmental protection and monitoring were found wanting.
When disaster strikes we are too often absorbed by the heat and light of the event itself. When we look past that, the real problem is almost always a failure in integrity around the way in which the system is being governed.
Good governance, transparency and accountability would have prevented Chernobyl, Challenger and Deepwater Horizon from ever becoming disasters. And if we want to prevent future disasters of this type, this is where we should be looking.
Which is why I got depressed when watching these movies because it just got me thinking about the failing integrity of leaders such as Johnson, Trump, Putin and our own Scott Morrison. These leaders have been actively eroding the integrity of the institutions that allow us to trust our governments and the processes they run. Without this integrity we won’t hear the warnings of the ‘engineers’ that the systems we depend upon have vulnerabilities and may be heading for collapse.
One excellent example of this in Australia is the recent revelations by Professor Andrew Macintosh that our system of carbon credits lacks integrity – that Australian Carbon Credit Units are being awarded to projects that are not actually capturing the carbon they claim. Macintosh, one of the architects of the system, claims the problem is poor governance, that the same people awarding the credits are doing the monitoring and the selling of the carbon credits. A market with integrity would allow for transparency, accountability and independent validation of what’s being bought and sold but our carbon market does not have these features.
The problem is that these carbon credits are being purchased by fossil fuel producers to offset their own carbon emissions. If, as Macintosh contends, 70-80% of the carbon credits do not represent captured carbon, then they’re not actually offsetting anything, but fossil fuel companies still have a green light to keep pumping out carbon emissions.
Now, maybe you can’t see Chernobyl or Deepwater Horizon in this story. However, our government has simply denied Macintosh’s claims, even though he has considerable empirical evidence supporting his case (and our government isn’t releasing the information that Macintosh has asked to be made public). Our government says the carbon market is fine, they won’t fix it, and our carbon credits are in high demand. Our performance on climate change is beyond reproach, they say (even though we trail the developed world in reducing carbon emissions). It’s like the Chernobyl operators ignoring warnings on the basis that the project is too good (too big) to fail; and they’ll only be punished if they say something.
In our government’s admonishment of ‘engineer’ Macintosh’s attempts to blow the whistle on this broken carbon market I hear the echoes of Soviet administrators and BP corporates claiming ‘push on, there’s nothing to see here’.
But the system is not good, carbon emissions are rising, people and species are dying from climate-enhanced weather extremes. And in response, our political leaders tell us not to worry, the systems they have in place will protect us. But those systems have no integrity!
Then, one more straw is added to the camel’s back…
Banner image: A scene from the HBO series Chernobyl in which military officers spray the accident site to kill all life in order to prevent it spreading radioactive contamination. The ‘fallout’ from this nuclear accident is still being experienced today.
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.
The Federal Minister for the Environment does not have a duty of care to protect young people from the harms of climate change. This was the unanimous finding of the Federal Court earlier this week. It was a finding that left high school students crying, legal scholars frowning and Sussan Ley, the Federal Minister for the Environment, beaming.
Given this, the big question I want answered is, if not the Minister for the Environment, then where (and with whom) does the ‘duty of care’ lie?
Much has been made about the Court decision and why the judges overturned an earlier decision that the Minister did have a duty of care when approving fossil fuel developments. (And for one of the best analyses of the legal case around this issue I’d point you to the excellent Sustainability Bite Does a ‘duty of care’ to future children make any difference to environmental approvals? written by my colleague Peter Burnett; who, incidentally, predicted exactly this outcome.)
At the end of the day the three judges each ruled in favour of the Environment Minister who, in her appeal against the original finding, contended that the stated duty should not be imposed on the Minister. However, each judge had their own reasoning for why this should be.
One judge said that climate change is a matter for government, not the courts. The ‘duty’ involves “questions of policy (scientific, economic, social, industrial and political) […] unsuitable for the Judicial branch to resolve”
Another said there wasn’t a direct link between minister’s power to approve the coal mine and the effect this would have on the children.
And the third said the EPBC Act (under which the fossil fuel development was being approved and which the Minister is responsible for) doesn’t create a duty-of-care relationship between the Minister and the children. He added that establishing a standard of care isn’t feasible and that it’s not currently foreseeable that approving the coal mine extension would cause the children personal injury, as the law is understood.
If not the Minister, then who?
All well and good, and I expect this makes much sense to all the lawyers out there. But, for me, it begs the question: if not the Minister, then who should hold the duty of care?
If we are allowing a development today that is harming the people of tomorrow, then shouldn’t someone be responsible for allowing this development to proceed?
Of course, the people of tomorrow include the youth of today. Some of these young people are profoundly worried about what they are seeing around them, about what the science is telling us.
For God’s sake, it’s not even being worried about gloomy forecasts; society is actually experiencing the horror of climate change as we speak. Climate enhanced flooding is wiping away families, businesses, hopes and histories up and down Australia’s east coast. Climate-enhanced wildfires are scorching communities, forest biomes and wildlife with a ferocity and at a scale never before witnessed. We’re losing our coral reefs, our wetlands and woodlands. We’re trashing our natural heritage and our prospects for the future.
Others are exploring different pathways to get the ‘grown ups’ to do the right thing for the future they will inherit; and one of these pathways involves testing our laws about who is taking responsibility for developments (like new coal mines and gas projects) that will only be adding to the already catastrophic level of carbon emissions our species are producing.
Where to look
I don’t appreciate the detail of the law on this but, like the students at the centre of this current court case, it seems to me that our political representative who has been made Minister for the Environment is a logical place to aim.
But, as the courts have ruled, this is a question of policy, not law! This is for the politicians to fix up.
Our political leaders are refusing to engage with climate change on any meaningful level. They’re happy to fight about over-the-horizon net zero targets that they will never be responsible for. They pay lip service to the mounting scientific evidence while happily turning a blind eye to the growing pile of misinformation and corporate malfeasance seeking to distract us from any measure to constrain (or reduce) our carbon economy.
If not the Environment Minister, then who? Our Prime Minister or the Minister for Emissions? Their track record for lies and integrity is even worse than our Environment Minister’s.
Is it the responsibility of our corporate leaders and billionaires? Seems their short-term interests are tied to unbounded economic growth, so I doubt we’ll see much effort here.
Or should we look to the world government to impose effective and just sustainability limits on us all. Sorry, I forgot; there’s no such thing as a world government (though conspiracy theorists like to pretend that one exists).
There are, of course, international agreements that sovereign nations can enter into on how we care for the environment and the future. Think Ramsar Convention, Convention on Biological Diversity, Kyoto Protocol and the Paris Agreement; Australia has signed up to all of them, and then failed to meet our commitments on any of them, just like all other nations.
At the end of the day, whether you’re thinking (or acting) globally or locally, no-one is actually responsible for tomorrow. ‘Duty of care’ for tomorrow is more a ‘vibe*’ than an ‘actionable’ item.
If duty of care on climate change is a question of policy more than a question of law then our whole polity is failing us and is in need of transformation. Who’s up for some serious reform?
*‘Vibe’ is a particularly Australian term arising from the cult classic 1999 movie The Castle in which a lawyer, Dennis Denuto, struggles to articulate to the judge why his clients, the Kerrigans, should be allowed to keep their home and not be compulsorily acquired for an airport development. Denuto says: “In summing up: it’s the Constitution, it’s Mabo, it’s the vibe and… no, that’s it. It’s the vibe.”
The latest Senate Environment Committee ‘Estimates’ hearings
By Peter Burnett
Regular readers will know that I have written several times about what emerges from Senate Estimates. Estimates is a somewhat esoteric proceeding in the Australian Parliament (and some others) in which politicians ask questions of (mostly) bureaucrats about proposed allocations of money to spending programs.
Well, that’s the theory anyway. In practice, questions get asked about any official activity, right down to the micro level of when the official sent a document to a minister.
In return, officials, who are often the meat in the sandwich here, respond with lots of detail but work hard not to reveal anything of substance in their answers. It’s a bit of a game but sometimes the stakes can be quite high.
Despite having long left the bureaucracy, I have retained my interest in this ritual form of combat, partly for what it reveals about the art of public administration but, more relevantly here, for the little gems of information that spill forth about environmental programs.
As a participant, I was focused on surviving the stressful experience of a public grilling from the politicians. As an observer, I now have much broader aspirations to seeing the accountability mechanisms (for that is what the Senate Estimates is supposed to be) of Parliament work.
Unfortunately, they usually do not.
The most recent Environment Estimates were held in February. I’ve chosen several issues of interest below, one to illustrate the failings of Estimates as an accountability mechanism and another as a vehicle for arguing the need for improved accountability.
Dragging it out (that’s the Australian Way)
I sympathise with frustrated politicians trying to get straight answers to legitimate questions. To them, Estimates must feel like bare-handed barrel-fishing: it’s easy enough to get close, but landing a catch is something different entirely.
My example from the February Estimates concerns the modelling commissioned by the government to support its Long-Term Emissions Reduction Plan — that’s the plan to implement the government’s commitment to achieve net-zero emissions by 2050, sanctimoniously subtitled in the ‘popular’ version of the plan as ‘The Australian Way’.
(Recall that the decision to commit to net zero by 2050 caused great division between the Liberal and National parties in the Coalition, and that the Nationals were said to have secured significant concessions from the PM in return for signing on, which the PM reluctantly felt he had to do, because Jo Biden and others were doing it.)
The story revealed over several Estimates hearings was that work on ‘the plan’ had started in February 2021.
The finalised plan was released on 26 October 2021, in the lead-up to CoP 26 in Glasgow, but the supporting modelling, which would have helped critics to ask penetrating questions, was not released until 12 November, after CoP 26 had finished.
Why the delay? asked the Senator. She complained that back in the Budget Estimates, in May, officials wouldn’t even confirm that they were doing the modelling. Then, at Supplementary Estimates, held just before the Plan was adopted, the government made a claim of ‘public interest immunity’ in relation to the modelling, meaning that it would not be released on the ground that it was the subject of current Cabinet deliberation.
Now, in February this year, officials were saying that they hadn’t released the modelling promptly, after the government announced the Plan, because they didn’t have the capacity to produce both the plan and the modelling for publication. In particular, officials said they needed more time to make the public version of the modelling ‘accessible’.
The questioning Senator was naturally suspicious. Had the Minister himself taken the decision about when to release the modelling? ‘I’d have to take it on notice to specifically check if the minister himself gave any particular direction’ replied the official, thus avoiding dropping the minister in the proverbial and further drawing out the accountability process.
You can see why this sequence of events would frustrate the Senate’s attempts to scrutinise a major decision.
The underlying answer to legitimate questions was that it is never the right time to ask for politically-sensitive information, until the moment chosen by the government to release it — that’s the Australian Way!
In this case the government had to be much more forthcoming because the questions related directly to the purpose of Estimates, which is to scrutinise proposed new expenditure.
So, officials provided detail, for example, that the funding would be allocated to the environment department and to the Great Barrier Reef Marine Park Authority, but that no further money would be channelled through the Great Barrier Reef Foundation, a private body through which the government had channelled, in 2017, Australia’s largest and most controversial-ever grant of $443m.
Questioners also probed the governments’ decision to announce nine years’ funding, as this was far beyond the standard four year forward forward-estimates period.
Senators also elicited from officials that ‘the new money effectively dovetails with the decline in the existing funding commitments’ — ie, that much of this ‘new’ or ‘additional’ money was simply an extension of existing spending, which was declining, not because the job was done, but because governments often allocate funding for arbitrary periods.
Looking at these answers, it seems to me that the government started with the idea that they needed to be seen to be spending big to stave off the threat of an ‘In Danger’ listing for the Reef, and simply took the current spending that was about to lapse, decided to continue it, and just kept adding more forward years until they got to the politically credible figure of $1 billion.
That’s why nine (years) was the magic number, though of course officials didn’t say so! Interestingly, if they had used the standard four-year period, on a pro-rata basis the funding would have been $444m — almost identical to the controversial Reef Foundation grant!
A coincidence like that would never have done!
Unfortunately, however, the questions stopped short of asking whether any of the money was truly ‘additional’, ie, representing increased effort overall.
Once allowance is made for the fact that most of the money just extends existing budgets or programs, and for inflation, would there be anything left to represent a real increase? It appears not, although we can’t be sure.
And even if there were a real increase for the Reef, would that increase come at the cost of a reduction in environmental expenditure elsewhere?
In other words, does any of this ‘additional’ money reflect any additional effort for the environment? Or is it just a transfer from one environmental program to another
In theory, it would be possible to ask a series of questions that would force an answer this question.
In practice, obfuscation in official documents, limited time in Estimates and limited resources available to Senators to formulate a set of questions sufficiently comprehensive to force the answer, make such an exercise impractical.
A better way?
As an exercise in bare-handed barrel-fishing, Estimates is hardly satisfactory. While Parliament has other accountability mechanisms, most of these have their own problems.
And when a mechanism does work well, as we’ve seen recently with successful reviews of grant programs by that pesky Auditor General, the government counters by cutting his budget!
One solution to strengthen accountability would be — wait for it — to publish proper accounts! I’m talking about detailed accounts at the program level, which logically should form part of a comprehensive set of environmental accounts.
To date, the commitment of Australian governments to improved accountability, and to environmental accounts themselves, has been very limited, but … we live in hope!
Banner image: Senate Estimates is like barrel fishing with your hands. Lots of targets but most are slippery and impossible to hold on to. (Image by David Salt)
A big pledge for a big problem is no solution without integrity
By David Salt
“So, Minister, how exactly did you arrive at this one-billion-dollar price tag for saving the Great Barrier Reef?” asked the newly appointed Director of Government Probity.
“Well Ms DGP, as you will see from the extensive paperwork we’ve submitted, the figure of a billion dollars is based on extensive scientific, social and economic research compiled by the good officers of our well-resourced Department for the Environment.
“It’s a lot of money but what price do you put on saving a priceless piece of World Heritage; not to mention the economic return derived from people enjoying the Reef.
“Our scientists have pin pointed exactly the threats assailing this coral wonderland; our economists have worked up a precise list of actions we need to take to address these threats – costed down to the last dollar; and our social scientists have undertaken rigorous process of community engagement to ensure that the people on and around the Reef know what the situation is, and are ready to put their backs to the wheel to ensure the Great Barrier Reef will be there in all its glory for them, their children and grandchildren.
“It all brings a tear to your eye,” said the Minister (and, indeed, her eyes were tearing up). “But with something this important, it’s worth all the effort. It is, of course, simply the Australian Way!”
“Yes, thank you Minister,” responded the DGP. “Well done. It seems you and your Department have really done the due diligence on this one. The Reef is in good hands! The world thanks you.”
The Australian Way
Of course, there’s nothing much real in the above exchange. There is no Director (or agency) of Government Probity; the Department of Environment (subsumed into the bigger Department of Agriculture, Water and Environment) is underfunded and overworked; and scientists do know what is killing the Great Barrier Reef – it’s climate change – but the Government is not listening to them. Our Prime Minister has described this approach to climate change as “the Australian Way”; but the world is not thanking Australia for adopting this path.
For all that, the Federal Coalition Government has pledged $1 billion dollars towards saving the Great Barrier Reef, one of the single biggest investments on an ecosystem in Australia’s history; surely, even if it’s only been done as a sweetener in the run up to a Federal election – that’s a good thing, right?
Most of that money ($579.9m) won’t go on the Reef itself but will be dedicated to water quality projects on land, the adjoining catchments from which water runs off onto the reef. Declining water quality has long been identified as a major threat to reef health. In 2016 the Queensland Government contracted economists to estimate how much it would cost to meet water quality targets through actions such as changing land management, improving irrigation and repairing erosion. Their best estimate was that it would cost $8.2billion over 10 years (that’s $820 million per year).
The Government’s promise of $570 million over 9 years (or an average of $63.3 million per year) suddenly doesn’t look so grand.
The next largest slice of the billion dollars – $252.9m – will go towards reef management and conservation. Again, split that over 9 years and multiple institutions caring for the Reef and it’s not the boon the headline number suggests.
But it doesn’t really matter anyway because the best science says the reef is cooked if we don’t do anything about rising carbon emissions.
Indeed, the science on this is firming. In 2018, the Intergovernmental Panel on Climate Change predicted that 1.5°C of global warming would cause between 70 and 90% of the world’s coral reefs to disappear. In research just out, it’s been found that with 1.5°C of warming, which the world is predicted to reach in the early 2030s without drastic action to limit greenhouse gas emissions, 99% of the world’s reefs will experience heatwaves that are too frequent for them to recover.
None of the billion dollars promised to ‘fix’ the Reef is going towards reducing emissions. Analysts say Australia’s approach is aligned with heating closer to 3°C. The Australian Government is not introducing any new policies to tackle carbon emissions in the near term and claims that new (unspecified) technologies will deliver net zero emissions in 30 years’ time. Prime Minister Morrison describes this as the Australian Way.
A billion dollars of cover
At the same time, the Government is trumpeting its billion-dollar investment on saving the Reef to UNESCO in a bid to keep the Great Barrier Reef off the World Heritage ‘in-danger’ list. A fortnight ago the Government released a report on why the Reef should be kept off this list.
The Morrison government argued every single World Heritage site can be considered in danger from climate change, and the Great Barrier Reef shouldn’t be singled out for a UNESCO status downgrade.
On the release of that report, Environment Minister Sussan Ley puzzlingly observed: “Reefs around the world are under pressure from warming oceans and in the face of that the Morrison government’s leadership in reef management and reef science is second to none.”
So, what are we to make of that? The Government acknowledges that climate change and warming oceans are killing our coral reefs – everywhere, not just around Australia – but chooses to do very little about it.
At the same time they are happy to commit a billion dollars to a cause they know is futile; maybe that’s why they don’t really care that this level of investment is patently inadequate to achieve even the outcomes on water quality they are targeting.
It’s enough to make you blush with embarrassment (and shed a tear of shame).
The real problem
The real problem at the heart of this treacherous affair is a total lack of probity. There is no transparency or accountability around these decisions; no connection between science, economics and funding pledges; no integrity behind government claims and action.
This is a billion-dollar bad idea but the greatest shame in this whole affair is that there is no mechanism (no independent office of government integrity) to hold our political leaders to account.
No, Minister. The Reef is not in good hands! And the world will not be thanking you now or in the future.
Banner image: The Great Barrier Reef is in big trouble. Will a big billion dollars make a difference? Not with an absence of probity. (Image by Sarah_Ackerman under the Creative CommonsAttribution 2.0)
Do you think our political leaders, our representatives, owe the children of the future, our children, a duty of care? I think most people would.
But what does that actually mean in practice?
Should a duty of care apply if the political leader is wearing a second hat as a regulator? What if the law the regulator is applying says nothing about a duty of care?
Our legal system is grappling with this issue right now.
Last year, in a case known as Sharma v Minister for the Environment, the Federal Court of Australia found that the environment minister, in her statutory capacity as a regulator under the Environment Protection and Biodiversity Conservation Act 1999 (EPBC Act), owed Australian children a common law (ie, non-statutory) duty of care not to injure them by approving a development that would exacerbate climate change.
At the time, the minister was considering making a statutory decision to approve an extension to the Vickery coal mine in NSW.
Is it okay to develop a coal mine if it results in increased emissions?
As I wrote in an earlier blog, the implication of the case for decisions under the EPBC Act (and other regulatory laws) was that regulators, when considering whether to approve a development, must now turn their mind to an additional mandatory consideration, the likelihood of harm, at least to children, if not others.
In that discussion, I argued that the decision was legally incorrect and would likely be overturned on appeal. In fact, an appeal has been heard, though not yet decided.
In the meantime, the original decision stands and must be applied — ie, regulators must consider the likelihood of future harm to children from a development.
What does this mean in practice? Well, documents released recently under freedom of information (FoI) laws have revealed how the environment minister was advised by her department concerning this new-found duty of care.
The documents concern another coal mine extension, this time by Glencore of its Mangoola mine in the NSW Hunter Valley.
For completeness, the Court also found that human safety is a mandatory relevant consideration under the EPBC Act, including when affected by the emission of greenhouse gases (GHG).
Rather than this being part of a duty of care, the Court said this implication was found in the ‘subject-matter, scope and purpose’ of the EPBC Act.
As a result, if a proposed development in fact posed a ‘real risk’ to human safety of Australians (not just children) the Minister should give ‘at least elevated weight’ to the need to avoid that risk.
This part of the decision may be less vulnerable on appeal because it results from the Court’s interpretation of the Act, rather than the (more radical) application of a duty of care from outside the Act.
Requirements on Minister: EPBC Act plus duty of care
The EPBC Act contains a fairly standard process for granting environmental approvals, based on considering an environmental impact assessment (EIA) and applying various statutory criteria.
Although the EPBC Act does not extend directly to climate impacts, it does cover indirect impacts on things that it does proect, eg threatened species. And GHG can have an indirect impact on threatened species, by changing the climate.
So, it is common under the EPBC Act to consider climate impacts from projects that are large GHG emitters, like coal mines.
Consistent with the Sharma decision, when environment minister Sussan Ley considered the Mangoola mine, she considered, in addition to the usual statutory matters, her duty of care to avoid causing harm to Australian children, as a result of GHG emissions from both the mine itself (scope 1 and 2) and the coal it would produce (scope 3).
Minister’s decision on climate impacts of mine
The minister decided that, even having regard both to her additional duty of care to children and the implied statutory duty to consider human safety, it was not necessary to refuse the mine extension, or to impose additional climate-related conditions.
While these duties might have been new, it turned out that considering those duties simply took the minister down the same path of reasoning that she and her predecessors had used before when considering indirect climate impacts.
This reasoning has been validated by earlier court decisions and it goes like this:
First, if the mine didn’t go ahead, potential customers would simply burn coal from other mines, with no overall difference for the climate (the market substitution argument).
Second, if this is wrong, and the mine does increase GHG emissions, national and international policies, such as ‘nationally determined contributions’ under the Paris Agreement, would prevent overall emission increases, because countries have agreed to phase coal down (the climate policy argument).
And Ley added a new argument: the coal phase down would be reinforced by private company commitments: mine proponent Glencore had itself adopted a target of reducing total global emissions from its operations (scope 1, 2 and 3) by 50% by 2035, reducing to net-zero by 2050.
Just more boxes to tick? Is that it?
So, at the end of the day, even considering a new duty to children and giving ‘elevated’ weight to human safety consistent with the Sharma decision, the minister ended up at the same place as earlier decisions.
The mine could go ahead because it would not increase emissions, or, alternatively, any increase would be ‘extremely small’.
Plus, of course, there were social and economic benefits that made approval, on balance, ‘appropriate’.
It turned out that the duty of care to children and human safety were just two more boxes to tick.
So, does it matter then whether the government wins or loses the Sharma appeal if the result is the same?
You might think not, but I can however see two reasons why it matters.
It does matter
First, Sharma found the environment minister had a duty of care. While this duty might not change environmental outcomes now, if the duty is upheld it will invite compensation claims in future decades, based on harm generated by approval decisions taken now.
This creates risks for government.
The second implication is environmental and political. If the duty of care to children remains, this will confirm a higher profile for the climate implications of development decisions. I think this increases the chances that someone will take the ‘market substitution’ and ‘climate policy’ arguments to the High Court.
I know I told you that these arguments had already been accepted in earlier Federal Court decisions. But I think there are grounds for challenging this.
Why? I’ll tell you in another blog, but a High Court appeal would put climate change issues before the highest court in the land. And that’s not something to be sneezed at.
The implications of this? If the children win again in court, I think the government will move in Parliament to legislate these legal and political risks away.
So the children will probably lose even if they win.
Banner image: On the one hand coal gives us ‘cheap’ energy. On the other, it emits a lot of GHG likely to harm future generations of children. (Image by Pavlofox @ Pixabay).