Administrative law: like the Curate’s egg, boring in parts, but environmentally useful nonetheless

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By Peter Burnett

“Off with her head”, said the Queen of Hearts to Alice in Wonderland, when Alice couldn’t read the values of some face-down playing cards. The word of the Queen of Hearts was law. Not a good law, actually.

In the real world, ‘Bad King John’ of England (1166-1216) wanted his word to be law as well. While he might not have been quite so capricious as the Queen of Hearts, he was arbitrary and unjust enough to drive his barons to rebellion.

And that rebellion was settled by a set of rules called the Magna Carta in 1215.

While the Magna Carta is best known for establishing the mother of Parliaments and guaranteeing trial by jury (at least for ‘free men’), it also contained a number of guarantees against arbitrary action by the King and his officials — in other words, by government.

For example, King John guaranteed not to take anyone’s corn or chattels without payment and not to appoint incompetent or corrupt judges and officials.

As a result, the Magna Carta is also known for establishing the principle that government is not above the law and thus cannot behave in arbitrary and unjust ways.

This is the foundational principle of administrative law.

Now some believe ‘law’ is dry and boring, with the very mention of administrative law enough to send you to sleep.

I’m here to convince you that administrative law is far too important to be boring, though I will concede that it can be dry and tedious in the detail. In his book The Rule of Law, one of the great modern British judges, (Lord) Tom Bingham, gives the example par excellence of a tedious regulation:

    Any reference in these regulations to a regulation is a reference to a regulation contained in these regulations. (!!)

And administrative law certainly has failings, as we shall see.

What has this got to do with the environment?

How is this relevant to the environment?

Anyone who has followed environmental issues through the courts will know that many court cases concerning the environment turn not on environment-specific principles (such as precaution or intergenerational equity), but on general principles of administrative law.

One such principle is that decision-makers should not be biased, or even appear biased.

A recent, if extreme, example of an environmental case involving that principle concerned the proposed extension to New Acland Coal’s mine near Oakey, Queensland.

This case has a history of appeals and re-hearings too long to recount, but in brief, an environmental assessment was done and a draft approval issued. However, because there were objections raised, the case was referred to the Land Court of Queensland, which had the role of making non-binding recommendations to the Minister for Natural Resources.

The key point for our purposes is that when the case eventually reached the High Court, they sent it back to the Queensland Land Court for a third hearing. This unusual outcome was required because the first and second hearings were affected by the appearance of bias, rendering both hearings invalid.

In the first hearing, the judge had apparently been deeply offended by a newspaper article on the mine extension, raising the possibility that his subsequent decision to recommend against approving the development might have been biased by his taking offence, while the reasoning of the judge in the second hearing became ‘infected’ by the apprehended bias of the first because she adopted some of his findings (at the direction of one of the intermediate appeal courts).

The High Court’s decision was hailed by the Environmental Defender’s Office as a major victory, and in one sense it is. High standards of decision-making have been upheld.

Yet the case also highlights the process-heavy downside of administrative law. Even if the third hearing is finalised without further appeal, there will have been a total of seven court hearings and a decisional timeframe spanning nine years and counting.

And we still don’t know whether the mine will be approved!

Of course, this is grist to the mill to industry and politicians running a campaign against ‘lawfare and green tape’, but the delays are more due to poor regulatory design than to administrative law itself.

A new line of attack

One feature of administrative law is that although its substantive principles are relatively constant, governments provide new ways to apply those principles by passing a constant stream of new laws.

Take for example the current challenge by the Environment Centre of the Northern Territory (ECNT) to the $21 million grant by Minister for Resources Keith Pitt to Imperial Oil and Gas, to expedite gas exploration activities in the Beetaloo Basin in the Northern Territory.

In the past, it has not been easy to bring legal challenges to government decisions to give money away. Some recent High Court decisions and federal legislation have changed this.

For example, since 2013, federal government grants must comply with the Public Governance, Performance and Accountability Act, which requires, among other things, that the minister making the grant be ‘satisfied, after making reasonable inquiries, that the expenditure would be a proper use of [public] money’.

A ‘proper’ use of money is defined in the Act as one that is ‘efficient, effective, economical and ethical’.

ECNT’s argument is that Minister Pitt committed an (administrative) error of law by failing to make enquiries about the climate risks associated with the development of the Beetaloo Basin, as well as the economic risks of that development as the world transitions to a zero carbon economy.

As far as I can tell this is the first time this line of attack has been used, although the Beechworth Lawn Tennis Club, which is challenging the ‘Sports Rorts’ grants made by the Australian Sports Commission, may well be using similar arguments. (Did I hear you mention ‘car parks’ as well?)

Boring in parts, but definitely useful

So, there you have it. While aspects of administrative law can be boring, overall it is far too useful in securing good environmental decisions to be ignored.

It does however have its problems, as the tortured and scandalously expensive chain of decisions in the New Acland Coal case show.

As a result, one of the challenges of environmental reform, beyond saving the environment of course, is to design decision-making processes that are not only fair and effective, but efficient as well.

Image by Gordon Johnson from Pixabay

Three experts and a politician in a sandpit – who has the real insight on climate policy in a connected society

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By David Salt

The scientist, the economist and the lawyer

There were three people at the bar – a scientist, a lawyer and an economist – arguing about how to solve the intractable problem of sustainability, and specifically climate change.

The scientist said we just need to know a little more, remove some of the uncertainty around our knowledge on the earth system (and what humans are doing to it), and then society would fall behind the overwhelming scientific consensus that something needs to happen.

The lawyer said we just need better laws proscribing what’s acceptable and what’s not. Better rules are the solution.

The economist said we just need to provide the right incentives for people to begin doing the right thing and discourage them from doing the wrong thing. Bad behaviour, said the economist, should simply cost more making it ‘common sense’ to be sustainable.

Enter the politician

“You mean, like putting a price on carbon?” said a greying, white gentleman in an expensive suit who had butted into the conversation. “That worked a treat for Australia’s climate change policy.”

“Actually,” said the economist, “it did work well until it was canned by the Abbott Government in 2013.”

“But that’s the point,” purred the politician. “We proposed to ‘axe the tax’ and the people voted us in and we did… axe the tax that is. Putting a price on carbon was electoral poison and may we never hear of it again.”

“And you, Ms Scientist,” he said turning on the person representing science…

“It’s ‘doctor’ actually…” stammered the scientist; but was totally ignored by the politician who was building up a good head of righteous steam.

“…how effective has all your additional science reportage been in winning hearts and minds? For God’s sake, the IPCC’s Sixth Report read like a horror movie in terms of what it’s predicting. Yet we were able to deflect its potency by describing it as horror porn and pointing out we were actually beating our emission targets. It quickly faded from the news cycle.

“And as for you, Ms Lawyer, it’s all well and good to let scared children block coal developments by dragging our Minister for the Environment through the court saying she’s abandoned her duty of care to the future but just you watch happens on appeal.

“Mark my words,” he boomed, “No higher court will uphold a judgement that threatens to block every major economic development that brings with it a residue of environmental harm. To do so would kill the economy, the voters won’t hear of it.

“No, don’t you worry your pretty little heads with all this sustainability clap trap. The adults are in charge, and we’ll make sure there’ll be technology aplenty to ensure our thriving economy continues apace!

“And don’t forget whose taxes keep you happy and out of danger playing away in your little academic sandpits,” he finished with a flourish.

Shifting piles of sand

“You might be surprised what you find in sandpits, Mr Member of Parliament,” hissed back the scientist. “Back in the 80s, physicists experimented with models of sandpiles and discovered they were complex systems. The more grains you add to a pile of sand, the more unstable it becomes. It moves into what’s called a critical state.

“As the pile grows, more and more parts of the sand slope become unstable requiring just one more grain of sand to trigger a slide. At a certain point there are enough small triggers across the pile that setting off one small slide creates an avalanche that can rearrange the whole pile.

“You might think you’re safe from one of the small slides but the interconnected critical nature of the pile means change will occur well away from the initiating disturbance.”

“Thanks for that,” quipped the politician. “I’ll remember that next time a blunder into a sandpit.”

Pile high society

“You don’t get it, do you?” snapped the economist. “Our colleague is actually describing society. You and your conservative brethren are trying to hold things in the same state because that best serves your vested interests, your fossil fuel backers. But our sandpile society is slowly building up a resistance to your efforts. And when the instability corrects itself, your lack of action means the correction will be big.

“Companies and governments, though not the Australian Government, are trying to figure out how to sustain themselves in this increasingly uncertain climate-afflicted world. More and more countries are signing up to economic measures like a price on carbon. Carbon Border Adjustment Mechanisms are being developed by the G7. Even coal companies, irony of irony, are feeling the heat as insurance companies refuse to insure them; companies are having to figure out how they can do this themselves.

“All these things are little patches of instability on the sandpile and it’s making the whole sandpile unstable. This is not just a physics model, economists recognise it all too well and have seen it at play in every economic upheaval from the Great Depression to the GFC.”

“And you piss on the law, Mr Politician,” chimed in the lawyer. “But do you not see what’s happening everywhere at the moment?

“It’s not just a few children disillusioned at your deceit and lack of action. It’s courts at all levels calling you out. The whole Sydney City Council just endorsed the Fossil Fuel Non-Proliferation Treaty and, of course, most of the world signed up to the Paris Agreement. Citizens everywhere are now standing up and demanding what our governments are actually doing to meet these agreement.

“A Dutch court, in a landmark ruling, has just ordered Royal Dutch Shell to drastically deepen planned greenhouse gas emission cuts. This could trigger legal action against energy companies around the world.

“And a Paris court has found the French Government legally responsible for its failure to meet targets intended to reduce greenhouse gas emissions.”

“So, Mr Politician,” said the scientist, taking back the reins of the argument. “What does it mean for your efforts to stop change when all sectors of society – law, economics and science just to mention three – begin building in checks and balances to force change? Your malfeasance enables you to disable some of our efforts – ‘axe the tax’, as you say – but over time the little efforts across society build up, the triggers accumulate, the demographics change and the evidence emerges.

“I’d say you’re sitting on a hypercritical pile of sand being peppered by little grains of sand. And each new grain, each new disturbance, could trigger the slide that triggers the avalanche. And when that happens, your smug self-assurance over the success of the games you’ve been playing will be unable to staunch the flow.”

Nowhere to sit

“And if we’ve scared you out of the sandpit, Mr Politician, think of it as a game of musical chairs,” observed the economist. “Unfortunately, I can’t hear the music anymore.

“And, thanks to you and your efforts, it looks like Australia doesn’t have a chair to sit on.”

Image: In the sandpit of life, a single grain of sand can change everything if the circumstances are ripe. For an excellent article on sandpiles as models of economic growth and disruption, see https://www.mauldineconomics.com/frontlinethoughts/the-growing-economic-sandpile
(Image by Nuwanga Mavinda from Pixabay)

Sharma v Minister for the Environment

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A big win for children on climate change, but for how long?

By Peter Burnett

Never underestimate children. Last week I was telling my family, over dinner, about a recent decision by Justice Bromberg in the Federal Court, concerning climate change. You’ve probably seen media reports of the case, Sharma v Minister for the Environment; in part because it features a group of children.

“The case was brought by half a dozen teenagers,” I pronounced, pleased to be able to talk about my work, “represented by a nun in her eighties.

“There were eight children,” corrected my 11-year-old granddaughter, who is in Year 6.

Well picked up granddaughter, there were indeed eight.

While my main purpose here is to discuss the court case, I have to say it’s heart-warming to see such awareness in one so young. After all, the case concerned her future. Yet it is also heart rending, given the Court’s finding that the climate future facing today’s children was ‘potentially catastrophic’.

The court challenge

The children sought a declaration that the federal environment minister owed them a duty of care in relation to a proposal by a subsidiary of Whitehaven Coal to undertake a major expansion of its Vickery mine in northern NSW.

The Environment Minister came into the equation because the mine could only proceed if she approved it under the EPBC Act, an approval the minister had not yet given.

The expansion would extract an additional 33 million tonnes of coal over 25 years, which would generate 100 million tonnes of C02 when burned.

This is equivalent to about a quarter of Australia’s annual emissions. Although the Court found that, in isolation, these emissions would result in a global temperature increase of only one eighteen-thousandth of a degree Celsius, it rejected an argument that it should disregard this increase as negligible under a legal rule known as de minimis.

The argument for the Minister owing a duty of care was that potentially catastrophic future climate impacts were the foreseeable result of approving the mine and that the children were so vulnerable and so closely and directly affected by a decision under the control of the Minister that she ought to take reasonable care to avoid personal injury to them.

The Minister’s arguments in reply were based on the EPBC Act being a statutory scheme that should, for reasons of both principle and legal interpretation, be regarded as not amenable to common law principles of negligence. A common law duty of care would, the Minister argued, skew her regulatory task.

Interestingly, the minister did not challenge evidence from Emeritus Professor Will Steffen and other experts about the future impacts of climate change on the children. Clearly the government did not want to open itself to accusations of denialism by putting the facts in question, and so it relied exclusively on legal arguments.

The court decision

The Court accepted the argument that the minister owed the children a duty of care not to injure them when exercising her power under the EPBC Act to approve or not approve the mine extension. However, because the judge was not satisfied that there was a reasonable apprehension that this duty would be breached (basically because it was too early to know what the minister might decide), he refused to grant an injunction.

This simple decision sits atop nearly 150 pages of complex legal analysis about the law of negligence, the circumstances in which the courts might find a novel duty of care, such as the one here, and the interaction between statutory schemes such as the EPBC Act and the common law of negligence.

Implications of the decision

There’s enough raw material in this decision for a PhD thesis. So for present circumstances, let’s just look at implications and prospects.

If the decision stands, the implication of the case for decisions under the EPBC Act is that the Minister, when considering whether to approve a development, must now turn her mind to an additional mandatory consideration, the likelihood of personal injury, at least to children if not to others.

This would most likely be of relevance in situations similar to this case; ie, to very large fossil fuel projects, given their climate impacts. The ironic fact that the EPBC Act does not directly regulate climate impacts would not affect this outcome.

It is also conceivable that the precedent might apply to other projects with very large impacts, for example where a project might lead to extensive contamination of the waters of the Great Artesian Basin.

The decision also has potential implications far beyond the EPBC Act. If this duty exists under that Act, it may also apply to other government decisions, possibly even to Cabinet and Budget decisions. And if the duty applies to the minister in approving a mine, it may also apply to those, like Whitehaven, who build and operate mines.

The prospects of the decision standing

This is only the latest in a series of cases which have put fairly adventurous arguments before the courts in the hope of giving the EPBC Act some real teeth. Unlike most of the other cases, on this occasion the arguments have been successful.

However, I think this decision will be appealed and overturned. The arguments would be complex, but in my view, the one most likely to succeed is straight-forward: that the EPBC Act contains a specific direction to the minister to the effect that, in deciding whether or not to approve a development, he or she must only consider the things listed in the relevant division of the Act. That division makes no mention of a duty of care.

If I am right, in one sense it will be back to business as usual, with the Environment Minister approving individual developments on the basis that their impacts are ‘not unacceptable’, while the environment continues to decline.

However, climate litigation is becoming more common around the world as climate risks and impacts increase. Corporations are becoming increasingly responsive to those risks. Even if the case is reversed on appeal, the decision will have given Australian businesses pause for thought and can only add to the momentum towards ‘net zero by 2050′, even in the absence of a government policy to that effect.

Image by Wi Pa from Pixabay

Dead in the water

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Making more of the Royal Commission into ‘our greatest environmental catastrophe’

By David Salt

We all know the Murray Darling Basin is in trouble. We’ve all seen the graphic images of millions of fish gasping for air as they died and heard the desperate stories of towns running dry. But we also know the causes of this distress are complex and involve multiple layers of government, countless players and many vested interests. In an effort to uncover the truth behind this mess, the South Australian State Government set up a Royal Commission in 2018 to examine the effectiveness of the $13 billion Basin Plan, supposedly a blue print for saving the mighty Murray Darling River system.

Earlier this year Richard Beasley, Senior Counsel Assisting at the Murray-Darling Royal Commission, published a book, Dead in the water, on what the Royal Commission found. You should read it. It should also be mandatory reading for anyone interested in the failure of our environmental law and policy.

Many angry texts have been written about how our environment has been let down by government but this book stands head and shoulders above them all in terms of forensic rage. Dead in the water takes readers on a whistle stop tour of the ill-fated Basin Plan, one of our Nation’s biggest environmental investments. The Plan was supposed to repair the mighty Murray Darling River system but is instead enabling (and probably accelerating) its continued degradation and desecration.

If you want to read the full 756-page Royal Commission Report, please do. The Analysis & Policy Observatory has a neat summary of it here, together with a link to download the full report.

If you want to read a single plain-speaking, short article on the Report and what it found, you could do worse than scanning this story in The Guardian (summed up by its title: ‘Murray-Darling basin royal commission report finds gross maladministration’).

But if you want to experience the full rage of how bastard politics and corporate power was able to pervert science while despoiling some of our most prized natural and cultural heritage while having the audacity to claim the opposite, then read Dead in the water. It will leave you very angry. Indeed, Beasley subtitled his book – ‘A very angry book’. A bit of background helps you understand why.

An ill-fated Royal Commission

Beasley’s perspective on the management of the Murray Darling Basin was informed by his experience as Senior Counsel Assisting at the Royal Commission.

The Royal Commission was established in 2018 by the South Australian Labor State Government to investigate the Basin Plan and how it impacts on South Australia. South Australia has a keen interest in this as it sits at the end of the Murray River. Leading the investigation was Commissioner Bret Walker SC, often said to be Australia’s pre-eminent senior counsel.

Walker handed down a damning report at the beginning of 2019. Among other things, he found that Commonwealth officials had committed gross maladministration, negligence and unlawful actions in drawing up the multibillion-dollar deal to save Australia’s largest river system; that the Plan ignored potentially “catastrophic” risks of climate change and failed to make use of the best science available. He concluded that the Basin Plan needed a complete overhaul including reallocating more water from irrigation to the environment.

Unfortunately, politics dogged the Royal Commission at every step. The Commonwealth Government prevented public servants from the Murray-Darling Basin Authority and the Department of Agriculture and Water Resources from appearing at the Royal Commission (the two key agencies overseeing the Basin Plan); and when Commissioner Walker asked for more time to complete his investigation the South Australian Government, now a conservative Liberal Government after a recent election, turned him down. When Walker submitted his 746-page report (containing 111 findings and 44 recommendations) they were warmly welcomed by the SA Government and then politely ignored.

A very angry book

Richard Beasley witnessed all this, indeed was a central player in the Commission’s search for truth.

I can’t imagine how it must have felt to hear and see and read all the testimonies from multiple experts, stakeholders and witnesses on the degrading state of the Basin and the inadequacy of the Basin Plan to address this decline. To hear statement after statement that the Basin Plan clearly is not based on the best science available, is unlawful, probably unconstitutional, and definitely not fit for purpose.

And rather than have the bureaucrats, managers and public servants responsible for implementing the plan explain and justify why it is as it is, the Federal Government gags them, prevents them from speaking. And then the final report is effectively forgotten because there’s been a change in the South Australian state government.

If I were watching all this I think I’d whither with rage, shrivel with impotence. What would you do?

Richard Beasley walked away from the Royal Commission and wrote an angry book. And, because he’s a skilful writer with a lawyer’s sharp eye for detail and a wicked sense of humour, he laced his observations with wry humour, amusing anecdotes and personal asides. And his anger is palpable, and there are expletives aplenty.

Beasley didn’t want to simply serve up a slightly more plain-speaking version of the Royal Commission Report; he wanted to record his fury at the environmental disaster that is unfolding up and down our nation’s most important river systems. He wanted to enrage his readers about the deep injustices this disaster is propagating across the landscape (for starters the appalling dispossession of First Nations people). And he wanted to highlight the horrific failure in governance that has allowed this to happen.

We need more angry books

I wish there were more ‘Richard Beasleys’ out there who could capture so well the multi-dimensional nature surrounding poor governance, ecosystem collapse and the subsequent societal loss it brings. Unfortunately, I don’t think there are many like him around. Most scientists, for example, are scared to get too emotional or personal in order to tell stories that really move people (and I say this having worked in science communication and with scientists for over 30 years).

I’m sure part of Beasley’s intent with Dead in the water was to vent his own rage. But possibly the greater aim was to enrage the broader community to challenge our governments (at all levels) on their appalling mismanagement of our natural heritage. I know I finished the book feeling quite outraged at what has been allowed to occur.

Beasley’s book carries the subtitle: “A very angry book about our greatest environmental catastrophe… the Murray Darling Basin”. I think it’s possible to cast the Great Barrier Reef, our Box Gum Grassy Woodlands and many of our forest systems in the same light. If only we had more storytellers like Richard Beasley to get people angry enough to demand real action on all these catastrophes from our elected leaders.

A major report excoriated Australia’s environment laws. Sussan Ley’s response is confused and risky

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By Peter Burnett

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

It’s official: Australia’s natural environment and iconic places are in deep trouble. They can’t withstand current and future threats, including climate change. And the national laws protecting them are flawed and badly outdated.

You could hardly imagine a worse report on the state of Australia’s environment, and the law’s capacity to protect it, than that released yesterday. The review of the Environment Protection and Biodiversity (EPBC) Act, by former competition watchdog chair Professor Graeme Samuel, did not mince words. Without urgent changes, most of Australia’s threatened plants, animals and ecosystems will become extinct.

Federal environment minister Sussan Ley released the report yesterday after sitting on it for three months. And she showed little sign of being spurred into action by Samuel’s scathing assessment.

Her response was confusing and contradictory. And the Morrison government seems hellbent on pushing through its preferred reforms without safeguards that Samuel says are crucial.

A bleak assessment

I was a federal environment official for 13 years, and from 2007 to 2012 was responsible for administering and reforming the EPBC Act. I believe Samuel’s report is a very good one.

Samuel has maintained the course laid out in his interim report last July. He found the state of Australia’s natural environment and iconic places is declining and under increasing threat.

Moreover, he says, the EPBC Act is outdated and requires fundamental reform. The current approach results in piecemeal decisions rather than holistic environmental management, which he sees as essential for success. He went on:

The resounding message that I heard throughout the review is that Australians do not trust that the EPBC Act is delivering for the environment, for business or for the community.

A proposed way forward

Samuel recommended a suite of reforms, many of which were foreshadowed in his interim report. They include:

  • national environmental standards, legally binding on the states and others, to guide development decisions and provide the ability to measure outcomes
  • applying the new standards to existing Regional Forest Agreements (RFAs). Such a move could open up the forest debate in a way not seen since the 1990s
  • accrediting the regulatory processes and environmental policies of the states and territories, to ensure they can meet the new standards. Accredited regimes would be audited by an Environment Assurance Commissioner
  • a “quantum shift” in the availability of environmental information, such as accurate mapping of habitat for threatened species
  • an overhaul of environmental offsets, which compensate for environmental destruction by improving nature elsewhere. Offsets have become a routine development cost applied to proponents, rather than last-resort compensation invested in environmental restoration.

Under-resourcing is a major problem with the EPBC Act, and Samuel’s report reiterates this. For example, as I’ve noted previously, “bioregional plans” of land areas – intended to define the environmental values and objectives of a region – have never been funded.

Respecting Indigenous knowledge

One long-overdue reform would require decision-makers to respectfully consider Indigenous views and knowledge. Samuel found the law was failing in this regard.

He recommended national standards for Indigenous engagement and participation in decision-making. This would be developed through an Indigenous-led process and complemented by a comprehensive review of national cultural heritage protections.

The recommendations follow an international outcry last year over mining giant Rio Tinto’s destruction of 46,000-year-old caves at Juukan Gorge in Western Australia. In Samuel’s words:

National-level protection of the cultural heritage of Indigenous Australians is a long way out of step with community expectations. As a nation, we must do better.

Confusing signals

The government’s position on Samuel’s reforms is confusing. Ley yesterday welcomed the review and said the government was “committed to working through the full detail of the recommendations with stakeholders”.

But she last year ruled out Samuel’s call for an independent regulator to oversee federal environment laws. And her government is still prepared to devolve federal approvals to the states before Samuel’s new national standards are in place.

In July last year, Ley seized on interim reforms proposed by Samuel that suited her government’s agenda – streamlining the environmental approvals process – and started working towards them.

In September, the government pushed the change through parliament’s lower house, denying independent MP Zali Steggall the chance to move amendments to allow national environment standards.

Ley yesterday reiterated the government’s commitment to the standards – yet indicated the government would soon seek to progress the legislation through the Senate, then develop the new standards later.

Samuel did include devolution to the states in his first of three tranches of reform – the first to start by early 2021. But his first tranche also includes important safeguards. These include the new national environmental standards, the Environment Assurance Commissioner, various statutory committees, Indigenous reforms and more.

The government’s proposed unbundling of the reforms doesn’t pass the pub test. It would tempt the states to take accreditation under the existing, discredited rules and resist later attempts to hold them to higher standards. In this, they’d be supported by developers who don’t like the prospect of a higher approvals bar.

A big year ahead

Samuel noted “governments should avoid the temptation to cherry pick from a highly interconnected suite of recommendations”. But this is exactly what the Morrison government is doing.

I hope the Senate will force the government to work through the full detail of the recommendations with stakeholders, as Ley says she’d like to.

But at this stage there’s little sign the government plans to embrace the reforms in full, or indeed that it has any vision for Australia’s environment.

All this plays out against still-raw memories of last summer’s bushfires, and expected pressure from the United States, under President Joe Biden, for developed economies such as Australia to lift their climate game.

With the United Nations climate change conference in Glasgow in November, it seems certain the environment will be high on Australia’s national agenda in 2021.

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

Image by pen_ash from Pixabay

Australian court calls into question Regional Forest Agreements

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The days of RFAs may be numbered if the successful challenge by Friends of Leadbeater’s Possum is anything to go by

By Peter Burnett

The recent decision of the Federal Court in Friends of Leadbeater’s Possum Inc v VicForests (hereafter, the Possum Case) could have significant and possibly profound implications for the logging of native forests in Australia. In this case the court found that VicForests, a Victorian Government forestry corporation, was in breach of a statutory Code of Practice for Timber Production that had been accredited under a federal-state Regional Forest Agreement (RFA).

Being covered by an RFA has meant that VicForests was exempt from the normal requirements of the Environment Protection and Biodiversity Conservation Act (EPBC Act). Because of this exemption, VicForests didn’t have to go through an environmental assessment and approval process each time it wanted to log in new areas that might contain endangered species or other ‘matters of national environmental significance’.

Of course, being in breach meant that this exemption was lost.

No simple fix

You might think that VicForests could deal with such a finding by simply bringing itself back into compliance with the code. It’s not that simple, however.

The code of practice required VicForests to comply with the precautionary principle. This in turn required them to conduct on-ground ecological surveys, with a view to avoiding serious and irreversible environmental damage. In this case, damage was possible to two endangered possums, the Leadbeater’s possum and the greater glider.

In considering impacts on the possums, VicForests had relied on desktop modelling (including habitat mapping) instead of conducting surveys. The court said this was a flawed approach. It also found that policies such as VicForests’ Interim Greater Glider Strategy didn’t represent the required ‘careful evaluation of management options’ but rather were defensive documents. The content of these documents suggested that VicForests developed policies out of a sense of obligation and were reluctant to implement them.

The implication is that coming into compliance with the Code would be no small thing. It would require significant changes of approach and attitude. More significantly, given expert evidence that the possums had been detected in or around all of the 66 logging coupes considered in the case, it was likely that the possums, let alone any other environmental value, could severely restrict or even prevent logging altogether.

Playing possum

The Possum Case is on appeal, and of course the appeal could be successful. If it is not successful (and I think Justice Mortimer’s 444 page judgement will be difficult to pull apart in an appeal court because it rests much more on scientific evidence and practice than on the points of law to which an appeal court is confined) the Victorian government’s hand will be forced.

The government will either have to underwrite further losses as VicForests brings itself into compliance with environmental standards, or it will decide to accelerate the transition out of native forest logging. The option of watering down the rules, which is what the federal and Tasmanian governments did in an earlier case, is less likely because, again, the issues relate more to good science and practice than to legalities, making a lowering of the bar more obvious and thus harder to defend.

This is not the first challenge to Australia’s ten RFAs. Green activist and former Senator Bob Brown challenged the Tasmanian RFA in 2006 in the Weilangta case. He won in the first instance but lost on appeal. The Possum Case seems to have prompted him to try again: Brown has already commenced a fresh challenge to the Tasmanian RFA.

The main implication of the Possum Case may be that the days of RFAs are numbered.

A fresh approach

In one respect the end of RFAs would be unfortunate, as the underlying model of regional environmental assessments and approvals is a good one.

In another respect, if RFAs simply provide cover for defensive box ticking and green-washing rather than substantive conservation (something I discussed in an early blog), this would be no great loss.

RFAs provided a mechanism to settle the ‘forest wars’ of the 1990s. So, if RFAs are rendered inoperable by court challenges, will it be back to the forest wars?

Or do we now have a much better appreciation of the many values that our native forests provide; values that include a whole range of ecosystem services beyond timber production, such as carbon sequestration, water yield, habitat provisioning and recreational amenity? Heather Keith and her colleagues reached this conclusion in an important article published in Nature in 2017.

Sometimes we need a jolt to the system to get us thinking differently.

Image: This possum is stuffed: George is a taxidermied male Leadbeater’s Possum (Gymnobelideus leadbeateri) that Friends of Leadbeater’s Possum uses for its educational work relating to this threatened species. George was found dead but intact on the side of a logging road in 2011 in the Victorian Central Highlands. It is assumed that George’s home in the mountain ash (Eucalyptus Regnans) forests was a victim of logging, and as his home was being carted away he fell off the logging truck. (Image by Tirin (www.takver.com) and used under the Creative Commons Attribution-Share Alike 3.0 Unported license.)

Environment Minister Sussan Ley is in a tearing hurry to embrace nature law reform – and that’s a worry

The Morrison government has just released a long-awaited interim review into Australia’s federal environment law. The ten-year review found Australia’s natural environment is declining and under increasing threat. The current environmental trajectory is “unsustainable” and the law “ineffective”.

The report, by businessman and academic Professor Graeme Samuel, called for fundamental reform of the law, known as the Environmental Protection and Biodiversity Conservation (EPBC) Act. The Act, Professor Samuel says:
“[…] does not enable the Commonwealth to play its role in protecting and conserving environmental matters that are important for the nation. It is not fit to address current or future environmental challenges.”

He confirmed the health of Australia’s environment is in dire straits, and proposes many good ways to address this.

Worryingly though, Environment Minister Sussan Ley immediately seized on proposed reforms that seem to suit her government’s agenda – notably, streamlining the environmental approvals process – and will start working towards them. This is before the review has been finalised, and before public comment on the draft has been received.

This rushed response is very concerning. I was a federal environment official for 13 years, and from 2007 to 2012 was responsible for administering and reforming the Act. I know the huge undertaking involved in reform of the scale Professor Samuel suggests. The stakes are far too high to risk squandering this once-a-decade reform opportunity for quick wins.

‘Fundamental reform’ needed: Samuel

The EPBC Act is designed to protect and conserve Australia’s most important environmental and heritage assets – most commonly, threatened plant and animal species.

Professor Samuel’s diagnosis is on the money: the current trajectory of environmental decline is clearly unsustainable. And reform is long overdue – although unlike Graeme Samuel, I would put the blame less on the Act itself and more on government failings, such as a badly under-resourced federal environment department.

Samuel also hits the sweet spot in terms of a solution, at least in principle. National environmental standards, legally binding on the states and others, would switch the focus from the development approvals process to environmental outcomes. In essence, the Commonwealth would regulate the states for environmental results, rather than proponents for (mostly) process.

Samuel’s recommendation for a quantum shift to a “single source of truth” for environmental data and information is also welcome. Effective administration of the Act requires good information, but this has proven hard to deliver. For example the much-needed National Plan for Environmental Information, established in 2010, was never properly resourced and later abolished.

Importantly, Samuel also called for a new standard for “best practice Indigenous engagement”, ensuring traditional knowledge and views are fully valued in decision-making. The lack of protection of Indigenous cultural assets has been under scrutiny of late following Rio Tinto’s destruction of the ancient Indigenous site Juukan caves. Reform in this area is long overdue.

And notably, Samuel says environmental restoration is required to enable future development to be sustainable. Habitat, he says “needs to grow to be able to support both development and a healthy environment”.

Streamlined approvals

Samuel pointed to duplication between the EPBC Act and state and territory regulations. He said efforts have been made to streamline these laws but they “have not gone far enough”. The result, he says, is “slow and cumbersome regulation” resulting in significant costs for business, with little environmental benefit.

This finding would have been music to the ears of the Morrison government. From the outset, the government framed Samuel’s review around a narrative of cutting the “green tape” that it believed unnecessarily held up development.

In June the government announced fast-tracked approvals for 15 major infrastructure projects in response to the COVID-19 economic slowdown. And on Monday, Ley indicated the government will prioritise the new national environmental standards, including further streamlining approval processes.

Here’s where the danger lies. The government wants to introduce legislation in August. Minister Ley said “prototype” environmental standards proposed by Professor Samuel will be introduced at the same time. This is well before Samuel’s final report, due in October.

I believe this timeframe is unwise, and wildly ambitious.

Even though Samuel proposes a two-stage process, with interim standards as the first step, these initial standards risk being too vague. And once they’re in place, states may resist moving to a stricter second stage.

To take one example, the prototype standards in Samuel’s report say approved development projects must not have unacceptable impacts on matters of national environmental significance. He says more work is needed on the definition of “unacceptable”, adding this requires “granular and specific guidance”.

I believe this requires standards being tailored to different ecosystems across our wide and diverse landscapes, and being specific enough to usefully guide the assessment of any given project. This is an enormous task which cannot be rushed. And if Samuel’s prototype were adopted on an interim basis, states would be free, within some limits, to decide what is “unacceptable”.

It’s also worth noting that the national standards model will need significant financial resources. Samuel’s model would see the Commonwealth doing fewer individual project approvals and less on-ground compliance. However, it would enter a new and complex world of developing environmental standards.

More haste, less speed

Samuel’s interim report will go out for public comment before the final report is delivered in October. Ley concedes further consultation is needed on some issues. But in other areas, the government is not willing to wait.

After years of substantive policy inaction it seems the government wants to set a new land-speed record for environmental reform.

The government’s fixation with cutting “green tape” should not unduly colour its reform direction. By rushing efforts to streamline approvals, the government risks creating a jumbled process with, once again, poor environmental outcomes.

Image by MrsKirk72 from Pixabay

This story originally appeared in The Conversation.

It’s time: for a national conversation on the environment

And that conversation should include national goals and environmental measurement

By Peter Burnett

Soon after she became federal environment minister last year, Sussan Ley spoke of a collaborative approach to the environment.

Foreshadowing what is now Professor Graeme Samuel’s Independent Review of the Environment Protection and Biodiversity Conservation (EPBC) Act, Ley said the review was ‘the right time to have a conversation about the best ways we can ensure strong environmental and biodiversity protection measures that encourage people to work together in supporting the environment’.

Professor Samuel has handed his draft report to Ley, who is expected to release it soon.

So it’s about time to start that conversation.

Of course, it would have been better to have the conversation a long time ago, when the environment wasn’t in such dire straits, but as the Chinese proverb puts it, ‘The best time to plant a tree was 20 years ago. The second best time is now.’

I’d like to suggest a couple of conversation-starters.

An agreed goal: what kind of environment do we want?

The first is to make sure the conversation leads to an agreed national statement of the kind of environment Australians want.

This is not an easy thing to do. For example, while most might support a goal of a ‘healthy’ environment, translating that vision into policy raises difficult questions like ‘how healthy?’ and ‘at what cost?’

Yet we need to commit to a clear goal. Otherwise we are left with our ongoing focus on the short term, something which has only delivered what Australia’s doyen of environmental policy, Professor Steve Dovers, has described as ‘policy ad hocery and amnesia’.

In colloquial terms this is a constant chopping and changing and it severely undermines our efforts to address environmental problems.

Earlier efforts at defining that national goal

So far, the closest we’ve come to adopting a clear national goal was through the ‘ESD [Ecologically Sustainable Development] process’, an intense dialogue between government, business, unions and environment groups in the early 1990s.

The ESD process produced a massive 12 volume consensus report containing hundreds of substantial recommendations. However, politics, especially Paul Keating’s ousting of Bob Hawke as Prime Minister, got in the way.

In the end, Australia’s governments gave us a vaguely-written and unfunded National Strategy on ESD.

As a conversation, the ESD process had at least two major flaws.

First, hardly anyone really knew what ESD meant. Unlike the ‘sustainability’ of political discourse, which means all things to all people, ESD is a real but complex and often misunderstood concept.

Second, the ESD process was a conversation between elites, which largely passed the rest of us by.

So we signed up to ESD through the National Strategy, without really ‘buying’ it. One consequence was that ESD was then written into many laws and policies, though usually in ways that allow lip service, which is what ESD usually gets.

But every now and again someone takes it seriously, as the Federal Court did recently in finding that VicForests had failed to apply the precautionary principle (one element of ESD) and were thus logging unlawfully.

This kind of outcome, where we set, but then ignore, environmental speed limits, while occasionally dabbing the brakes, is hardly good policy.

If we are going to have a national conversation, it needs to be widely publicised, well-informed, run at ‘town hall’ level and continued for as long as it takes to get a real sense of the aspirations of the Australian people for the future.

We especially need to grapple with the tension underlying ESD, which is how to reconcile our desires for ongoing economic growth with the capacity of the environment to support our ever-growing consumption of environmental goods and services.

If we squib this major challenge, we will likely continue as we have, nibbling away at various parts of the environment with a limited understanding of the cumulative impact of our daily decisions, large and small.

This nibbling away is what a famous American economist, Alfred Kahn, once described as ‘the tyranny of small decisions.’ And as the leading ecologist William Odum recognized, it is particularly pertinent to the environment.

You can’t manage what you can’t measure

My second suggestion concerns the dry but vital topic of environmental information.

One of the shibboleths of modern management is ‘you can’t manage what you can’t measure’. Managing the environment is doubly difficult because, even if we had unlimited data, we still wouldn’t fully understand nature in its complexity.

However a comprehensive information system, including environmental accounts to help arrange information for decision-making, would be a major advance.

Despite governments actively seeking to manage the environment for nearly 50 years, we still don’t have such a system. There have been many programs and promises over the years, but governments have tended to scale them back or drop them as they change focus.

Maybe that’s because environmental information isn’t politically ‘sexy’; most people neither know nor care.

A good example is the Rudd Government’s 2010 National Plan for Environmental Information (NPEI). This plan grew out of a recommendation from Prime Minister Rudd’s 2020 Summit (held in 2007) that Australia develop national environmental accounts.

But the NPEI was underfunded from the outset and then cut after a change of government.

We still have no national baseline biodiversity monitoring, first promised in 1996.

And although the Australian Bureau of Statistics (ABS) has been experimenting with national environmental-economic accounts for decades, these accounts remain experimental, partial or intermittent. They are certainly not developed to the point where they could support specific environmental management decisions.

If we were having a national conversation, I would argue for a national institution to gather and hold environmental information.

We do this for mineral resources, through Geoscience Australia; for health and welfare, through the Australian Institute of Health and Welfare; and for water resources, through the Bureau of Meteorology. An institution for environmental information is a logical next step.

And I would expand dramatically the environmental accounts prepared by the ABS, requiring them to be used in real environmental decisions.

The coming national conversation?

So we badly need a national conversation on protecting the environment, but will we get one?

Sussan Ley is hardly paving the way, having spoken of the Samuel Review only in the context of ‘cutting green tape’, a slogan.

Perhaps Ley will surprise us, by making some speeches about biodiversity or convening public forums to discuss the review.

Whether the conversation is led by government or not, we need to rise above slogans for a broad and respectful conversation about our environmental values.

Image by Gerd Altmann from Pixabay

A bluffer’s guide to Australia’s premier environmental law

and why it’s going so horribly wrong

By David Salt

Any casual reader of the news (and of this blog) probably would have noticed that Australia’s environmental law is in the spotlight at the moment. It’s being reviewed, analysed and attacked from multiple directions.

Anyone with half an interest in nature or biodiversity conservation probably believes it’s important that Australia’s environmental laws are strong and effective. However, most people have very little idea what those laws are, how they work and whether they are adequate.

Well, here’s a quick summary of what Australia’s premier environmental law is and what all the fuss is about. Think of it as your ‘bluffer’s guide’ to Australia’s environmental law.

Why would you bother with a bluffer’s guide? Because the legislation itself is impenetrable (see item 1).

1. What is Australia’s premier environmental law?

Each state and territory has its own environmental legislation but the nation’s premier law is the Environmental Protection and Biodiversity Conservation Act (EPBC Act) created and implemented by the Federal Government. It was enacted in 1999, is over 1000 pages long, full of arcane legal language and has been described by some as ‘impenetrable’.

Fortunately, Peter Burnett (the co-producer of Sustainability Bites) is a lawyer and has taken the time to break the Act down into its constituent part and explain them in plain English (see ‘What’s in the EPBC Box’). It has 16 major components which come together to serve three broad functions:

Identify: The Act identifies which environmental values (threatened species and special places) should be protected. These are often referred to as ‘matters of national environmental significance’ and include World Heritage places (like the Great Barrier Reef) and nationally-listed species (like the Leadbeater’s possum).

Plan: The Act provides planning for the conservation of these environmental values; for example, developing recovery plans for threatened species and management plans for protected areas.

Assess: The EPBC Act assesses and approves developments that might harm the environmental values protected by the Act. The best known component in this third stream is project-based environmental impact assessment. The Act gives the government the power to block projects that adversely impact matters of national environmental significance.

2. Who doesn’t like the law?

Everyone.

Everyone has problems with the EPBC Act, but the issues are different depending on where you’re coming from.

Environmentalists complain the Act is not protecting the values it was set up to protect. Species and ecosystems are going extinct or degrading at an accelerating rate, and areas of special significance (like the Great Barrier Reef) are not being protected from global changes such as climate change.

Developers and farmers, on the other hand, complain the Act is making it harder to turn a profit and get projects off the ground. They claim the approval process is green tape that adds to the cost of a development and enables political green groups to attack them in the courts (lawfare).

3. What’s wrong with the law?

The problem with pointing out what’s ‘wrong’ with the EPBC Act is that you’ll be instantly dismissed by the ‘opposing’ side; and clearly I’m on the pro-environmental side. On this side of the fence, the claims of green tape and lawfare appear unsubstantiated and ideological (and for an excellent discussion on this see Peter Burnett’s last blog green tape and lawfare). However, they have been repeated so often they have become articles of faith to some groups.

On the other hand, there are a substantial number of studies showing the EPBC Act is failing to protect the things it was established to protect. For example, a new analysis by WWF Australia shows that more than a million hectares of threatened species’ habitat was cleared for agriculture in New South Wales and Queensland without referral to the federal environment department for assessment, one of the main purposes of the EPBC Act.

The Australian Conservation Foundation found that in the past 20 years, the period during which the EPBC Act was in force, an area of threatened species habitat larger than Tasmania (7.7 million hectares) has been logged, bulldozed and cleared. And they cite numerous case studies of where the government has failed to act even when something is referred under the EPBC Act.

Those who see the EPBC Act as a hindrance would simply discount such evidence no matter how well researched – “well, they would say that, wouldn’t they!” Then they’d probably follow up with something like “but we’re here for jobs and growth!”

Possibly harder to dismiss (on ideological grounds) is the review undertaken by the Australian National Audit Office. Just released, it found the government’s administration of the EPBC Act to be inefficient, ineffective and had failed to manage environmental risk. It also found funding cuts to the department since 2014-15 had slowed down the assessment and approval times for developments. It is a scathing reflection on the Government’s management of the Act.

4. How could we make it work better?

It’s been pointed out by many people that the existing EPBC Act could operate with fewer delays while still affording the same level of protection simply by providing more resources for its operation. Between 2013 and 2019, the federal environment department’s budget was cut by 40%, according to an assessment by the Australian Conservation Foundation. So it’s little wonder approval processes slowed.

Underlining this, at the end of last year the Government put $25 million towards speeding up environmental approvals, in effect simply reversing part of their cost cutting over the years.

In addition to resourcing, more effort towards coordinating assessments between the federal and state governments would go some way towards speeding up the approval process.

Changing the law itself is another approach but this is a chancy approach because it’s hard to negotiate anything through the unpredictable numbers in the Senate. Towards this end, the Act itself requires that it be independently reviewed every 10 years. The first review in 2009 came up with a comprehensive set of reforms to improve the operation of the Act but amidst the political turmoil of the time nothing every materialised.

Today we are waiting on the interim report of the second EPBC review led by Graeme Samuel, former Chair of the Australian Competition and Consumer Commission. Much rides on this report and everyone is wondering what it will say so close on the release of so many other damning reports on the EPBC Act’s inability to protect Australia’s environmental values.

5. What’s right about the EPBC Act?

The EPBC Act is a strong piece of legislation. It gives the Minister for the Environment the power to block actions and developments that threaten environmental values that the Government has said it would protect. It causes developers to consider the environmental impact of their projects and hopefully modify their plans to ameliorate potential impact. These things are good.

However, if the Minister chooses to use her (or his) discretion to determine a development isn’t threatening ‘matters of national environmental significance’, and the government starves the Department of Environment (currently sitting in the Department of Agriculture) of resources making it impossible to collect the evidence and assess the true nature of any potential development, the Act is disempowered.

At the end of the day, every piece of law is only as good as its implementation. If the government is failing in its duty of care for the nation’s natural heritage then we should be holding the government to account, not blaming the law that is supposed to protect that heritage.

Which begs the question, when will we demand our Government be true to its stated claim that it does care for our environment? Will it be before the predicted extinction of koalas in NSW by 2050? What about the impending destruction of the last remaining habitat of the stocky galaxias, a critically endangered native fish threatened by the Snowy 2.0 project (a project that has just been given the green light by Environment Minister Sussan Ley)? These are just two stories in the news this week. Thousands of other environmental values are similarly at risk, awaiting the Government’s next move on how it deals with Australia’s premier environmental law.

Image by Bruce McLennan from Pixabay

All’s fair in love and law?

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

By Peter Burnett

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

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

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

There’s a lot at stake.

More than coloured tape

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

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

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

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

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

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

It’s complicated

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

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

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

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

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

‘Lawfare’ and the right to challenge

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

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

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

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

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

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

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

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

You can see what a tricky issue this is.

Political framings

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

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

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

Image by Gerhard Lipold from Pixabay