Category: Peter Burnett

$78 Billion from a Nature repair market? Seriously? Tanya Plibersek’s Nature Repair Market Bill 2023

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By Peter Burnett

There’s no doubt that Tanya Plibersek is a serious environment minister. Not yet in office for 12 months, she has already made major policy commitments to conserving 30% of Nature by 2030 and to end human-induced extinctions by 2050; tabled the Nature Positive Plan reform package; and committed to resuming water buy-backs in the Murray Darling Basin.

But not everything a serious minister does is seriously good. In this blog I outline some serious doubts about the Nature Repair Market Bill 2023, which Plibersek introduced into Parliament in late March.

Plibersek’s bill is pretty much a rebadged version of the Agriculture Biodiversity Stewardship Market Bill introduced by Agriculture minister David Littleproud late in the Morrison Government. It’s also complicated, at nearly 250 pages of machinery and legalese.

Although the two bills are similar, the two ministers used different narratives, reflecting their different constituencies: Littleproud’s narrative was mainly about paying farmers to protect biodiversity rather than regulating them to do so. Plibersek’s narrative, on the other hand, is about stimulating private sector investment in Nature repair, because the task is too big for government.

Is a market in ‘Nature repair’ an oxymoron?

Markets are a mechanism in which people buy and sell things for private gain. If I buy a block in the bush, it’s mine to enjoy. But if I pay a farmer to plant native vegetation to provide habitat for native birds, everyone gets the benefit of any increase in biodiversity (ie, in ecosystem services).

So, who would pay for something that others get to enjoy for free?

Well, there are some public-spirited people out there. There are also some businesses who would like to enhance their social licence; if they buy Nature repair we all benefit, but the business gets a private gain on the side — enhanced social licence.

And then there are some business that need to buy some Nature, usually because a regulator has told them to offset some damage they are doing elsewhere.

So a Nature repair market is not an oxymoron; there are some buyers out there and sometimes there is a private gain attached to a public benefit. But I’ve always thought this was at the margins, a drop in the ocean compared to mainstream markets.

Not so fast, say Price Waterhouse Coopers, a ‘big four’ consulting firm. They’ve produced a report, A Nature-Positive Australia, which says that there could be $78 billion of private investments in Nature repair by 2050. That’s serious money — in comparison, PWC expect government expenditure (presumably from traditional government programs) over the same period to be $8.5 billion.

In other words, as long as governments ensure the right conditions for investment, you could multiply existing programs by a factor of about 10.

Tanya Plibersek says that’s not to be sneezed at, and so she’s legislating to help create just those conditions for investment.

Grains of salt

I can see a couple of problems here. The first has to do with the $78 billion figure.

PWC is a reputable firm, and they say they based their calculations on an OECD methodology. On the other hand, their report does not refer to any client, which means they are the client — ie, they published the report to promote their own business, which means we must take the $78 billion with a grain of salt.

A second problem has to do with the proposed nature repair market. Even if the number is accurate, the PWC report says their forecast is based three assumptions:

  • increased government regulation and prevalence of environmental impact assessment (EIA)
  • improved natural capital accounting (NCA)
  • clear mechanisms for financial returns.

I’m not sure whether there will be more regulation in the next 25 years, but we’ll give them the benefit of the doubt. Certainly we’ll have to improve the quality of our regulation, which probably supports the point they are making here.

As for improved accounting, Australia has been a leader in helping develop international NCA standards, but slow out of the blocks in implementing NCA itself. The government will have to get its skates on to replace our now-dated, and always underwhelming, national strategy.

Spanners in the mechanism

As for ‘clear mechanisms for financial returns’, the argument would be that the Bill will make it easier for farmers to sell some ‘Nature repair’ because it will allow them, for example, to plant some native vegetation and get a ‘Biodiversity Certificate’ from a regulator; this certificate can then be readily bought and sold. (I’ll stick with this example for the rest of this blog.)

The Bill allows the Clean Energy Regulator to maintain an online platform to facilitate trading. That’s like establishing a stock exchange to make it easier to buy and sell shares, although I have my doubts as to whether a regulator is the right person to facilitate a market. We’ll see on that.

At least the government is not coming from a standing start: when former Agriculture minister David Littleproud kicked of the predecessor Bill, he funded some pilot projects designed to stimulate the supply of certificates from farmers, including a National Stewardship Trading Platform, and Plibersek has kept these pilots going.

On the other hand, you could argue that all this artificial market stuff is unnecessary, that if businesses want to invest $78 billion in Nature repair they could just go to the existing market — eg, by buying land and planting vegetation, or by advertising for tenders to do the same. It’s the subsequent trading of such contracts that the bill facilitates, but is there a demand for such trading and is the bill up to the job?

I’m not sure the bill is up to the task of facilitating the repeated buying and selling of the biodiversity certificates. The legal reasons are a little complex, but boil down to the certificate being an item of personal property rather than an interest in land.

If the certificate were an interest in land (like a mortgage or conservation covenant), the certificate and the obligations to maintain Nature would always be attached to the land and the current certificate owner could always sue the current landowner if they were not looking after the planted native vegetation.

However, with the certificate being personal property, it gets more complicated. It’s a bit like pass the parcel: if the certificate had been traded five times and the land three times, all to different people, that’s two chains of contracts to unscramble if the current certificate owner wishes to enforce the obligation on the landowner to take proper care of the native vegetation.

Sure, they can tell the regulator, but some outcomes of regulatory action — eg, a fine or the cancellation of the certificate — could leave the native vegetation degraded and the certificate owner holding a worthless piece of paper.

How will this play out?

The Senate Environment Committee is conducting an Inquiry into the bill. Submissions close on 1 June. Once the Committee has tabled its report the government will start looking for the numbers to get the bill passed. If the committee finds problems like the one above, hopefully the government will agree to amend the Bill.

Amended or not, I expect the bill will sail through — with it being so similar to the earlier Littleproud bill, the Coalition will probably content themselves with a rhetorical ‘you stole our good idea’. It’s unlikely the government will need to do deals with the cross bench.

The much bigger risk lies in going live. At the end of the day, the market created by this bill is artificial and complicated. More importantly, the business case looks rubbery to me and there’s no sign yet of improved natural capital accounting to support the market. Even with this fixed, the government can build a marketplace, but will the buyers and sellers come?

Banner image: $78 Billion from a Nature Repair Market? Seriously? We’re all ears. (Image by David Salt)

Get the basics right for National Environmental Standards to ensure truly sustainable development

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Peter Burnett, Australian National University

Federal Treasurer Jim Chalmers has attracted controversy by proposing to update 30-year-old superannuation laws with a definition of the purpose of superannuation as being to fund a dignified retirement. There is a clear lesson here for other reforms to make policy objectives clear, even when they seem obvious. One important example is Environment Minister Tanya Plibersek’s Nature Positive Plan.

Plibersek’s department began consulting last week on new National Environmental Standards. She will table these later in the year, along with a bill to replace Australia’s most significant environmental law, the Environment Protection and Biodiversity Conservation (EPBC) Act.

The standards will be the “beating heart” of the reforms. They will set out in some detail just what has to be protected and the circumstances in which development can be approved. It is essential these standards rest on solid foundations, including a clear statement of purpose.

You may be surprised to hear mandatory standards are new territory for environmental laws regulating development. Existing federal and state laws are mostly built around regulatory process and ministerial discretion. Typically, they tell ministers to consider ill-defined principles like “ecologically sustainable development”, but lack any real “bottom line”.

This leads to “black box” decision-making, in which decisions are unpredictable beforehand and opaque afterwards. This lack of transparency does little for the environment, which continues to deteriorate due to increasing pressures from climate change, habitat loss, invasive species, pollution and resource extraction.

Tough calls ahead

Plibersek faces some tough calls in developing the standards. If strong and clear, they will protect nature and make it harder to get developments approved. But if the standards lack a clear statement of purpose and carry over rubbery phrases and weak offset requirements, then it will be business as usual, freshly wrapped.

For these new standards, we must get the basics right. One basic is to gather enough environmental information to make properly informed decisions.

The government is acting on this need with its plan to set up an independent environment protection agency (EPA), including a dedicated data division. However, it has yet to put serious money on the table. Making up for lost decades of patchy data gathering will be expensive and time-consuming.

Lack of clarity makes for ineffective law

Another one of the basics is to properly define ecologically sustainable development (ESD) as the foundation of environmental policy. The existing words on ESD in the EPBC Act are hard to divine. They trace their roots to the early 1990s and reflect the state of knowledge, and the compromises, of that era.

In fact, the EPBC Act does not even attempt to define “ecologically sustainable development”. Instead, it requires the environment minister to take into account five “principles of ecologically sustainable development”.

This disaggregation is part of the problem. Among other things, it forces the minister, in deciding whether to approve the clearing of koala habitat, for example, to consider an obscure principle that “improved valuation, pricing and incentive mechanisms should be promoted”.

This is a high-level policy principle advocating “market-based instruments”, such as a carbon price. It does not belong in a decision about clearing native vegetation.

I am now a researcher but in a former life (2007-12) was responsible for the administration of the EPBC Act. I have gone back over several hundred statutory EPBC Act “recommendation reports”. In these reports, environment officials provide formal advice to the minister about whether to approve a development.

I found very few instances where ESD principles made a substantive difference to the advice. It’s not surprising, given the obtuse approach of the legislation to ecologically sustainable development.

How to breathe new life into ESD

That is not to say we should abandon ecologically sustainable development. Properly defined, it can provide an overarching statement as to what environmental laws are designed to achieve and what development can be approved.

In the broad, ecologically sustainable development should mean keeping the environment healthy, so future generations can enjoy the same quality of life as we do. It would follow that development should not harm anything essential to a healthy environment.

It is important that we not simply roll the current principles into the National Environmental Standards without reflection.

One of the principles, the precautionary principle, can stand alone. It’s about risk management, to be applied when environmental knowledge is limited, which is often. It means, in context, that if a development risks serious or irreversible environmental damage, don’t approve it.

With that done, the central intent of ecologically sustainable development can be met by having the standards require that each decision maintain the diversity of life and the integrity of ecosystems affected by development. Ecological advice would be needed on how to do this in each case.

The gist of such a rule is to keep nature in good working order. That means maintaining viable populations of species and the essentials of ecosystems – their composition, structure and function.

The other three ESD principles deal with policy integration, intergenerational equity and market-based instruments. These principles are important but do not belong in the standards. They should be rehoused in a major policy statement, such as an environmental white paper.

It is often said with regulatory reforms such as the Nature Positive Plan that the devil is in the detail. That can be true, but in this case the devil is more in the basics. Get the basics right, and the rest is just detail.

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

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

Banner image: Image by Siggy Nowak from Pixabay

Whatever it takes, or just “whatever”? Biodiversity targets post Montreal

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By Peter Burnett

With some ambitious biodiversity targets negotiated in Montreal last December, now it’s time to translate these into action on the domestic front. The good news is that Australia was a leader in setting those ambitious targets. The bad news is the ambition may just be more hollow rhetoric.

Ambition at the 15th CoP

The 15th Conference of the Parties (CoP 15) to the global Convention on Biological Diversity (CBD) wound up its long deliberations in Montreal at the end of last year. It adopted a bold set of targets that needed to be met by 2030. While it didn’t receive enormous media attention back here, by all accounts one of the heroes of the hour was Australia’s environment minister Tanya Plibersek, who pushed hard for decisions with plenty of ambition.

After many years of bringing up the rear, it’s heartening indeed to see Australia returning to the leadership role first articulated by Prime Minister Bob Hawke in 1989.

That’s the good news. The bad news is that the CBD has form for adopting ambitious targets that nobody feels obliged to meet. Most countries, including Australia, have been long on aspiration and short on perspiration.

Will Tanya Plibersek also prove to be a biodiversity hero back home? I thought I’d go through the four goals and 23 targets adopted in Montreal to see what she’d have to do if she means business.

After all, 2030 is only seven years away and our current national biodiversity strategy is the most vacuous environmental policy I’ve ever seen, so there’s a lot of ground to cover.

Lofty goals and targets aplenty

The official CBD vision is that by 2050 we will be living in harmony with nature. The four goals adopted in Montreal in pursuit of this vision revolve around enhancing and restoring natural ecosystems and halting human-induced extinction. With this done, biodiversity should be used sustainably and the benefits of genetic resources shared equitably with Indigenous peoples. Finally, recognising the lack of effort to date, the fourth goal calls for adequate resources and increased capacity for implementation.

The four goals are in turn supported by 23 targets, grouped under three headings: reducing threats; sustainable use and benefit sharing; and tools for implementation. There’s too much to cover everything here, so I’ll cover what I think are the highlights.

The headlines are a ‘30-by-30’ target for land, freshwater and marine protected areas, and urgent action to reduce extinction risk, on a path to halting human-induced extinction by 2050. These are said to involve bringing biodiversity into spatial planning; preventing over-exploitation of wildlife; reducing new invasive species by 50%; eliminating risks from pollution; and minimising the impact of climate change and disasters.

Sustainable use and benefit sharing is said to require, not just management of wild species and ‘biodiversity friendly’ farming practices, but maintenance of ecosystem services such as ‘regulation of air, water and climate, soil health, [and] pollination’. For good measure, sustainable use is also said to require a significant increase in green and blue urban spaces.

When it comes to implementation, the specifics include getting large and transnational companies to disclose their impacts on biodiversity; halving global food waste; phasing out subsidies harmful to biodiversity; substantially increasing both government spending on national biodiversity strategies and private investment in Nature; payment for ecosystem services and ensuring ‘best-available data’.

What does all this mean domestically (and will Plibersek act)?

Even allowing for the usual mix of flowery language and weasel words, that’s a pretty hefty agenda.

Apart from core biodiversity actions such as increasing protected areas and increasing investment in restoration, pursuing the 2030 targets vigorously would bring biodiversity into a number of non-traditional’ areas for biodiversity policy — urban planning and development, pollution control, waste management, and corporate affairs, to name a few.

Plibersek has already made strong public statements about the 30-by-30 and no more extinctions targets. But can she deliver? And I mean in substance, not just in the fudging or ‘box-ticking’ sense.

For example, one fudge involves creating large reserves in places where there are few vested interests and voters. In that regard, Plibersek has just announced a tripling of the size of the marine reserve around Macquarie Island, creating a marine reserve the size of Germany.

As nice as that is, it makes me a little uneasy.

On the other hand, Plibersek has also shown signs of being a strong environment minister. In the same week she made good on her promise to use water ‘buy-backs’ if necessary, to meet the water savings targets of the Murray-Darling Basin Plan. That’s a move that will burn significant political capital.

Real world hurdles

If the minister is serious about the domestic delivery of the Kunming-Montreal 2030 targets, she’ll need to burn a lot more political capital, not just with various stakeholders, but with her own Cabinet colleagues.

Here’s three reasons, for starters.

First, biodiversity restoration is very expensive. The federal environment portfolio was run down by the previous government and competition for new funds will be cut-throat, given major demands in big-spending areas like aged care and defence.

Plibersek is attempting to overcome this with a Nature Repair Markets bill, designed to facilitate private investment in biodiversity. I’m just one of many who can’t see a business case for such investments, beyond the small amounts available from philanthropists and companies seeking to build their social licence. If business doesn’t come to the party, she’ll be back knocking on the Treasurer’s door.

Second, the states control most of the levers for on-ground action. They manage the lion’s share of Australia’s parks and reserves; they also make the planning laws and control most of the on-ground staff.

Traditionally the states oppose Commonwealth involvement in what they see as their backyards; they may be prepared to relent on this, but only at a significant price. That’s another path leading to the Treasurer’s door.

As for bioregional planning, while Plibersek has committed the Commonwealth and even has a ‘launch partner’ in Queensland, the going is likely to get very rough once people realise the constraints that need to be placed on development just to protect the Koala, let alone several thousand other threatened species.

The third reason is that halting threatened species extinctions is probably impossible, given we don’t fully understand the processes involved — the Red Goshawk for example is in serious decline, even though its main population is found in tropical savannah that is subject to relatively few pressures. If it went extinct tomorrow, the major causes might eventually turn out to be impacts that occurred decades ago.

“Whatever it takes” or just “whatever”?

The answer of some previous ministers to CBD targets has, in effect, been “whatever”. Plibersek seems to come more from the “whatever-it-takes” school, in which case she will need to pull some seriously large rabbits out of her political hat.

The alternative, down the track somewhere, will be that she (or her successor) will have to admit that the targets were just too ambitious, just like what occurred internationally with the 2010 CBD targets and the 2020 targets.

Apart from my uneasiness over Macquarie Island, I reckon the minister is showing real signs that she means business. Stay tuned.

Banner image: The official CBD vision is that by 2050 we will be living in harmony with Nature. Unfortunately, when it comes to the cut and thrust of realpolitik, Nature is rarely given a high priority. (Image by Ronny Overhate from Pixabay)

Nature Repair Market bill may repair the environment, but is it the Budget that will need repair?

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By Peter Burnett

Environment minister Tanya Plibersek’s draft Nature Repair Market bill, currently out for public comment, appears to form part of a ‘build it and they will come’ strategy on nature repair.

Right from her first domestic speech as Minister last July, Plibersek has said consistently that the environment is in a bad way and getting worse. And — citing an estimate of more than $1 billion a year to restore landscapes and prevent further degradation— that the cost of repair is beyond the capacity of governments alone.

Plibersek believes the answer lies in finding industry and philanthropic partners. She says that markets can put a value on improvements in biodiversity, enabling landholders to be paid for their services to nature and allowing businesses, among others, to invest in the biodiversity credits that landholders would produce.

The Nature Repair Market bill certainly aligns with this framing, but I don’t think the investors will come, at least not without inducements.

Let me explain.

Nature Repair Market Bill

The bill itself is very similar to the Agricultural Biodiversity Stewardship Bill introduced by then-Agriculture minister David Littleproud before last year’s election. It addresses what can be regarded as the five foundations of efficient and effective markets in nature:

  • standards, to guarantee that any credit given for repairing nature delivers genuine ‘additionality’ — ie, that nature really is enhanced by the action concerned and that the ‘benefit’ produced wouldn’t have happened without the action
  • methodologies, to allow experts on a Nature Repair Market Committee, including conservation biologists and ecologists, to spell out exactly what must be done to enhance nature in particular cases, whether by preparing the soil in a certain way, planting native species in a particular mix, or controlling for particular pests
  • certification by a Regulator, to ensure that repair projects are following the methodologies
  • implementation and compliance, to ensure the repair projects deliver the intended additionality in a measurable way
  • good governance, to ensure that all aspects of the scheme comply with the standards and are seen to be doing so; this requires strict role separation between minister the methodology experts and the regulator, as well as full transparency, so that market participants can see that the elements that give the credits their value are present at all times.

But the bill needs strengthening if it is to lay these five foundations in full. In particular, it comes with some ‘mutant DNA’ inherited from one of its forbears, the Carbon Credits (Carbon Farming Initiative) Act 2011. This DNA was injected by the Abbott government in 2014 and blurs some of the boundaries between the policy role of the minister and the independent expert role of the Nature Repair Market Committee.

The bill also needs more transparency. The underlying principle should be that everything the Committee does should be publicly available, with a few narrow exceptions such as confidentiality while methods are under deliberation.

No doubt the government will make some changes itself to reflect its recent in-principle acceptance of the recommendations of the recent Chubb Review into the integrity of carbon credits, but the underlying principle is that integrity must not only be achieved but seen to be achieved. Anything less rests on a slippery slope towards greenwashing and impaired value.

Then there is the task, once the bill becomes law, of getting a swag of methods approved. This will be much harder for biodiversity than for carbon: a tonne of carbon is a tonne of carbon, but a unit of biodiversity has dimensions in structure, composition, geography and even history, and so may need to be defined in ways specific to a bioregion, ecosystem or area.

Take for example a site that has undergone pasture improvement with the application of fertiliser over time. This site will be more difficult to restore to its original condition than a similar unfertilised site, and sowing seeds and planting native trees on both sites will lead to different biodiversity outcomes.

Come hither, philanthropists, investors, one and all …

At the end of the day though, the biggest challenge is not building the scheme, but getting investors to come.

Philanthropy in Australia is limited, while the business case for companies to invest in biodiversity to build social licence is also very limited. And companies that invest in biodiversity certificates to deliver offsets are compensating for losses they are causing elsewhere — so overall, they deliver no additionality.

I think the government is wedged. If the investors do not come, it could look at some form of compulsion, such as a development levy with an exemption for companies that purchase biodiversity certificates. Any measure of this sort would be political poison without an election mandate.

Alternatively, the government could do what other governments have done over the years — fudge their way through by failing to collect comprehensive data and funding small tree planting programs to apply a veneer of greenwash. Apart from the policy failure this represents, I think Plibersek has already nailed her ‘no fudging’ colours to the mast.

The final option is for the government to stump up a billion or so each year to buy certificates itself. A billion against the Budget as a whole is not much, but a billion from the much smaller pile of ‘new money’ that the government puts on the table each year is a big slice.

Any large biodiversity certificate purchasing program the government did consider would likely come at the expense of either another portfolio or the Budget bottom line, because the environment portfolio was so run down by successive Coalition governments. It would represent an embarrassing, though survivable, retreat from ‘build it and they will come’.

Keep an eye on the coming May Budget for a response to the wedge. Or a cupped hand to the ear for the sound of raised voices emanating from a certain room deep in a well- known Hill in Canberra.

Banner image: Tree plantings and shelterbelts on agricultural land near Canberra. Defining what a biodiversity unit consists of is only part of the challenge in establishing a market for nature repair. (Image by David Salt)

New ‘Big Agenda’ for Nature faces many hurdles

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By Peter Burnett

This is a version of an article published on 12 December 2022 in The Conversation; it contains some additional material.

The Albanese Government’s ‘Nature Positive Plan’ reform package last week, announced by Environment minister Tanya Plibersek last week, is a much-anticipated response to Professor Graeme Samuel’s 2020 Review of the Environment Protection and Biodiversity Conservation (EPBC) Act. It will be a major plank in the Albanese government’s 2023 agenda.

The plan is packed with policy announcements, most of which stick close to Samuel’s recommendations. Major stakeholders have welcomed the package, none more so than Samuel himself, who expressed ‘complete elation and unqualified admiration and respect’ for Plibersek.

The heart of the plan is a bold decision to drop the current ‘box-ticking’ approach to development approval. Instead, decisions must deliver environmental outcomes that reflect new national environmental standards.

As Plibersek puts it, the government now has a ‘big agenda’ supporting a vision of ‘net zero and nature positive by 2050’.

Dauntingly for her, the path of this big agenda stretches far over the political horizon and is littered with hurdles.

Here are ten hurdles the minister will have to jump, just for starters.

1. Climate trigger

The Greens and several cross-benchers have already criticised the absence of a ‘climate trigger’ in the reforms. This would expose large developments to having their carbon emissions limited as a condition of approval. Developments might even be refused for excessive emissions.

The government argues that regulation should not duplicate other measures, especially the safeguard mechanism, which already limits emissions from major facilities. Fair point, but so is the concern that Australia’s primary environmental law, designed to protect matters of national environmental significance, does not deal with the most significant environmental threat of all.

There is scope for a limited climate trigger, to fill gaps in climate regulation, so perhaps a deal will be done. Large-scale land clearing is climate-significant, but not regulated for carbon impacts. Similarly, Australia does not regulate large developments for their ‘scope 3’ downstream domestic emissions (eg, domestic gas production). Now that we have a Climate Change Act and an emissions budget, there is a case for a reserve power not to approve projects on the ground that there is no room left in this budget to accommodate these omissions.

2. Weasel words in the standards

Setting standards for nature-based decisions is cutting edge; the idea is to spell out exactly what a healthy environment looks like, and how much environment we need.

Samuel worked with stakeholders to include some draft standards in his report; in doing so he rightly counseled against ‘weasel words’ — words that rob the standards of their punch, like ‘as far as possible’.

But one person’s weasel words are ‘flexibility’ to another. It won’t be easy keeping the devil out of the detail.

3. Sell standards to states

To eliminate duplication, a major bugbear for business, the reforms provide for states to be accredited to take decisions that are otherwise for federal government, provided they meet the standards. If the states agree to meet the standards for federal decisions, environment groups may push to apply the standards to state-only decisions. States will resist being driven by federal policy.

4. Get into bed with states on regional planning

Regional environmental plans sit alongside national standards at the heart of the reforms. Standards will define what needs to be protected, while plans will say where protected values lie and how much protection is needed, on a traffic light system: red for irreplaceable, orange for values that can be offset, and green for minimal restrictions.

Federation makes it almost essential that the federal government partner with states in preparing regional plans. Plans could be based on Australia’s 56 Natural Resource Management regions or 89 bioregions.

Plibersek has moved early, signing an MOU with Queensland to work together on regional plans on the day she announced the reforms. Even so, this is a long and winding road — time-consuming, expensive and politically challenging.

5. Forest deal

Regional forestry agreements (RFAs) are exempt from the EPBC Act, though both have been criticised for similar failings: inadequate conditions on development, inadequately enforced.

The Rudd government dismissed a similar recommendation pre-emptively. Labor still remembers the 1995 ‘siege of Canberra’, in which logging trucks encircled Parliament House.

One can almost feel the rumble of logging trucks in the cautious language of the plan to ‘begin a process of applying’ the new national standards to RFAs, in consultation with stakeholders.

6. Respect Indigenous views and values

Professor Samuel was rightly passionate about bringing true respect for Indigenous views and values into the EPBC Act. The challenges however do not stop with respectful engagement.

The Rudd Government endorsed the UN Declaration on the Rights of Indigenous People (UNDRIP) and a Parliamentary Committee is considering its domestic application. A key UNDRIP principle is free, prior and informed consent. If we listen respectfully to Traditional Owners, but are told ‘no’, will this translate this into a veto?

7. Kick-start nature repair markets

The Albanese government has placed significant emphasis on the environmental role of the private sector, through ‘nature repair markets’. The plan promises to establish the functional components of these markets.

The government says it cannot foot the repair bill alone. That may be so, but the private sector is motivated by profit, supplemented at the margins by social licence and philanthropy. The government may build a market but with these motivations only a few will come. Often, there just is no business case for voluntary action.

It would be different if we put a price on biodiversity, as we briefly put a price on carbon but, thanks to Tony Abbott, that idea is ‘dead, buried and cremated’.

8. Offsets

Offsets seek to compensate Nature for approved loss, eg clearing habitat for construction. The compensation should be ‘like for like’, eg growing new koala habitat to substitute for cleared habitat. The bottom line is that if offsetting is not possible, nor is the development.

The plan will replace this last restriction with a rule that if offsetting is not possible, pay cash and proceed. Government will spend it on something else, applying a ‘better off overall test’ (BOOT).

If we run out of koala offsets, would feral cat reduction, which benefits quolls but not koalas, leave nature better off? Does the offset need to save two quolls for every koala lost, or is one for one enough? Tricky.

This policy would fit better with a policy goal of conserving whole ecosystems rather than individual species.

9. Build not just trust but support

Samuel found that all sides had lost trust in the EPBC Act. Some things are easily fixed. Full transparency, clear policies, reasons for decision given routinely.

Ironically, things that restore trust will tend to box decision-makers in, just as magicians would find it much harder to perform their tricks if we could see into the magic box.

10. Buckets of money

Of the many hurdles confronting Plibersek in the near term, the highest sits in her own Cabinet room, where she will seek funding in the 2023 Budget. One recent study found that federal and state spending, on threatened species alone, was 15% of what was needed.

Whatever funding is announced, history suggests it will fall several zeros short of what Nature needs.

Endurance race

The biggest problem with the EPBC Act has not been what sits within it, but what does not sit behind it. It has been chronically under-resourced and under-implemented. EPBC is a story of unrealised vision.

We cannot afford a repeat of the EBPC story — better to dig deep and make the Nature Positive Plan work.

Banner image: Image by Christel SAGNIEZ from Pixabay

The fifth and final transformation: Restoring trust in decision-making

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By Peter Burnett

This is the last of my series of blogs arguing there are five transformations implicit in Professor Graeme Samuel’s review of national environmental law,* to which the Albanese government will respond in early December.

The first four transformations were to:

The fifth and final transformation is to restore trust in environmental decision-making.

Trust makes the world go round

It’s true, trust makes the world go round.

Democracies in particular depend upon it. Just look at the polarisation, indeed tribalisation, that has occurred in the United States, culminating in the insurrection at the Capitol building in Washington on 6 January 2021.

Trust in government has declined in Australia as well. According to the respected Scanlan Research Institute, trust in the federal government (measured as people saying that they trusted the government at least most of the time) reached a low of 27% in 2013.

This recovered dramatically with the pandemic — trust in the federal government had more than doubled by 2020, to 55% — but it started to drop back again last year (48%). Even if trust were to stabilise around 50%, which seems unlikely, that’s not a great result.

There is no trust in our nation’s most important environmental law

Against that backdrop, it is not surprising that one of the main findings of the Samuel Review of the EPBC Act was that it was not trusted, either by business, who are regulated by the Act, nor by the wider community, who rely on it to protect the environment.

Business views the EPBC Act as cumbersome, involving duplication between federal and state systems; slow decision-making; and as facilitating legal challenges intended to delay projects and drive up costs for business (sometimes called ‘lawfare’).

Businesses are concerned in particular by long delays — for business, time is money.

A major project, such as a mine, can take nearly 3 years to assess and approve. For a business, this is far too long. Most people would acknowledge this.

The community on the other hand, are frustrated by the Act, viewing their participation as limited and process-oriented.

Often, people cannot see how the various environmental, economic and social considerations are weighed by the environment minister and are left with a general perception that outcomes are unclear, if not unsatisfactory. Compliance and enforcement are seen (rightly) as weak and environmental monitoring ineffective (also, clearly correct).

According to Professor Samuel, environmental groups often bring legal challenges because of these frustrations. They have the sense that decisions are out of step with community values, but do not have sufficient ready access to information to know exactly why.

Samuel’s recipe for restoring trust

Happily, Samuel had a recipe for restoring trust in the EPBC Act (or its successor).

His most important recommendation supporting trust is the fundamental shift from process-based decision-making to outcome-based decisions, applying the new national environmental standards (which I discussed as the first transformation). Standards would be supported by regional plans and stronger institutions, including information systems and compliance regimes.

If we had a set of environmental standards spelling out just what we need to protect and conserve, and knew that the environment minister was a) required by law to take decisions reflecting these standards and b) properly supported in taking those decisions by well-designed and well-funded systems, we could all sleep more easily.

But it’s not just the results that matter, but how we get there as well.

Professor Samuel’s other recommendations for restoring trust relate to efficiency, transparency and accountability in decision-making processes. He proposed:

  • Giving the community much more access to information, including Plain English guidance; opportunities to participate; access to information being considered; and routinely-given reasons for decisions.
  • A new and more influential set of statutory advisory committees, including an new and overarching Ecologically Sustainable Development (ESD) Committee to provide transparent policy advice to the minister on overall progress towards the outcomes set out in the standards
  • Adding ‘limited merits review’ (explained below) of development approvals to the existing broad standing of community groups to seek ‘judicial review’ in the courts (also explained below).

Judicial review, which is currently available for EPBC decisions, is the right to ask a court to overturn a decision, but only on the legalities — eg, that the minister failed to follow due process by not consulting everyone affected — and not on the merits, which concern the pros and cons of the final decision itself.

Merits review, often sought through a tribunal rather than a court, but not currently available for the most significant EPBC decisions, would get down to the pros and cons of the decision. Samuel’s ‘limits’ to this kind of review include confining merits review to decisions that have material environmental impacts and good prospects of success.

This is designed minimise review of minor decisions, or those that lack merit and promote delay.

For constitutional reasons Samuel could not simply recommend that the Parliament block all delaying actions by prohibiting access to the courts.

Will the cooks follow the recipe?

You have no doubt guessed from my description of Professor Samuel’s recommendations as involving ‘five transformations’ that I think his approach is ground-breaking.

As he himself hinted, the switch to a standards-based decision-making alone is transformative.

In this context, his further recommendations for increased transparency and accountability are icing on the reform cake. That’s not to say they are not important or long overdue.

But will the government go down this track? We’ll know very soon.

I think they will go for the general approach. However, the devil will be in the detail, especially in the detail of the standards.

The Morrison government pretended to start down the Samuel track by proposing an initial set of draft standards that simply repeated various process-based requirements from the existing EPBC Act. These ‘standards’ added nothing to existing rules and so would not have changed decisions. It was an attempt to pull the wool over our eyes.

If the standards-based approach is to work, it is essential that they spell out, in unqualified detail, exactly how much of the ‘matters of national environmental significance’ we must protect and conserve, if we are to maintain quality of life for ourselves and for future generations.

This will not be easy to do — hopefully our ecologists are up for the job!

We’ll also need some good lawyers — it is essential that the standards contain no ‘weasel words’, as Professor Samuel likes to say.

At the end of the day, people will only trust environmental laws that truly protect and conserve the environment. Transparency and accountability are important, but cannot carry the day by themselves.

Banner image: Trust makes the world go round. If the government wants trust restored in its national environmental law it’ll need to ensure it is efficient, transparent, accountable, but most importantly, that it delivers real outcomes. (Image by Tahlia Stanton from Pixabay)

Laying new foundations for environmental decisions: the fourth transformation

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By Peter Burnett

My recent blogs have argued that there are five transformations implicit in Professor Graeme Samuel’s review of national environmental law*, to which the Albanese government will respond in early December.

The first three transformations were to:

  • pursue pre-defined environmental outcomes rather than simply following legal process
  • take Indigenous knowledge and values seriously
  • simplify the processes of environmental regulation and harmonise regulatory outcomes between federal and state systems.

This blog concerns the fourth transformation, which is to lay new foundations for quality environmental decisions.

Money is the root of all … problems

One of the biggest problems with the EPBC Act is that it is a ‘jumbo jet’ of an Act run on a budget fit for a propeller-driven plane.

It has been like that during most of the 20+ years in which the Act has operated.

The original problem was that the environment minister behind the Act, Senator Robert Hill, pulled off something of a coup in getting the EPBC reforms through Cabinet and the Parliament. Many of Hill’s colleagues would likely have opposed the Bill if they had fully understood its scope and power.

As good as he was, Hill was not a magician and scoring a bucket of ‘new’ money to operate a new law with a much wider scope than the laws it replaced was a bridge too far.

The EPBC Act has had some particular financial ups and downs.

In 2007, after the Auditor-General criticised the poor implementation of provisions for protecting and conserving threatened species, the Act received a healthy injection of funds.

On the other hand, over the period 2013-2022, and especially following the notorious Abbott/Hockey ‘horror budget’ of 2014, resources for the environment portfolio, including the EPBC Act, were cut by around 40%.

The new Albanese government has just put some money back in, but it has started from a very low base. The Act remains significantly under-resourced.

Every Act has its consequences (or not) …

The consequences of this long-term underfunding, compounded in some cases by lack of political vision or will, are that many of the foundations of the current system of protection and conservation provided for by the EPBC Act are either significantly under-done, or not done at all.

Three of the most important identified by Professor Samuel were environmental information, compliance and enforcement, and environmental planning.

He described the collection of data and information as ‘fragmented and disparate’, while compliance and enforcement had been ‘limited’ and lacked transparency.

As for planning, while the Act includes a full suite of planning provisions, Samuel found that these provisions had yielded only piecemeal approaches and ad hoc efforts at coordinated national action.

For example, ‘bioregional plans’ prepared for four of Australia’s marine bioregions have never been updated, while no bioregional plans had been prepared for any of Australia’s 89 terrestrial bioregions.

In many respects such ‘under-institutionalisation’ is a perennial problem in Australian environmental policy. So perennial in fact that (ANU) environmental policy expert Professor Steve Dovers even had a name for it: ‘policy ad-hocery and amnesia’.

Of course, this doesn’t excuse such failures.

Samuel’s fix

As we’ve seen, Professor Samuel’s proposed fix is built around the new concept of national environmental standards.

If we are to avoid the ‘on paper, but not in practice’ problem of the current law, the standards will need to be complemented by a range of supporting institutions. Samuel made a number of recommendations in that vein, including:

  • Extending the concept of national standards beyond on-ground environmental outcomes, to deal with requirements for transparent processes and robust decision-making, including environmental data and information; and compliance and enforcement
  • A national data supply chain, managed by a supply chain ‘Custodian’, guided by a strategic plan and supported by adequate investment in new information systems
  • Independent compliance powers for the environment department, with increased transparency and accountability; and adequate resources
  • A new set of planning tools which emphasise strategic approaches at national and regional levels

To go beyond regulation and encourage investment in restoration, Samuel also recommended establishing a central Trust to coordinate public and private investment. While he didn’t mention money every time he made a recommendation, there is a clear sense in his report that none of this will work unless properly funded.

Over to you Tanya

Although environment minister, Tanya Plibersek has spoken positively about implementing the Samuel reforms, there remains a significant risk that this government will repeat the mistake of the Howard government by enacting laws that are strong on paper but weak in practice.

Putting a stop to the long-term decline of Australia’s environment will take a political courage, persistence and (last but not least) major investment.

It is notoriously difficult to obtain ‘new’ money in a government Budget. The lion’s share of expenditure is already baked-in and there are many competing commands for any remaining Budget ‘headroom’.

Plibersek is about to announce the government’s design for the next generation of environmental regulation. Even if it looks very different to the EPBC Jumbo, I’m guessing the design will still be in same ‘heavy lift’ Jumbo Jet class.

But will there be provision to fill the fuel-tanks and a hire a full complement of crew?

* Independent Review of the Environment Protection and Biodiversity Conservation (EPBC) Act, 2020.

Banner image: Australia’s national environmental law was sold to us as a ‘jumbo jet’ set of protections… but then they only provided enough funds to run a propellor driven plane.
(Image by Anja from Pixabay)

Simplicity, harmony and the third transformation

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By Peter Burnett

My recent blogs have argued that there are five transformations implicit in Professor Graeme Samuels review of national environmental law, to which the Albanese government is about to respond.* The first transformation was to be driven by environmental outcomes rather than processes, while the second was to take Indigenous knowledge and values seriously.

Today I write about the third transformation, which is to simplify the processes of environmental regulation and harmonise regulatory outcomes between federal and state systems.

No more picking cherries

Proposals for regulatory streamlining, and for the alignment of federal and state environmental assessment laws, have been floated at various times over the last 30 years. Yet this goal remains elusive. Most recently, the Morrison government tried to pass streamlining amendments to the EPBC Act, but failed in the Senate.

The problem with the former Prime Minister’s proposals was that he picked the cherries (as he would have seen them) from the reforms proposed by Professor Samuel and pushed the other reforms out into the never-never. One of the messages from the (previous) Senate was that a majority of Senators wanted action that was comprehensive, not piecemeal.

Morrison’s reforms were dressed up as streamlining; however, they were better described as a devolution of responsibility from the Commonwealth to the states. Vacating the field is not a solution to duplication (at least, not here).

To my observation, the former Prime Minister didn’t have an environmental bone in his body. I’m convinced that he wanted to achieve ‘single touch’ approvals by simply extracting the Federal government from environmental decision-making as far as possible, rather than by negotiating a genuine compatability of different systems.

Officially, maintenance of environmental standards was part of the deal. In practice, it was a hollow promise: Morrison’s initial set of draft ‘standards’ were just a collection of process-based words taken from the existing law. They would have guaranteed nothing in terms of outcomes.

Easy as 1, 2, 3 …

In contrast, Graeme Samuel recommended a harmonising of both environmental processes and outcomes between federal and state jurisdictions. This is a much more ambitious proposal, although it’s easy enough to summarise.

In effect, Samuel wants to transform not just federal environmental regulation, but state regulation as well. His template is easy as 1, 2, 3:

  1. Develop national standards for ecologically sustainable outcomes and give these standards shape locally through regional environmental plans
  2. Build a leading edge, risk-based decision-making system, including comprehensive environmental information, extensive policy guidance, streamlined processes and strong quality control
  3. Accredit states to take most of the decisions, which should be easy because everyone will be singing from the same song-sheet!

But in practice …

Step 2 is perhaps the easiest of a difficult bunch. With enough time and money, information systems can be built, processes automated, helpful policy guidance prepared, and so on. All this would speed up decision-making but alone it doesn’t remove duplication or guarantee improved environmental outcomes.

It’s the harmonised standards that holds the most potential. If the standards were sufficiently high to stop environmental decline and the environmental planning processes met the standards, the feds really could accredit the states and then drop back to a ‘trust but verify’ brief.

The major challenge lies with securing the necessary genuine federal-state partnership to deliver on this ambition. The underlying problem is that, constitutionally, Federal and state environmental responsibilities overlap and, with the possible exception of the Morrison proposals above, neither side wants to play second fiddle to the other.

At first glance, the states are responsible for managing the major components of the environment — land, water and air.

However, environmental problems have been recognised increasingly over the last 50 years as ubiquitous and broad-scale — often national, sometimes global. As the pioneering ecologist Barry Commoner put it in the 1970s, ‘everything’s connected to everything else.’

Federal responsibilities for international matters, along with the federal government’s ability to use non-environmental powers such as its power to regulate corporations, have enabled the Commonwealth to deal with concerns such as the extinction of species, by overlaying State land-management responsibilities with internationally- and nationally-driven policy imperatives.

In response, the states have pushed back against what they see as creeping federal control, and continue to do so.

Another problem is that although Samuel’s proposed national standards are, on their face, for federally-protected matters only, if the states were to sign up to them to secure federal accreditation, it would be hard for them to apply lower standards to the rest of the environment.

To adapt Alfred Deakin’s famous 1902 prophecy about Commonwealth dominance in fiscal matters, the states could find themselves, ‘legally free but environmentally bound to the chariot wheels of the central government’.

Hardly a recipe for success, is it?

Yet I think Samuel’s policy prescriptions are the right ones. The threats posed by environmental degradation operate at landscape, if not global, scale and are, ultimately, existential, as is becoming increasingly obvious as more and more ordinary Australians feel the impacts of extraordinary natural disasters.

And the solution is …

We simply have to find a way to unravel this impossibly-intricate Gordian knot of a problem. These problems are wicked enough without adding inconsistent and even conflicting regulation to the mix.

Tradition has it that Alexander the Great solved the problem by drawing his sword and cutting the knot. Might Tanya Plibersek turn out to be a modern Alexander?

Stay tuned for my own Alexander-like solution in a forthcoming blog.

* Independent Review of the Environment Protection and Biodiversity Conservation (EPBC) Act, 2020.

Banner image: So much complexity, so much variation in the manner in which the federal government and state governments regulate the environment. What would it take to wipe the slate clean and start afresh? (Image by David Salt)

Taking Indigenous knowledge and values seriously: The second transformation of national environmental law

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By Peter Burnett

In an earlier blog I argued that Professor Graeme Samuel’s 2020 review of the EPBC Act amounted to a call for five transformations in national environmental law. Last time I wrote about transforming a system that is focused on process to a focus on outcomes. Today I write about the second transformation.

Something really struck me about Anthony Albanese’s election-night victory speech last May. After the usual ‘humbled by victory’ thank you, and the standard ‘bring Australians together’ call for unity, Albanese launched into what sounded like the passionate policy speech he had wanted to give all along, but couldn’t, because of Labor’s ‘small policy target’ strategy.

Warming up as he tripped across our future as a ‘renewable energy superpower’ and a more ‘just society’, Albanese reached full voice with:

And together we can embrace the Uluru Statement from the Heart. We can answer its patient, gracious call for a voice enshrined in our constitution. Because all of us ought to be proud that amongst our great multicultural society we count the oldest living continuous culture in the world.

After the frustrations of weeks of restrained ‘don’t frighten the horses’ language (central to their election campaign), it was a relief to hear this leadership.

I also felt that the ground had shifted. Just as the election of the ‘Teal’ independents expressed our national desire, finally, to address climate change properly, Albanese’s confident commitment to the 2017 Uluru Statement marks, in my opinion, our desire to take the next major step towards reconciliation with our First Nations people.

When the ground shifts, everything moves

The implications of this commitment don’t stop with a referendum on an Indigenous ‘voice’ to Parliament. Or even with the other elements of the Uluru statement, truth-telling and treaty.

With Rio Tinto’s 2020 destruction of the Juukan Gorge caves still fresh in many memories (an act done with the ‘consent’ of the Traditional Owners), Graeme Samuel’s strong criticism of Indigenous tokenism in his review of the EPBC Act, and his implicit call for a transformation in environmental policy to take Indigenous knowledge and values seriously, now feel mainstream.

Mainstream such sentiments might now be, but integrating them into our national environmental law is still complicated and challenging.

Providing for ‘respectful consideration of Indigenous views and knowledge’ will take time and investment. Indigenous knowledge doesn’t grow on trees and respectful engagement will have to move at a pace with which Indigenous people are comfortable.

It is the same with our Indigenous heritage protection laws, which don’t just need to protect Indigenous values and set national standards, but fully resourced; and that includes building capacity for extensive and respectful engagement.

This is where the 2020 Juukan Gorge disaster showed up major weaknesses in the existing system. The caves in the gorge were probably eligible for protection under a National Heritage listing, but no-one had nominated them.

There was also a safety net: an old and supposedly temporary law from the 1980s allowed the environment minister to issue an Aboriginal heritage protection order, provided the place was under threat. But when lawyers for the Traditional Owners called the minister’s office about invoking that law to save the Juukan Gorge caves, the minister’s staff failed to put them onto the right officials.

So, no application was made.

We can’t let important values fall through the cracks because we were waiting for Indigenous people to fill-out a white-culture nomination form, or because someone rang the ‘wrong’ phone number.

Finally, Samuel recommended a move to true joint management of federal national parks on Indigenous land, such as Uluru-Kata Tjuta. Again, this will require significant capacity building. As he put it, ‘the magnitude and significance of a transition to greater decision-making for Traditional Owners should not be underestimated.’

It doesn’t stop with EPBC

Taking Indigenous knowledge and values seriously in environmental policy is not limited to the transformation recommended by Professor Samuel under the EPBC Act.

Now we need to implement the United Nations Declaration on the Rights of Indigenous Peoples (UNDRIP).

When UNDRIP was first adopted by the UN in 2007, Australia was one of only four countries to vote against it. Thankfully, we reversed our position only two years later.

Now, belatedly, a parliamentary committee has started looking at UNDRIP’s domestic application.

This declaration raises a lot of issues, but I’ll zero-in on the clause that links most strongly with the EPBC Act.

Article 32 states that Indigenous peoples have the right to control development or use of their lands and other resources. Specifically, for development projects such as mines or roads, it requires governments to:

consult and cooperate in good faith with the indigenous peoples concerned through their own representative institutions in order to obtain their free and informed consent prior to the approval of any project affecting their lands or territories and other resources. [Emphasis added]

The implication is that, in addition to the respectful engagement proposed by Professor Samuel, Traditional Owners should have a right to veto developments.

The brings in the Native Title Act, which gives native title holders a ‘right to negotiate’ but not a veto.

This Act is complex but, in general, if negotiations over, say, a proposed mine, are unsuccessful, the matter will go to arbitration. In theory, an arbitrator such as the Native Title Tribunal could stop a mine from going ahead, but the more likely outcome is that development will proceed under conditions, which might include negotiated compensation.

Where is all this going?

The Indigenous affairs agenda for 2023 is looking packed.

In addition to the referendum on the Voice to Parliament, the government’s environmental package based on the Samuel Review will, hopefully, transform environmental law concerning Indigenous knowledge and values, as Samuel recommended.

We may even see a change to the Native Title Act to give native title holders the right to veto proposed developments.

These reforms are not just politically ambitious, but resource-intensive. The political passion the Prime Minister displayed on election night will need to extend to opening the national wallet!

Banner image: Kata Tjuta in the Northern Territory. Graeme Samuel recommended a move to true joint management of federal national parks on Indigenous land. (Image by sgrabus from Pixabay)

Getting results: the first transformation of our national environmental law starts with ‘standards’

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By Peter Burnett

‘All that’s gold does not glitter’.

So opens the poem that Bilbo Baggins, a Hobbit, wrote to his cousin Frodo, the hero of Tolkien’s Lord of the Rings.

In my last blog I argued that, underlying the definitely non-glittering recommendations of the Samuel Review of Australia’s main national environmental law, the Environment Protection and Biodiversity Conservation (EPBC) Act, lay policy gold, a call for five major transformations in law and policy.

The first of these was to shift from a regulatory regime that was prescriptive and focussed on processes, to one built around the setting and pursuing of national environmental outcomes.

In doing so we would get away from our current ‘box-ticking’ approach to regulation, under which decision-makers (typically the environment minister) consider various factors such as biodiversity loss and the precautionary principle but, at the end of the day, decide pretty much anything they want to.

The main driver of this shift in Professor Samuel’s recommended reforms is the creation of statutory ‘national environmental standards.’

Standards both old and new

We are already used to environmental standards in dealing with certain issues. We have, for example, had standards for ambient air quality and contaminated site remediation for decades.

But we have gone down a different track with nature conservation. Early battles focused on saving precious places from development and indeed the environment movement in Australia was built on some of these, such as the (unsuccessful) fight to save Lake Pedder in the 1970s and the (successful) fight to save the Franklin River in the 1980s.

These were more battles of the heart than the head.

Things shifted in the 1990s. Under the banner of ‘sustainable development’, or, in Australia, ‘Ecologically Sustainable Development’ (ESD), we became more focused on conserving entire landscapes and ecosystems.

But we struggled to pin down exactly what we were trying to achieve. Unable to answer the question, ‘how much environment is enough?’, something we could have worked out if we had done enough science and environmental monitoring, we defaulted to a legalistic approach in which we asked decision-makers to ‘consider’ or ‘have regard to’ certain principles such as precaution or intergenerational equity.

The trouble with such principles is that they are too general to serve as standards and instead become ‘mandatory considerations’ in discretionary decision-making (ie, boxes to be ticked).

The only real limit on this discretion-based decision-making is the ability of the courts to strike down a truly egregious decision on grounds of ‘irrationally’.

The first transformation

Discretionary, bottom-up decision-making is no way to achieve a consistent and ecologically sustainable outcome. Professor Samuel therefore recommended flipping the system on its head: spell out what an ecologically sustainable environment looks like, partly through National Environmental Standards and partly through a comprehensive environmental planning regime, and then require that individual development decisions comply with these standards and plans.

Although transformative, this change seems straight-forward enough; why haven’t we been doing this all along?

One reason is ‘path dependency’. Because many conservation problems first emerged as place-based or issue-specific concerns, we started dealing with them on a reactive, case-by-case basis. This is how our system deals with most issues, environmental or otherwise. As such it was as comfortable as a pair of old slippers — and in we slipped.

Another reason is that we haven’t had the comprehensive environmental information or the deep ecological understanding we needed to draw a line between harm that ecosystems can absorb without losing their identity (resilience), and harm that they cannot absorb. We still can’t do that precisely, although technology and good science have brought us a long way.

More significantly, it is only now that most members of the political class, and indeed a majority in society, are coming to understand and accept that if we don’t act soon, it may be too late.

What would these standards look like?

If standards are central to halting environmental decline, what would they look like? Well, the devil is in the detail, but Professor Samuel included some draft standards in his report, so I’ll use elements of the threatened species standard to give you a brief taste.

In part, this draft standard just repeats some existing formulae, for example that approved developments should not be ‘inconsistent with’ relevant recovery plans.

On the other hand, it also introduces new requirements. One of these is that decisions must take cumulative impacts into account. Another is that decisions must avoid adverse impacts to critical habitat and ensure ‘no net reduction’ of critical habitat.

Note the use of the word ‘net’, which implies that environmental offsets could be used.

So, would they work?

My general view is that Samuel’s draft standards would deliver significant marginal gains, but are not worded tightly enough to halt further major environmental decline.

Just looking at the examples above, I think the following changes (and complementary measures) are needed to make the standard strong enough to halt decline:

  • it is not enough that developments ‘not be inconsistent with’ recovery plans — they need to comply with plans; moreover, the plans themselves must spell things out with much greater precision than existing plans, eg by mapping critical habitat to be protected
  • taking cumulative impacts into account is a significant advance, but doing so requires a major national exercise in gathering and maintaining environmental data over time
  • if a species is to recover, decision-makers must not approve impacts to critical habitat, rather than simply ‘avoiding’ them
  • further, if there is to be ‘no net reduction’ in critical habitat, then offset rules would have to be so stringent that I doubt whether they can be met in practice, which probably means that the word ‘net’ should go from this requirement.

And will standards become reality?

Having National Environmental Standards would be truly transformative for environmental decision-making and in my view they could indeed be policy gold, as long as we get the detail right.

By the same token, standards lack lustre for a reason. As you can see from these brief examples, formulating the right words of protection is not that hard. The real challenge is to build political support for the tough decisions that strong standards imply.

Banner image: Good clear environmental standards could provide a pathway to transform our national environmental law into something that makes a real difference. (Image by David Salt)