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

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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?

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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

Cultural vandalism in the land of Oz

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Criminal intent or just failed governance?

By David Salt

Humans have a rich history of disregarding the culture of others. One tribe moves onto the turf of another tribe and trashes the cultural capital of the first tribe simply because they can; because the culture of the first tribe is an affront to their ideology or their sense of mastery. It’s a signal to everyone that the conquering tribe is the one in charge.

Last week a mining company blew up a cave in Juukan Gorge Western Australia as part of its mining operation. In so doing it destroyed Aboriginal heritage reaching back some 46,000 years.

What does this signal? That economic priorities trump everything else? That First Nation culture is to be respected but only when there is no price to pay? Or that our governance of cultural heritage is a sad joke?

Humans have a rich history of disregarding the culture of others. Around the world there have been many recent episodes of cultural vandalism but this episode in Australia is on many scores far worse.

Blowing up the Buddhas

Many have compared what happened in WA with the Taliban who blew up the massive carved Buddhas in Afghanistan in 2001 (see David Pope’s cartoon).

It is believed that the monumental Buddha sculptures – one 53m tall, the other 35m – were carved into the cliffs at Bamiyan some 1500 years ago. Before being blown up they were the largest examples of standing Buddha carvings in the world. They were perhaps the most famous cultural landmarks of the region, and the area was listed by UNESCO as a World Heritage Site.

In 2001, the fanatical government of Afghanistan, the Taliban, declared the statues an affront to Islam. The Taliban’s supreme leader Mullah Omar said that “Muslims should be proud of smashing idols.”

And so it was, despite international condemnation, that the statues were blown to pieces by dynamite.

However, this act of desecration was deliberate, planned and trumpeted to the world. It wasn’t collateral damage in the pursuit of some other goal (such as the expansion of a mine). It was an end unto itself. Like it or not, agree with it or not, it was an act carried out by the government in control of the region.

From Prophet to profit: David Pope’s commentary in The Canberra Times.

Drowning the birthplace of ‘civilisation’

That was 20 years ago. Surely such explicit vandalism of the world’s greatest cultural heritage wouldn’t happen these days?

Have you heard of the ancient city of Hasankeyf? It sits on the banks of the Tigris River in south-eastern Turkey. It may be one of the oldest continuously inhabited settlements in the world, spanning some 10,000 years (leaving aside Australian Indigenous culture that goes back some 60,000). It shows examples of Bronze Age kingdoms, Roman influences and was part of the Mongol, Safavid and Ottoman Empires.

Well, if you haven’t seen it you’ve missed your chance. Hasankeyf has just gone under the waters of the newly completed Ilısu Dam. According to Turkey’s leaders, the dam will generate 10,000 jobs, spur agricultural production through irrigation and boost tourism (though many claim the only tourist drawcard in this region is the now drowned city of Hasankeyf).

The dam’s development has been a running sore for the country for many years but Turkey’s strong-arm leadership would not bend to any appeals – internal or external – on sparing the ancient heritage that lay in Hasankeyf. Their claim was the economic development this project would bring outweighed the heritage value of not proceeding.

Some would support such an argument saying a developing country has the right to place its economic development first and foremost. That once the economy has been developed, when it’s people on average enjoy a higher quality of life, then is the time for debates on protection of unique heritage values. It sits with a body of theory referred to as the Kuznetz Curve that suggests that social and environmental concerns are often dealt with once a nation has healthy and robust economy.

So what are we doing in the land of Oz?

None of this should give us comfort when it comes to our brand of cultural vandalism.

The site in Juukan Gorge destroyed by the mining giant Rio Tinto up in the Pilbara was well known for its outstanding heritage values. It’s the only known inland site showing human occupation through the last ice age. The shelters were in use some 46,000 years ago making them approximately twice as old as the famed Lascaux Caves in France.

Rio Tinto says it has apologised to the traditional owners of the site, the Puutu Kunti Kurrama and Pinikura (PKKP) people.

“Our relationship with the PKKP matters a lot to Rio Tinto,” says Rio Tinto Iron Ore Chief Executive Chris Salisbury. But apparently, it doesn’t matter so much that the mining giant even informed the PKKP they were planning to demolish the caves. The PKKP only found out about the plans when they asked, about a week before the demolition, for access to the shelters for NAIDOC Week in July.

Rio Tinto then went on to suggest that the PKKP had failed to make clear concerns about preserving the site during years of consultation between the two parties, something representatives of the PKKP strongly denied saying Rio was told in October about the significance of the rock shelters (and again as recently as March).

While the demolition was legal under outdated WA heritage protection laws it’s hard to see how such cultural vandalism would have been allowed to proceed if there had been any public airing of what was about to occur.

According to news reports, the federal minister for Indigenous Affairs was informed about the imminent destruction of the caves in the days before it occurred but did nothing about it.

The WA Minister for Aboriginal Affairs claims he didn’t even know the demolition was happening.

And the perpetrators themselves are making few comments (though they released an apology several days after the destruction – possibly realising that in so overreaching acceptable behaviour that their social licence to operate was in question).

Things will change?

Clearly, something has gone horribly wrong here. At the very least there has been a terrible lapse in national and state governance, and an appalling lapse in corporate social responsibility. Everyone has expressed regret over what happened, but no-one has accepted responsibility.

Things will change our political leaders are belatedly telling us. WA hopes to pass its new improved Aboriginal cultural heritage bill later this year; the existing law that permitted this destruction is almost 50 years old and crafted in a different age when it comes to respecting Aboriginal culture.

Federal Indigenous Affairs minister Ken Wyatt has now called for Indigenous cultural protection to be addressed in the current review of the EPBC Act. It’s interesting that the discussion paper put out for the EPBC review seems to put a lot of emphasis on Indigenous issues. It’s ironic that this desecration by Rio Tinto should occur while this review is in train.

The caves at Juukan Gorge contained inestimable anthropological and cultural value, as did Hasankeyf and the Bamiyan Bhuddas. Unlike Hasankeyf and the Bhuddas, the caves lay in a stable, democratic and developed nation that tells the world it respects and protects Indigenous culture.

What happened last week at Juukan Gorge shines a light on the truth of this claim. It can never be allowed to happen again.

Image: Rio Tinto prepares explosives that will destroy a 46,000 year old Aboriginal shelter in Juukan Gorge. (PKKP Aboriginal Corporation.)

Saving the environment via human rights

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Is it possible? Is it likely? Appealing a coal mine using the HR Act

By Peter Burnett

A group of young people in Queensland are challenging the approval of Clive Palmer’s giant Waratah coal mine. The challenge is based on human rights – a legal first in Australia – and it just might rewrite the law books.

The Waratah mine, which is near Adani’s Carmichael mine but a separate project, is huge. If my back of the envelope calculations are correct, coal from the Waratah mine represents about 3% of the world’s remaining carbon budget if warming is to be limited to 2 degrees.

Challenging the mine’s approval on the basis of human rights is a novel approach. It’s based on Queensland’s new Human Rights Act (‘HR Act’), passed in 2019. Only the ACT has a comparable Act, though Victoria has a Charter of Rights and there’s a federal Human Rights Commission.

Where does a human rights approach take us?

The HR Act protects a series of rights, including the right to life, right to own property and right of children to protection. It makes no mention of the environment. Rather, the argument will be that the mine breaches human rights by contributing to climate change, which in turn will impair these rights.

The HR Act directs Queensland decision-makers, including those responsible for environmental approvals, to consider human rights and makes it unlawful for them to take decisions that are not compatible with human rights.

No doubt the case against the Waratah mine will involve arguments about the meaning of rights such as the right to life. However, that’s not the interesting part from our environmental perspective.

To prove that the mine would breach their human rights, the applicants will have to establish that it would contribute significantly to climate change. This will involve showing that emissions resulting from the mine would make a significant contribution to global emissions.

So, despite the novel human rights basis for the challenge, we find ourselves back on the familiar but troublesome environmental terrain, traversed in earlier challenges based on environmental laws, of demonstrating the contribution of individual developments to climate change.

The substitution argument

The mine is probably big enough to rate as a significant potential contributor to emissions. The problem is causation: if the coal is mined and exported, will this actually increase emissions by the amount of carbon in the coal? Is there additionality of impact?

Additionality is not a simple physical cause and effect issue. Before it is burnt, the coal is sold into a market, in which human actors take independent and unpredictable transactional decisions.

This then raises the ‘substitution argument’, an economic argument that the coal from this mine may substitute for another energy source, such as lower quality coal, in which case the Waratah coal might even reduce emissions if the low quality coal is thereby pushed out of the market and left in the ground.

But there are variations and elaborations on the substitution argument. In one case the federal environment minister, considering whether to approve the Adani coal mine in 2016, argued in effect that it was not possible to tell who would buy the coal, what it would replace, or how other suppliers might respond, which meant that it was not possible to tell whether there would be any additional impact.

The minister instead declared himself satisfied that emissions associated with the project would be managed through the Paris Agreement. The Federal Court accepted this as a legally valid approach.

In the more-recent Rocky Hill case, Chief Judge Preston of the NSW Land and Environment Court rejected another version of the argument, which amounted to ‘if we don’t mine this coal, someone else will supply something worse’. Justice Preston rejected this ‘lesser of two evils’ framing in favour of what amounted to a presumption of additionality, which could only be displaced by evidence of substitution.

Will the courts reject the substitution argument?

On the face of it, this latest challenge might lead to an appeal court ruling, possibly from the High Court, on the substitution argument. If favourable to the young appellants, this might lead to an outcome where, subject to the specifics of the laws concerned, environmental assessments must consider downstream (Scope 3) carbon emissions on the basis that their potential emissions were their actual emissions.

However, the courts will not necessarily accept or reject the substitution argument. When reviewing the use of such arguments by decision makers, most courts, and certainly appeal courts, are not deciding which substitution argument is the best approach to analysing downstream impacts, but whether the approach chosen is legitimate.

The problem is that most versions of the substitution argument have some legitimacy – they just vary in their assumptions or predictions about whether and how markets might respond to the sale of the coal.

The underlying problem

The challenge brought by this group of young people is innovative and bold, but I think the new path they have taken will lead eventually to the same swamp of substitution that has caused problems before.

The underlying problem is that we don’t have a comprehensive climate policy including a carbon budget. If we did, the question might be whether we should allocate a significant share of our budget to a coal mine (and, if the system allocates Scope 3 budgets to importing countries: do they want to allocate their carbon budget to importing more coal)?

At the end of the day, this challenge is another attempt to force our bottom-up project approval system to address what is really a top-down issue: what is our carbon budget and how should we allocate it?

You never know, this challenge just might rewrite the law books, and you can certainly understand why people keep trying, against the odds.

But it would be so much simpler if we just adopted a comprehensive climate policy.

Image by Steve Buissinne from Pixabay