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

Have I got a (new green) ‘deal’ for you

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Open your eyes to a new framing for environmental reform and you’d be amazed what can be achieved.

By Peter Burnett

Reform is tough and environmental reform is no exception. It’s tough because the choices on the table almost invariably involve looking at the status quo, figuring out the trade-offs, and revealing winners and losers. The losers often use, or threaten to use, their political power to try and block the reform. As a result, instead of transformative and enduring change, we usually end of up with incremental shift that solves little.

But it may not have to be this way if we enter the reform process with a different framing of the problem and potential solutions. I’m going to try some reframing here by building on two things: overlaps in ecological and economic thinking and a change in Australian political culture produced by the pandemic. What might be achieved if this reframing was applied to the current review of the EPBC Act (Australia’s premier environmental law)?

On free lunches

Writing nearly fifty years ago for a public that was showing unprecedented concern about a degrading environment, ecologist Barry Commoner explained ecology by formulating four simple laws.

The first was ‘everything’s connected to everything else’. The second and third were ‘everything must go somewhere’ and ‘nature knows best’.

The last law was already familiar to economists: ‘there’s no such thing as a free lunch’ (which, by the by, also happens to be the slogan of our blog).

Economists had long recognised that every choice involves costs, starting with the opportunity cost of not doing something else. A choice to commit resources to one project inevitably means that those resources are no longer available for another.

Commoner was simply pointing out that environmental choices have a cost too. To take a straight-forward example, the more we use the airsheds above our cities as a sink for pollution, most of which comes from vehicles, the less those airsheds can do for us in supporting health and amenity. While we can certainly opt for some of each, the laws of nature preclude us from having both – there’s no such thing as a free lunch.

The facts of life

These ‘facts of life’ often leave us making binary choices and trade-offs (more of this and less of that). We can’t avoid choices, but sometimes we can change the facts that we are choosing between by reframing the problem.

Consider this energy example: developments in battery technology have made electric vehicles a feasible alternative to vehicles powered by fossil fuels. But they cost more, at least for the time being.

Returning to our urban air quality example, instead of choosing between driving more kilometres and reduced air quality, we could decide that high pollution levels are unacceptable and take polluting options off the table. Instead, technology would now allow us to frame our choice as between restrictions on (fossil-fueled) vehicle use and the cost of switching to (unrestricted) electric travel.

Yet we tend to stick to traditional framings. New approaches can be expensive and risky, or challenging to assumptions, values and interests. Consider our last federal election. The Opposition put forward a policy promoting electric vehicles; the government ran a scare campaign somehow connecting this to tradies losing their (fossil-fueled) utes.

Same old, same old

You see this phenomenon in politics all the time. It’s much easier to frame a debate in traditional ways than to risk rocking new boats or getting lost in complexities.

Take the current review of Australia’s national environmental law, the Environment Protection and Biodiversity Conservation (EPBC) Act, best known for requiring environmental impact assessment (EIA) of developments affecting threatened species and other ‘matters of national environmental significance’. The review is led by Professor Graeme Samuel, a commercial lawyer and regulator.

You can see the arguments playing out in the media. Pro-development interests emphasise the cost of duplication and delay while sloganeering about cutting green tape, while pro-environment groups argue that the current law has failed to slow accelerating environmental loss, while also demonising big business.

Same old arguments, same old replies.

Slogans aside, both sides are right. There is duplication and delay between federal and state EIA, and the EPBC Act is failing to put a measurable dent in environmental decline. If ever there was a time to attempt a reframing of the debate, surely this year, one of unprecedented bushfire crises and an economy king-hit by COVID-19 and in need of some wins, is it.

An inter-connected whole

There is another approach, a deal to be done here, but we’d have to think differently about how we do government.

Everything’s connected to everything else. Not just in the physical environment, but in the way we manage things in a federal system, which prefers to slice the environmental cake neatly into Commonwealth and State slices.

Back in the early 1990s we dealt with this problem through COAG (the Council of Australian Governments), drawing up an ‘Intergovernmental Agreement on the Environment’.

With that agreement moribund, it’s time for a new one. The trick would be for both levels of government to agree that the environment is an inter-connected whole, requiring a common policy framework and a shared commitment to high standards of conservation.

Implementation would be based on three main principles: scale, planning and cooperation.

The first is the principle of scale. This would see the Commonwealth focusing on the issues of largest scale, whether in terms of geography, politics or environmental significance, while the States would focusing on issues of regional and local scale. So the Commonwealth would lead on climate change for example, while the States would focus on development approval and catchment management.

The second is to plan, with those plans taking a proactive stance, a bias to conservation. This would involve preparing regional plans, which would protect areas of high conservation value while also identifying priority degraded areas for restoration.

The States would prepare these plans but the Commonwealth would accredit them as protecting matters of national environmental significance appropriately. It would then back that protection with investments, large ones; enough to restore environmental function to the point of resilience.

In return for legally binding State protection of its interests, the Commonwealth would bow out of EIA completely, saving considerable time and resources.

The third principle is good old-fashioned cooperation. This is never easy in a federal system, because the practical incentives to cooperate are often trumped by the political incentives of playing for advantage.

Not always however. As COVID-19 has shown, where there is real common cause, politicians of all stripes can get along famously.

Not a ‘Green New Deal’ but a new ‘Green Deal’

For this approach to work we’d have to agree that the environment is so important that federal-state politicking should come second. No easy task. We could start by asking independent statutory bodies like the Bureaus of Meteorology and Statistics to gather and hold environmental information, and to produce environmental accounts. This would guarantee an expert and impartial foundation of information for informed decision-making.

After our deadly Black Summer most people agree something needs to change.

In the Depression-era USA, President Franklin D Roosevelt enacted a wide-ranging and radical set of economic and social programs called the ‘New Deal’, to enable his country’s recovery. Currently there is much talk in the US about a ‘Green New Deal’ that will address climate change and economic inequality. This talk has spread to other countries, including Australia.

While the ‘Green New Deal’ might be seen as a project of the Left, could it be that in this extraordinary year of environmental, health and economic crises, the time for a new framing, a ‘New Green Deal’ has come?

The choices might still be hard but at least the trade-offs would be different. It’s at least time to start talking about it.

Image by FreePhotosART from Pixabay

Is a positive environmental narrative possible?

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Maybe we should be turning to hope rather than fear

By Peter Burnett

One of the challenges of working in the environmental field is that both the news and the prospects are almost relentlessly negative. Bad things have happened and there’s much worse to come.

The public don’t like it either. There is research suggesting that trying to promote policy and behavioural change through fear, by warning people of likely environmental disaster, does not work and can even be counterproductive.

This made me wonder whether our environmental situation can be compared to Elizabeth Kubler-Ross’ stages of grief, experienced by people diagnosed with a terminal illness. The first two stages are denial and anger, words which seem to describe climate change denialism quite well.

If this is right, the obvious solution for those trying to build public support for stronger environment policy is to identify positive narratives that are based on hope rather than fear. I thought I’d look at some positive narratives to see whether they might provide support for better policy in Australia. I’m hoping this is more than just wishful thinking.

Imports down, national security up

The first narrative concerns import substitution. Although we produce a reasonable amount of oil, we export three quarters of it and import more than 80% of what we consume. This is because ‘oils aint oils’; different grades of oil are used for different purposes.

If we could replace imported oil with renewable energy, mostly by switching to electric vehicles, there’d be a double benefit, not including environmental gains.

Replacing an imported energy with renewable energy from local sources would improve our balance of payments, which is good for the economy. We could spend our import dollar on other things.

It would also benefit our national security by reducing our dependence on other countries, and thus our foreign policy concern with the Middle East, long an area of instability.

In particular, it would largely remove the need for us to hold a three month supply of oil in reserve, just in case international supply chains were disrupted. This is a policy that members of the International Energy Agency adopted in the 1970s after the first global oil crisis, brought on by OPEC countries imposing an oil embargo in response to the Yom Kippur war.

Australia has not been complying with this obligation in recent years and is taking advantage of the COVID-19 crisis to play catchup by buying cheap oil and storing it in America until we can build enough storage here.

Post-carbon superpower

The second narrative is based on reshaping the domestic economy. In his 2019 book Superpower, Ross Garnaut argued that Australia’s wealth of renewable resources offered it an unparalleled opportunity to become an energy superpower in a decarbonising world.

His most powerful argument was that because green hydrogen (hydrogen produced from renewable energy) was best used at source rather than exported (because liquefying hydrogen for transport is energy-intensive and costly), we could shift from exporting mineral ores such as iron and aluminium, to refining those ores into metals domestically.

Recently, the Grattan Institute has buttressed this argument. In its report Start with Steel Grattan argues that, instead of exporting green hydrogen, we should use it to make ‘green steel’. Green steel is made by using hydrogen, rather than coal, to strip the oxygen out of iron ore, leaving water as the by-product rather than carbon dioxide. The metal is then refined into steel.

This is only the most prominent example. Australia’s wealth of mineral and renewable resources would allow us to move up the supply chain in a range of high tech, low carbon, industries, such as producing batteries for electric cars.

Yes we can!

I have called the third and most recent positive narrative to emerge ‘yes we can’, after President Obama’s 2008 campaign slogan.

Although the COVID-19 crisis has been both a health and economic disaster, it has produced some unexpected positives.

One is national cooperation, led by a new body, the national cabinet. Another is public cooperation, manifested through high levels of compliance with the draconian restrictions associated with lockdown.

While it is too early to tell, it seems that the political ground may have shifted because of the virus. Commentators are talking about proceeding with reforms that, until recently, were gridlocked politically, like tax reform, all in the interests of helping economic recovery.

Beyond reforms related directly to economic recovery, I detect at least some sentiment that if we can cope with corona we can cope with other things too, so let’s make the most of the opportunity and deal with other threats as well.

This is the most tenuous of the three narratives.

Where to from here?

All three narratives are real and, for added effect, they could all be developed at once, as they are complementary.

This does not mean any of them will gain traction. They are only part of the recipe.

The missing ingredient is political will, which will emerge only with political leadership (a ‘pull’ factor) or a groundswell of public opinion (a ‘push’ factor).

Moreover, it seems equally likely that negative environmental narratives could gain traction, for example that economic recovery requires ‘sacrifices’, including the by-passing of any environmental concern that would delay a development approval.

However, I think you can see just from the examples I have provided here, positive environmental narratives are not only possible, they are viable.

Maybe we should be asking ourselves what we need to do to make them real.

Image by Colin Behrens from Pixabay

Joining the dots (again) on Sustainability Bites

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66 bites / 5 sustainability themes / the story continues

By David Salt

In a world staggering from one crisis to the next, stricken with plague and quarreling over solutions, where lies the true path to sustainability? Have we got a story for you, and we present it in 66 compelling chapters.

But can we sustain it

When we began Sustainability Bites I’m not sure how long Peter or I thought we could sustain it. It was a nice idea to write up our reflections on sustainability but how many blogs did we have in us? What would run out first: ideas, enthusiasm or available time?

Well, as it has turned out, we’re still putting them out a year and a half later. Indeed, we’re two thirds of the way to cracking a century!

I attempted to reflect on possible emerging themes arising from our musings back when we had completed 33 blogs (a third of a century; see Have we bitten off more than we can chew?), and I thought I’d repeat the exercise now at 66.

Back at blog #33 I suggested I could see five themes constantly emerging in our commentaries:
1. The challenge of change (and the importance of crisis);
2. The culture of science (and its failure to influence policy);
3. The burden of politics and ideology (frustrating the development of good policy);
4. The value of good policy; and
5. The importance of history.

Well I think these five overarching themes still apply to our musings but I’m happy to say I don’t think we’re simply rehashing the same words over and over again.

History in the making

Our first 33 blogs set out what we believed sustainability involved, with commentaries on how governments here and overseas (though mainly Australian) were tackling the goal of sustainability. We reflected a little on the history of sustainability, called out inconsistencies between government rhetoric and action, and delved in to the ideology and culture of science and politics.

I’ve listed those first 33 stories at the end of this blog in the order they appeared (Appendix 1) with links to each piece if you see something that catches your interest that you may have missed first time round (or maybe you only started following us recently).

Our second tranche of 33 essays covered the same basic ground but were developed in a time when sustainability policy seemed to go through enormous upheaval and contention as our nation endured disaster after disaster.

The big stories we commented on in several ways in our second 33 blogs included:
-the review of Australia’s premier environmental law, the EPBC Act
-the growing societal rejection of government inaction (and denialism) on climate change
-a season of unprecedented wildfires (and the politics it provoked)
-the collapse of the Great Barrier Reef
-the consequences of the pandemic on business as usual; and
-the use and abuse of crisis, hyper partisanship and ideology
I’ve listed those second 33 stories at the end of this blog as well (see Appendix 2) if you’d like to jump into any of these pieces.

Here are a few comments on the five themes I see overarching our individual stories:

1. The challenge of change (and the importance of crisis)

In our first 33 blogs we came to the repeated conclusion that achieving enduring change is hard. Often it’s politically impossible. Vested interests, competing ideologies and weak governance frequently conspire to defeat our best intentions. We concluded on several occasions that enduring change is probably only achieved through crisis. The status quo needs some form of disturbance to weaken its hold to enable a change in rules to occur.

Well, be careful what you wish for. This recent ‘summer of our discontent’ has brought more crisis than anyone thought possible (though all of it is well within predictions made by the scientific community).

Will change result? Almost certainly. Will it be change for a more sustainable future? Maybe. Or maybe it will see a massive decline in environmental protection as the economy ‘snaps back’ to full speed (double speed?) and crushes everything in its path.

2. The culture of science (and its failure to influence policy)

This theme continued to develop in our second set of 33 blogs. Scientists cried apocalypse, wrote massive public letters, and called governments out time and again on climate denialism. Meanwhile forests burned, coral reefs fried and landscapes withered.

Everything the scientists were warning us about seemed to be coming true and yet our government held fast to its line that everything is okay and Australia should be proud of its performance. While grudgingly acknowledging that there might be a connection between the fires and climate change, it wasn’t something they could deal with till the crisis was passed. Having got passed it, now we only talk about the plague.

So what do I expect scientists to do? I really don’t know. If they become advocates or start manning the barricades then they’re no longer practicing science. And yet the science by itself seems so impotent.

3. The burden of politics and ideology

Surely something has got to give? The neo-liberal conservative ideology that sits behind climate denialism cannot be sustained given what our country (and the world) is enduring – surely? And yet it does. Could it be that when everything else has been burnt, withered and wasted, our ideology will still be standing, still declaring its intrinsic rightness – that would be the ideology of whoever is left standing. (It’s been pointed out to me that ‘denialism’ is driven by more than neo-liberal ideology. That might be so but it paves the way by promoting the view that the market will solve all problems and that non-market things do not count. Of course it’s much more complex than I present here, and there’s a strong thread of libertarianism interwoven through this tapestry of deceit. The net effect is continuing poor outcomes in the face of overwhelming evidence that we should be doing something different.)

4. The value of good policy

Whereas I tend to despair and begin to rant (as in point 3) when I consider the rampant environmental decline all around me (largely discounted by government), Peter looks for constructive policy solutions that may or may not be applied but at the very least deserve serious consideration. For example, Peter devoted several blogs to exploring environmental accounts and environmental impact studies and how they relate to effective environmental protection (in both sets of 33 blogs).

It will be interesting to see if good policy takes the fore as we move deeper into this crisis riven year.

5. The importance of history

To understand why a good policy is not implemented in an appropriate way, or why ideology so often trumps rationality, it’s important to understand the historical context and development of an idea or process. Many of the stories we have examined have long histories, and to understand why something works as it does it’s necessary to see from where it came and how it has changed.

The historical antecedents of sustainability policy was a much greater talking point in our first 33 blogs though it still featured in many of the second tranche. Possibly the reason for this is that it seems that history was being made even as we wrote the second set, and it was all we could do to reflect on what was unfolding around us.

Last year’s drought seemed to be a game changer but it was dwarfed by the scale of ensuing fires which in turn has been swallowed by the enormity of the Covid 19 pandemic (and somehow, while all this was happening, no-one seemed to notice that the Great Barrier Reef had been king hit by another mass bleaching event, the most extensive to date).

What will come out the other end of this run of crises is anyone’s guess but it’s a sure bet that what we think is happening now will likely be revised and reinterpreted many times as we move away from these tumultuous times – though possibly towards even more tumult.

Maybe I’ll have the answer by blog #100.

Image by Flo K from Pixabay

Appendix 1: Our first 33 Bites [in order of appearance with themes in brackets]

1. Environmental Sustainability: a thoroughly Conservative notion[Ideology; history]
2. Sustainability, ‘big government’ and climate denialism [Ideology, science]
3. Why Can’t We Agree on Fixing the Environment? Tribalism & short termism[Politics, crisis]
4. Wishing for a ‘Goldilocks’ crisis’A crack in the Greenland Ice Sheet [Change, crisis, history]
5. How are we going Australia’s OECD decadal Environmental Report Card [Good policy]

6. Throwing pebbles to make change:is it aim or timing?[Crisis and change]
7. The BIG fixWhy is it so hard [Crisis, politics]
8. Duelling scientists: Science, politics and fish kills [science culture, politics]
9. Making a difference without rocking the boat The FDR Gambit [Crisis, good policy, politics]
10. Throwing pebbles and making waves: Lake Pedder and the Franklin Dam[Crisis, history]

11. Ending duplication in Environmental Impact Assessments [Policy, history]
12. Is science the answer? Technology is not the solution[Science, ideology]
13. Environmental Impact Assessment and info bureacracy [Policy, politics]
14. Confessions of a cheerleader for science: delaying action because science will save us[Science, ideology]
15. Caldwell and NEPA: the birth of Environmental Impact Assessment[History, policy]

16. This febrile environment: elections, cynicism and crisis[Politics, crisis]
17. 20 Year review of the EPBC – Australia’s national environment law [Policy, politics, history]
18. Saving the world’s biodiversity: the failure of the CBD and the need for transformative change[Policy, history, politics]
19. The value of Environmental Impact Assessment [Policy, history]
20. Retreat from reason – nihilism fundamentalism and activism [Ideology, crisis, politics]

21. Too late for no regrets pathway: a pathway to real sustainability[Politics, policy, history]
22. A short history of sustainability: how sustainable development developed[History, policy, crisis]
23. Kenneth Boulding and the spaceman economy: view from Spaceship Earth[History, policy]
24. A real climate change debate: science vs denialism[Science, politics, ideology]
25. Craik Review on green tape: environmental regulation impact on farmers[Policy, politics]

26. Trinity and the dawn of the Anthropocene [History, science]
27. An environmental accounting primer [Policy, history]
28. Displacement activityit’s what you do when you don’t have a real environmental policy [Politics, policy]
29. The Productivity Commission and environmental regulation [Policy, politics]
30. Framing climate change: is it a moral or an economic issue [Politics, ideology]

31. The Sustainable Development Goals: game changer or rehash [Policy, history]
32. The Great Barrier Reef: best managed reef in the world down the drain [Science, policy, politics]
33. Doing the Tesla Stretch electric cars to our economic rescue [Policy, politics]

Appendix 2: Our second 33 bites [in order of appearance with main themes in brackets]

34. Joining the dots on Sustainability Bites – looking back on 33 blogs[reflection, history]
35. What’s in the EPBC Box? – Unpacking Australia’s primary environmental law [policy, EPBC Act]
36. I’ll match your crisis and raise you one Armageddon – playing the crisis game [crisis, politics]
37. Federal environmental planning – planning should be strengthened in the EPBC Act [policy, EIA]
38. Shame Greta Shame – the use of ‘shame’ to affect change [politics, shame, denialism]

39. Is Corporate Social Responsibility an environmental ‘Dodge’? – [business, social responsibility]
40. On the taboo of triage – why politicians don’t talk about triage [politics, policy, denialism]
41. 2019 Senate Environment Estimates – [politics, policy, news]
42. I’m so angry I’m going to write a letter!! – the value of the ‘letter’ from experts [politics, science culture, denialism]
43. Supplementary Environmental Estimates – [politics, policy, news]

44. The script that burns us – predicatable responses to wildfire [politics, ideology, denialism]
45. Announcing ‘Australia’s Strategy for Nature’ – what’s in this new policy [politics, policy]
46. But we’re only a tiny part of the problem! – unpacking denialist cant [politics, policy, denialism]
47. Will next year be a big one for biodiversity? – the importance of 2020 [policy, environmental accounts]
48. Positioning ‘The Environment’ – rearranging government departments [policy, politics]

49. Insights on government thinking from 20 years ago – release of parliamentary papers[policy, history]
50. Five lies that stain the nation’s soul – the government’s worst lies [politics, denialism]
51. Now is the summer of our discontent – reflecting on an awful summer [politics, disturbance]
52. On ‘resilience’ as a panacea for disaster – hiding behind notions of resilience [politics, disturbance, resilience]
53. By all accounts, can we manage to save biodiversity? – environmental accounts to the rescue [policy, environmental accounts]

54. Conversations with the devil – false news is amplified by tribalism [polarization, tribalism]
55. A tale of two climate bills – laws proposed by an independent and the Greens [policy, politics]
56. Dawn of the new normal (?) – when will we acknowledge climate change [policy, politics, disturbance]
57. Insensible on coal – why is coal the elephant in the room[policy, politics, disturbance]
58. The zero sum game – from biodiversity to emissions – ‘net’ zero carbon emissions[policy, politics, offsets]

59. ‘Practical Environmental Restoration’– the Government always talks about ‘practical’ [policy, politics, offsets]
60. A good decision in a time of plague – the process is more important than the decision itself [policy, governance]
61. A pathway for the Coalition to improve its climate change act – the 2020 climate policy toolkit [policy, politics, climate change]
62. Entering a no-analogue future – Covid 19 is giving us the world to come [Anthropocene, Covid 19]
63. Who’s the BOS? – Biodiversity offsets – state vs commonwealth [policy, politics, offsets]

64. Three letters on the apocalypse – putting a human frame on disaster [climate change, communication]
65. Washing off the virus – what happens to environmental regulation after the plague [policy, politics]

Washing off the virus

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Will we throw the environmental baby out with the bathwater?

By Peter Burnett

In canvassing our recovery from the COVID-19 crisis, Prime Minister Scott Morrison has made bold statements about giving first priority to growing the economy through a business-led recovery. Finance Minister Mathias Cormann has deployed equally strong language about an ‘aggressive’ deregulation agenda.

The strength of such language must give anyone concerned about the environment pause for thought. There’s no doubt the economy will need some heavy duty kick-starting as we recover from the COVID-19 disaster.

However, might this crisis be used to justify a political narrative about environmental regulation being ‘green tape’? Could we, in the name of curing the current big crisis, end up accelerating the next big crisis, brought on by environmental decline?

Wrapped in green tape

Federal Environment Minister Sussan Ley already has a predilection for the green tape narrative. Announcing the current review of the Australia’s national environmental law, the Environment Protection and Biodiversity Conservation Act (EPBC Act) last October, she cast the review as an opportunity to cut ‘green tape’ and increase certainty for business.

The environment itself was only mentioned in the context of ‘maintaining high environmental standards’. Ley expressed no concern about the ongoing decline of the environment itself. And this was well before the COVID-19 crisis.

It is fair enough for the Government to look for increased efficiency, including in regulatory processes, as part of a plan for environmental recovery.

In federal environmental regulation, my first suggestion for efficiency would have been to fund the regulatory process properly. Successive governments have reduced efficiency by whittling departmental resources away through inflated ‘efficiency dividends’, code for general cuts. As a result, delays have gotten longer and longer, but of course they could have been reduced again by restoring the money.

But it seems that the Government is already on top of this one.

In November 2019 (ie, still before the crisis), it announced a $25m ‘congestion busting’ initiative to reduce delays in federal environmental assessments, including by establishing a major projects team ‘to ensure assessments can be completed efficiently and thoroughly in accordance with the Act.’

Recently, Ley announced that this initiative was delivering what appears to be significant progress. As of December, only 19% of ‘key assessment decision points’ were being met. But by March 2020 this had improved dramatically, to 87%. What’s more, the Minister says that figure should reach 100% by June 2020, all without relaxing any environmental safeguards under the EPBC Act.

In other words, the problem of slow environmental approvals will be solved in a couple of months.

I must admit to scepticism about this claim. I suspect that the assessments are much more superficial than they once were, more reliant now on accepting information provided by proponents and state regulators.

I also suspect that the introduction of user-charging for federal environmental assessments a few years ago, together with limited resources for compliance, mean that there are fewer projects under assessment. This is because proponents abandon a bias towards referring projects on a ‘just-in-case’ basis, in favour of a risk management approach, under which proponents weigh the costs of referral against knowledge that compliance action for failure to refer is unlikely.

However, let’s take the Government’s claims at face value for the moment and accept that regulatory delays, at least at the federal end, are on the way out. What else could they do to speed up environmental approvals?

More juice in the efficiency lemon

Even if individual statutory timelines are met, overall timelines can still be reduced, first by removing duplication between federal and state processes and also by removing delay at the proponent’s end. This latter kind doesn’t count as regulatory delay but is, of course, still delay.

Duplication is a complex issue and reform is a medium term task. But short-term gains could be achieved administratively, by forming federal-state task forces, ie by putting regulatory staff from both levels of government into a single team, tasked with shepherding the project through all processes as quickly as possible.

In the past I would have said the politics wouldn’t allow this, but I would also have said that a thing called ‘National Cabinet’ would never work. These are extraordinary times.

Proponents could also contribute to a task force model. I wouldn’t recommend direct secondment of proponent staff to task forces, as this is mixing the foxes in with the hens, but by increasing resources for their own project teams proponents could improve quality and responsiveness, both of which are essential to timely environmental assessment.

Avoiding the temptations of short-termism

So there are some gains to be had. Yet the temptation in a crisis is to grab onto anything and everything that might conceivably help deal with the problem at hand, taking a ‘tomorrow-can-look-after-itself’ attitude to any longer term consequences. And this is no ordinary crisis.

Beyond the marginal gains of efficiency, trading parts of the environment itself for a short term economic hit could look very tempting.

The OECD is alive to this issue and has come out with all guns blazing. In a recent statement, OECD Secretary General Angel Gurría argues, not just against weakening environmental standards, but in favour of stronger standards. In his view, governments should seize ‘a unique chance for a green and inclusive recovery … a recovery that not only provides income and jobs, but also has broader well-being goals at its core, integrates strong climate and biodiversity action, and builds resilience.’

In other words, kill two birds with one stone. Use your spending on post-virus economic recovery to advance longer term environmental recovery. Gurría has a three point plan for this:

First, align short-term emergency responses to long-term economic, social and environmental objectives and international obligations (ie, leverage your investment).

Second, prevent lock-in, not only of high-emissions activities, but also of impacts on vulnerable groups, who have been the worst affected by COVID-19. A key way to do this is through a fair transition to a low-carbon economy.

Third, policy integration. Integrate environmental and equity considerations into the economic recovery. This means that infrastructure investment, as well as government support to virus-affected sectors, should pass the test of contributing to a low carbon economy.

Don’t throw the baby out with the bathwater

The OECD is often described as a club for rich nations. And rich nations, including Australia, could be expected to take a conservative view about maintaining wealth.

Yet this advice sounds rather left of centre. In fact, in an Australian context, it is redolent of the mostly unlamented Rudd/Gillard/Rudd Government, which aligned its short term emergency responses to long term environmental objectives (think Pink Batts, 2008) and also pursued a fair transition to a low-carbon economy by compensating low income earners for the impact of the carbon price (think Clean Energy Future, 2011).

In my view the OECD is right but, in Australia, its advice may be cruelled by our recent political history. If the Government were to take the OECD’s environmentally-responsible but mildly collectivist advice it would be accused of taking the Rudd/Gillard path to disaster.

On the other hand, if the Australian Government follows through on its current rhetoric of a growth-led recovery and aggressive deregulation, we may be headed for solutions that throw the baby out with the bathwater.

Which will it be?

Image by Pezibear from Pixabay

Who’s the BOS?

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The NSW Biodiversity Offset Scheme (BOS) will now apply to federal development approvals in NSW

By Peter Burnett

Federal environment minister Sussan Ley has announced new arrangements with NSW covering the application of biodiversity offsets under federal environmental impact assessment (EIA) laws. Under these arrangements the NSW Biodiversity Offsets Scheme (BOS) will cover both federal and state requirements and the federal policy on offsets will no longer apply.

Sounds complicated and technical, should we care? Absolutely we should. EIA is the cornerstone of our approach to environmental protection in Australia; offsetting has gone from being rare to common over the last 20 years; and the manner in which state and federal governments coordinate their approach to assessing development is key to effective environmental regulation. Everyone with an interest in protecting the environment should care about this new proposal.

Is this an improvement? Do the feds just want to get out of EIA? With offsets becoming the de facto bottom line in EIA, who’s the BOS now?

It is complicated

EIA is complicated, but doubly so under Australia’s federal system, where federal and state governments have overlapping EIA laws. Governments have been trying for decades to reach agreement on reducing the resulting duplication, but with limited success.

When the Environment Protection and Biodiversity Conservation Act (EPBC Act) was passed in 1999, one of its big selling points was that it would put an end to EIA duplication through a mechanism known as bilateral agreements, or ‘bilaterals’ for short.

There are two kinds of bilateral. An ‘assessment bilateral’ accredits a state to undertake a single EIA process to inform two approval decisions, one by the Federal environment minister and one by the state.

The more powerful ‘approvals bilateral’ accredits a state to assess and approve developments, without any federal involvement, on the basis that the state system has been accredited as meeting all federal environmental standards under the EPBC Act. The feds tried to go there twice, once under Julia Gillard and once under Tony Abbott, but these ‘one stop shop’ initiatives failed both times.

So we are only talking about assessment bilaterals here.

One of the problems with assessment bilaterals is that they combine two assessments into one but leave two separate approval decisions to be made, applying two sets of policy, including on offsets.

So this latest decision, under which the Commonwealth will apply the NSW BOS instead of its own offsets policy looks like it should streamline decision-making.

And that’s how Minister Ley and her NSW counterparts are selling it, of course. But what about substantive standards on environmental offsets? Does the BOS deliver environmental outcomes as good as, or better than, the federal offsets policy?

How do the two offsets policies compare?

The NSW BOS has some real strengths, especially that it is a statutory scheme administered by a government-controlled trust. This enhances governance by providing consistency, continuity and transparency. It leaves the non-statutory federal policy, which lacks even the basic transparency of a public offsets register, in the shade.

Nevertheless, some environment groups opposed federal endorsement of the BOS. A key concern was that the BOS is aimed at biodiversity generally, rather than at the threatened species and communities protected under the EPBC Act. As a result, it does not have a requirement that offsets address impacts on a ‘like-for-like’ basis, for example to offset an impact on the Eastern Quoll with something that benefits the Eastern Quoll.

NSW addressed this concern by amending its Biodiversity Regulation to impose a like-for-like requirement, but only for impacts on matters protected by the EPBC Act.

Another key concern raised by environment groups is that the BOS typically delivers smaller offsets than the federal policy, especially for species or ecological communities that have a higher threat status (eg, a species listed as critically endangered). The main reason for this difference is that the federal policy, unlike the NSW BOS, uses a discount factor, related to the likelihood of extinction. This discount factor increases the offset quantum as the threat status increases.

Presumably NSW objected to introducing a similar discount factor for federally protected species and communities. So the Commonwealth accepted the NSW position, justifying this with the argument the level of threat ‘would still be considered’ by the Commonwealth ‘as part of the broader regulatory process’.

Despite these soothing words, I think it’s unlikely that the Commonwealth will impose an additional offset in such cases, which arise regularly, because this would undermine the (streamlining) purpose of endorsing the NSW policy in the first place. At best, this caveat provides an escape clause to be invoked in egregious or highly controversial cases.

Different policies in different states?

One effect of Commonwealth endorsing a NSW-specific offsets policy is that this is likely to lead to different outcomes in different states. This is clearly undesirable from an environmental point of view, as ecosystems and bioregions straddle borders. I imagine Minister Ley might agree in principle but defend the difference in outcomes on pragmatic grounds.

The application of different policies also made my lawyer’s antennae twitch. Not only does the the Constitution prohibit the Commonwealth discriminating between states in certain cases, but the EPBC Act itself contains sections that translate these constitutional prohibitions into specific bans.

For example, sections 55 and 56 of the EPBC Act prohibit the environment minister from discriminating between states and parts of states through bilateral agreements in certain circumstances. However, it turns out that neither the Constitutional prohibitions nor the sections of the EPBC Act apply in this specific case, for reasons too complicated to explain here.

So, as undesirable as it might be to have two different policies on the same thing, there is no law against it in this case.

Streamlining or watering down?

In the short term, whether this is a good initiative, a streamlining or a watering down in the interests of putting the states in the driving seat, is a mixed question.

Clearly it will reduce the regulatory impact of overlapping the EIA schemes. And the NSW BOS does have some significant strengths, which the Commonwealth would do well to imitate when it responds to the current review of the EPBC Act.

But it is a worry that the Commonwealth has adopted a policy specifying what is an acceptable biodiversity offset, but then decided that a lower offset is acceptable if the impact occurs in NSW.

In the longer term, however, the more important policy question is not whether an offset is acceptable under a policy, but whether it is sufficient.

This highlights a fundamental weakness of the EPBC Act itself, which is that the Act doesn’t specify any objective standard of environmental sustainability, but leaves it to the environment minister to decide what is ‘acceptable’. Something that is clearly acceptable to a minister may nevertheless fall far short of sufficient.

Hopefully the current review of the EPBC Act led by Professor Graeme Samuel will recommend an approach that sets clear benchmarks for what is sufficient to maintain biodiversity and ecological integrity, and then requires that those benchmarks be met.

Image by Terri Sharp from Pixabay

A pathway for the Coalition to improve its climate change act

Featured


Reviewing the 2020 Climate Policy Toolkit

by Peter Burnett

The Climate Change Authority (CCA) has released its latest advice to the Australian Government on how to respond to climate change. It’s contained in a report titled: Prospering in a low-emissions world: An updated climate policy toolkit for Australia.

For a body with three seats out of seven occupied by former Coalition politicians, it’s a bit of a surprise as it favours strong climate action.

Who or What is the CCA?

The CCA was set up by the Gillard Labour government in 2011. The Climate Change Authority Act was one of 18 bills forming the Clean Energy Future package, the centrepiece of which was a carbon price (also known as the ‘carbon tax’). The carbon tax didn’t survive of course, but thanks to Al Gore’s powers of persuasion with Clive Palmer, the CCA Act did. The CCA’s role includes research, and this latest report is released as a ‘research report’.

The CCA has seven members. The chair, Dr Wendy Craig, has headed a number of statutory authorities, including the Great Barrier Reef Marine Park Authority (GBRMPA) and the Murray Darling Basin Authority. While not political, she is trusted by the Government, as seen in her conducting the recent review of the impact of the EPBC Act on agriculture, a review loaded with political sensitivities.

Also a member of the CCA is another former head of GBRMPA, Dr Russell Reichelt.

Most significantly, three members of the Authority are former conservative politicians. Kate Carnell is a former Liberal ACT Chief Minister; John Sharp is a former National Party transport minister and Mark Lewis is a former Liberal agriculture minister in WA.

Finally, Stuart Allinson has an industry background, while the Chief Scientist, Dr Alan Finkel, is a member ex officio.

A updated Climate Policy Toolkit

The CCA produced its original Policy Toolkit report in 2015, at the request of government. This update appears to be unsolicited.

The report presents 35 recommendations about transitioning Australia to a low emissions future. But it does so ‘building on the Government’s current climate change policy settings’.

The Government rejected the CCA’s earlier advice in the lead-up to the Paris Conference in 2015 that it should aim to reduce emissions (on a 2000 baseline) by 40-60% by 2030. It is not surprising then that this report takes the Government’s 26-28% by 2030 emissions-reduction target as a given.

Because governments don’t like taking the tough decisions needed to fix the environment, advisers often stress economic opportunity when serving up unpalatable recommendations. This report is no exception, with Dr Craik declaring in her media release that ‘we need to position our economy for the coming changes in global trade and investment markets and seize on the opportunities before us, or risk being left behind.’

The updated advice

Despite this, there is some good advice in the recommendations. I’ve listed what I think are the highlights below (with my ‘translation’ of what I think they mean):

Develop a long-term climate change strategy that secures Australia’s contribution to the achievement of the temperature goals of the Paris Agreement.
Translation: we should do our bit to stop temperatures rising, not just to meet (inadequate) national targets.

Governments should work together to support industries and communities facing an uncertain future to identify pathways for industries to evolve and remain competitive and to exploit new economic opportunities.
Translation: we don’t really like the Left-oriented phrase, the ‘just transition’, but we agree with the idea of managing the transition to a low carbon economy so that sections of the community are not disadvantaged.

Australia should aim to meet its 2030 Paris Agreement target using emissions reductions achieved between 2021 and 2030.
Translation: don’t claim Kyoto carryover credits.

Develop an international climate strategy to support a strong global response to climate change that minimises physical impacts on Australia and increases international demand for Australia’s emerging low-emissions export industries.
Translation: push other countries to up the ante as it’s in our national interest.

Review and update the 2015 National Climate Resilience and Adaptation Strategy.
Translation: we need to do more in preparing to deal with the impacts of climate change.

In the electricity sector, advance electricity system security; fast-track reforms for integrating large amounts of low- and zero-emissions generation into the electricity market; align bilateral Commonwealth-State energy agreements with AEMOs Integrated System Plan; and increase certainty on the timing of the retirement of ageing coal generators to facilitate timely investment in replacement capacity and storage.
Translation: hurry up and fix energy policy.

Enhance the Safeguard Mechanism to deliver emission reductions from large emitters in industry, with declining baselines with clear trajectories and the ability to trade under- and over- achievement once baselines have commenced declining.
Translation: emissions trading, thou name shall not be spoken, though thy spirit be honoured.

For vehicles with internal combustion engines, reconsider implementing a greenhouse gas emissions standard for light vehicles and undertake a cost-benefit analysis of an emissions standard for heavy vehicles.
Translation: traditional transport can’t be left out of climate policy.

For electric vehicles, minimise barriers to electric vehicle uptake, including by: ensuring adequate infrastructure coverage on highways and in regional areas; considering implications for electricity network tariff reform and fuel excise revenue, and setting targets for electric vehicle adoption in government fleets.
Translation: Time to get serious about electric vehicles, including the tricky topic of new taxes to replace lost fuel excise.

Land use and agriculture activities should continue to be covered by the Emissions Reduction Fund, with credits continuing to be used as offsets for facilities covered by the Safeguard Mechanism.
Translation: Keep buying credits from agriculture until the Safeguard Mechanism above forces industry to buy them instead.

Introduce a Land and Environment Investment Fund (that is, a Clean Energy Finance Corporation (CEFC) for the land), to invest in low-emissions and climate-smart agriculture. Investigate and implement the most effective incentives to encourage the use of emissions-reducing inputs in agriculture.
Translation: Self-explanatory on the Fund. Farmers should be hit with carrots rather than sticks.

Recognise the benefits of a circular economy approach for emissions reductions, ensure the National Waste Policy Action Plan considers industry development, the waste hierarchy, research and development, training and barriers to adoption; and emphasises the creation of industries in regions undergoing transition.
Translation: governments need to drive us much further down the path of reuse and recycling.

Reinvigorate the National Energy Productivity Plan with enhanced ambition and additional resources, including by implementing a National Energy Savings Scheme that builds on existing state and territory energy efficiency schemes; strengthen and extend energy performance standards for appliances and commercial equipment (eg hot water products and pumps, boilers and air compressors); accelerate energy efficiency improvements for buildings.
Translation: energy efficiency has always offered cheap and low-pain options, so get on with it.

Continue to fund the Australian Renewable Energy Agency (ARENA) and consider expanding its remit into other sectors requiring R&D for low-emissions technology or practice. Expand the remit of the Clean Energy Finance Corporation (CEFC) to allow it to invest in emissions reduction technologies in all sectors to help overcome barriers to finance. Restrictions on the scope of the CEFC’s activities, its portfolio mix and the financial instruments it can use should be lifted. The Government should consider making further capital injections in the CEFC to fund this expansion.
Translation: the investment mechanisms that the Abbott government wanted to get rid of have proven very successful and should be expanded.

Together with the major accounting bodies, examine the phasing-in and mandatory reporting of climate-related risks and mainstream climate-related disclosures in companies’ audited financial statements. Assist the finance and investment sector to develop standards and verification processes for green finance products and services.
Translation: the impacts of climate change on business are here. This means getting companies into mandatory reporting but also capitalising as companies are driven by risks and stakeholders to mitigate their climate impacts.

Not a bad package overall

All in all, this is not a bad package, containing some carefully couched hints from a body that includes the Government’s own colleagues, to up the ante on climate, even on ‘no go’ areas like the 2030 targets.

Image: Part of Figure 5 from the report Prospering in a low-emissions world: An updated climate policy toolkit for Australia

‘Practical Environmental Restoration’

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The new Government mantra (and more grist from the Estimates’ mill)

By Peter Burnett

The Senate held another round of its regular environmental estimates hearings and, once again, I thought I’d share with you what emerged. As I’ve said in the past, these hearings often contain valuable evidence on Government thinking and action.

The topics covered this time were mostly grist for the mill, but one item really stood out: the Government has become focused on something called ‘practical environmental restoration’? Heard of it? Neither had I.

Practical environmental restoration

The government has a bit of a thing about taking ‘practical’ action when it comes to the environment. This theme emerged as a way of contrasting the Coalition Government’s main climate initiative, the Emissions Reduction Fund, with the complexities of the previous Gillard Government’s carbon price (which Tony Abbott had labelled, confusingly but very successfully, as a tax).

And then there was the Government’s obsessive focus on the second-order environmental issue of plastic pollution while ignoring the first-order issue of climate change because this government is all about practical solutions.

In the last budget, brought down in the lead up to the 2019 election, the Government developed this ‘practical action’ theme further, introducing two new programs, an Environmental Restoration Fund ($100 million over four years) and a Communities Environment Program ($22.6 million in one year only).

Smells like a pork barrel

On the face of it, the Environmental Restoration Fund seems respectable. However, look a little closer one and it takes on the appearance of a pork barrel. With the fund established and an election called, the Government proceeded to make election commitments covering nearly 80% of the fund. According to a non-government Senator, some of the groups nominated as recipients knew nothing about the grants coming their way until contacted by someone from a Coalition Party.

With the government re-elected, these election commitments prevented the Environment Department from giving the standard advice about holding competitive grant rounds. It had no choice but to advise the Government to hold what officials described as a ‘closed, non-competitive’, funding round. This meant that the grant guidelines actually specified the recipients as the groups nominated in the Governments election commitments.

None of this is illegal, because various policy guidelines allow for standard procedures like competitive grant rounds to be overridden by election commitments. The theory is that the Government has a mandate to implement his commitments.

So it’s not a second ‘Sports-Rorts’ affair, with attendant allegations of illegality.

It is, however, a blatant case of pork barrelling, likely to lead to poor policy outcomes because the politicians have specified the grant amount, purpose and recipient without any public service or other expert advice.

With the environment in continual decline and a desperate need for restoration, this is another example of very poor governance.

School yard stuff

And the response of Minister Birmingham, the minister representing the Government at Estimates, to Opposition criticisms of the program? ‘I don’t have to sit here and accept hypocrisy from you. You made similar promises at the election.’

In other words, you are just as bad as us, so we can get away with this. At a time when trust in government is very low and the environment in significant decline, this is school yard stuff and a very sad state of affairs.

The Communities Environment Program is not much better. The fact that the program is limited to one year, immediately following at election, is unusual and strongly suggestive of the program being another pork barrel. The fact that the money is allocated to all MPs ($150,000 per electorate) allowing non-government MPs to access to the pork, is hardly a saving grace.

Again, this is bad policy. Small numbers of piecemeal local grants in a one-off program make no contribution to the big environmental issues that face the national government.

So what does ‘practical environmental restoration’ mean? Pork barrelling, obviously.

Grist for the mill

To finish, some quick ‘grist for the mill’ themes from Estimates:

  • There was the usual manoeuvering in which the Greens asked the Bureau of Meteorology questions designed to elicit strong statements about the severity of climate change, while One Nation asked questions directed to showing that the Bureau was cooking the books.
  • The Opposition was in pursuit of Warren Entsch, the Government’s backbench Reef Envoy: why was he so focused on single use plastics in the marine environment when it is such a small component of marine waste?
  • There were the expected questions concerning the impact of bushfires on threatened species. In short, the Government has convened an expert panel and the Threatened Species Committee is reviewing conservational advice and recovery plans, but it really is too early to have much data from bushfire-affected areas.
  • Opposition and Green senators are still pursuing Minister Angus Taylor’s alleged intervention in a compliance investigation concerning his brother’s farm in southern New South Wales. Officials advised, yet again, that this long-running investigation remains incomplete.
  • Senator Matt Canavan, formerly Resources Minister and now on the back bench, asked about climate change as an issue in environmental assessments under the EPBC Act. He is clearly concerned that an environmental assessment for a large oil and gas project off the coast of WA, requires the proponent to assess the impact (if any) of greenhouse gases (including scope 3 emissions) on features such as the Great Barrier Reef, which lie on the other side of the country.
  • While on the topic of environmental assessments, officials revealed that the Environment Department had received some funding for extra environmental assessment staff under the government ‘congestion-busting’ initiative. This reverses the trend over the last few years of regular staffing reductions in this area. It’s ironic that governments cause the problem through general cuts (the so-called ‘efficiency dividend’, then ‘fix’ the resulting ‘congestion’!
  • Senators pressed the government on it’s electric vehicle strategy, due out in mid 2020, particularly given pre-election comments by the Prime Minister and other ministers about electric vehicles putting an end to the weekend. Perhaps rehearsing the lines that will be used to explain these pre-election comments away when the Government starts to promote electric vehicles in its forthcoming ‘Technology Roadmap’. Minister Birmingham made it clear that the electric vehicle market was ‘obviously one that is adapting in terms of the technical specifications’ and that ‘the electric vehicle strategy will no doubt take into account how those technical specifications are evolving.’

Image: Image by Clker-Free-Vector-Images from Pixabay

The zero sum game – from biodiversity to emissions

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A game for mugs or a magic pudding that just keeps giving?

By David Salt

Zero net emissions by 2050! It’s the goal proclaimed by many countries around the world*, and it’s aimed at stemming the tide of climate change.

Zero net emissions is the recipe for enabling business as usual (ie, strong economic growth) while supposedly dealing with the externalities resulting from business as usual (ie, civilisation-ending climate change).

And it’s a political winner because governments aren’t targeting specific economic sectors (ie, the fossil fuel industry). Indeed, this far away from 2050, they aren’t being pegged down by too many specifics on how it will be achieved. The generic solution, implicitly and explicitly rolled out everytime, is that technology will save the day.

The magic in the pudding

So where is the magic that drives this ‘zero-net’ proposition? It’s in the ‘net’ bit. This framing means you don’t have to be ‘zero’ in your emissions in any specific activity, like burning coal if that’s what tickles your fancy.

But you do have to be zero in your cumulative effort. If you produce carbon emissions in one area then you need to do something somewhere else that removes that carbon so the cumulative impact (the net effect) is zero.

How do you remove carbon from the atmosphere? The traditional way has been to plant trees or do existing activities in ways that emit less carbon, a good example being using renewable energy instead of fossil fuel energy.

It works as a political solution because it means you don’t have to explicitly say who is going to bear the burden of reducing their emissions. At some point, however, someone, somewhere is going to have to change their behaviour – after all, sustainability bites!

Experience so far with zero sum policy games suggests they are tricky to establish and easy to work around (ie, cheat).

Offset this

What, you weren’t aware of other zero-sum games? They’re actually quite popular and one place where it’s really taking off is in the arena of biodiversity conservation. The name of this specific game is called biodiversity offsetting.

When it comes to any economic activity with impacts on biodiversity there are many rules and regulations to prevent the loss of species and ecosystems.

To begin with, the proposer of a new economic development must demonstrate their proposal isn’t adversely impacting any native species or ecosystems. If it does, the developer is required to state what they will do about it to remove that impact.

Indeed, developers are expected to apply a mitigation hierarchy to their proposal (see the South Australian Government for an example) in which they need to show how they will first:
1. avoid the negative impacts of their development but doing it in a different way. But if there is still impact, they need to then demonstrate how they will
2. minimise the size of the impact of the development; and then
3. restore the area to make up for the impact.

However, if the developer can’t avoid, minimise or restore the impact they create, they can now offset the damage of the development by doing something good for the environment somewhere else. If you clear a stand of native trees over here for a shopping centre, you might offset this impact by planting the same species of tree somewhere nearby.

The aim is to achieve ‘no net loss of biodiversity’ over time. See, it’s a zero-sum policy game.

The trouble is, in many places it’s been seen by developers as a green light for development and has resulted in many perverse outcomes.

A green light for decline?

For starters, many developers don’t even bother with the mitigation hierarchy (because avoiding, minimising and restoring all cost considerable resources and regulators often don’t check to see whether the impact can be mitigated) and jump straight to some form of offset proposal. But proposing offsets for developments are usually quite complex and there’s a lot of research around to show they often don’t actually offset the impacts of the development (in space or time).

In some cases, the development impact is on something that is irreplaceable like the potential loss of threatened species. In these situations it’s impossible to offset the potential loss and the development should be blocked. Instead, the developer is sometimes asked to do something that might be ‘equivalent’ to a direct offset, like contributing money to an education awareness program that may help save the species. Such indirect offsets are not actually offsets at all but they do give cover for economic development to proceed.

The overall outcome is that while there is a goal of no net loss of biodiversity, biodiversity is lost anyway. Around the world we are seeing a mass extinction event taking place and biodiversity offsetting does not seem to be making any difference.

The devil is in the detail

The lesson here is that great care needs to be applied to the establishment of any zero sum policy game. It needs to be transparent, accountable and enforceable. And it cannot be applied merely as cover for business as usual to proceed without any checks and balances.

Economic activity that generates positive carbon emissions (ie, above zero) needs to be accountable for matching these emissions with activities elsewhere that generate negative carbon emissions (ie, activities that remove carbon).

Governments oversee this process and need to establish robust and transparent frameworks that keep track of these activities and their emissions, and report this tracking in a clear and simple way so everyone has faith in the system. To sustain this faith, the monitoring and measurement will need to be independent of government; something along the lines of what Zali Stegall recommended in her climate bill.

A lot of thought will need to go into how you trade emissions across time (eg, savings emissions today to pay for extra emissions in the future) and space (eg, buying emissions savings from another country for an emission heavy activity in our own backyard).

While the law surrounding such net zero policies will be enacted at the national level, it’s likely this game will involve the trading of positive and negative emissions between countries so the net zero frameworks will need to operate with agreed international norms.

The System of Environmental-Economic Accounts is one existing framework that might help with all of these issues.

Maybe net zero emissions is a policy pathway that might engage opposing political forces, something that efforts to date have failed to do. However, to transform the call for zero net emissions by 2050 into workable and effective policy, much effort will need to go into creating intuitions that will hold governments to account and prevent them from fudging the figures.

Image: the cover of the UN Emissions Gap Report for 2019

*According to the UN Emissions Gap Report for 2019, most emissions — 78%— come from the top 20 economies, the G20. Of these, only five had pledged to long-term zero net targets (and this did not include the three big emitters: China, the US and India). Around 70 countries worldwide have made pledges of being carbon neutral by 2050.