‘Best managed reef in the world’ down the drain

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What’s happening around the Park makes a mockery of our ‘best management’ approach

By David Salt

Is it hubris, arrogance or duplicity when the country’s Minister for the Environment can claim, almost in the same breath, that the Great Barrier Reef is ‘the best managed coral reef ecosystem in the world’ but that the science-based outlook for the Reef’s ecosystem has slipped from ‘poor’ to ‘very poor’? I’m not joking, read her press release (it came out last Friday). How does ‘best management’ produce this outcome?

Well, it might surprise some of our readers to hear that I don’t actually disagree with the claim that the GBR is one of the world’s better managed reefs. It’s one of the world’s biggest marine parks with a significant portion of it off limits to all forms of development (around a third) thanks to the application of world’s best-practice systematic conservation planning. And the management of this world-heritage listed park is supported by a range of relatively well resourced institutions (GBRMPA, AIMS and the Centre of Excellence for Reef Studies to name three).

We monitor it well and in many areas we have led the world on reef science. And that’s as it should be because Australian’s love the Reef and expect our elected representatives to look after it. Economists tell us it’s worth looking after because it employs 64,000 people, generates $6.4 billion each year and has a total asset value of $56 billion.

The shadow of climate change

The trouble is, the looming threats overshadowing the Reef cannot be addressed by best-practice management within the Park’s boundaries. They originate outside of the Park and the Government claims it has limited power to address them.

In 2012, the Australian Institute of Marine Science (AIMS) released a major peer-reviewed study that found the GBR was under significant stress and that it had lost half of its hard coral since 1985. The cause of this decline was threefold: storm damage (48%), outbreaks of Crown-of-Thorns starfish (COTS) (42%) and coral bleaching (10%).

All three threats had connections with climate change but the government (in this case the Federal Government and the Queensland Government who together share responsibility for the Reef) claimed climate change is a global issue beyond its capacity to control. (And, it should be noted, since this report came out the GBR has experienced catastrophic bouts of mass coral bleaching in 2016 and 2017).

No, climate change is something the government won’t buy into but what it says it can do is improve water quality.

Dirty water

Water quality refers to the levels of chemicals, nutrients and sediments ending up in Reef waters along the coast of Queensland. These ‘contaminants’ largely originate from land-based activities such as sugar cane, bananas and pastoralism. Declining water quality has been an issue for the Reef for much of the last three decades.

Poor water quality is a problem because it alters the balance of the Reef ecosystem – promotes outbreaks of coral eating COTS, encourages algae to colonise spaces previously occupied by corals and generally lowers the Reef’s resilience* – it’s ability to recover from disturbance.

Given the government’s impotence in the face of climate change, the strategy it has elected to follow is to focus on aspects it claims it can influence. In other words, clean up water quality by changing land management. We can’t force other countries to behave differently (in respect to climate change) but we do, in theory, have power over how we manage our own landscapes.

The belief is that if water quality can be improved, this will contribute to overall reef health which, in turn, means the reef should recover faster whatever disturbance hits it (including climate related episodes of bleaching and super-charged cyclones).

Interestingly, the same day the Environment Minister released the appalling Reef Outlook report, she also released the 2017 – 2018 Reef Water Quality Report Card which gave a very gloomy prognosis: “Across all Great Barrier Reef catchments, water quality modelling showed a very poor reduction in dissolved inorganic nitrogen (0.3%) and sediment (0.5%). There was also a poor reduction in particulate nitrogen (0.5%).” What was it, bad news Friday or something; put all the garbage out at the same time (and this following on from the latest carbon emissions data showing Australia’s emissions are still rising over several years even though we say we’ll reduce them!).

So, even if we ignore climate change (exposing the moral void of our environmental stewardship), the strategy nominated by the government to protect the reef – improve water quality – is also failing to achieve anything. And this is not an isolated statement, there have been many reports in recent years showing government action is not working in improving water quality.

Why is it so hard to fix water quality? Because it’s very expensive (though a lot less expensive than taking on climate change). The government’s own costing on what is required is $8.2 billion over 10 years, and so far it hasn’t even stumped up a tenth of this.

Rating the reports

This government prides itself on its managerial approach. However, no matter how well the Great Barrier Reef Marine Park is managed, it is a sitting duck facing the coming onslaught of climate-related bleaching events and big storms. The fact that the government can’t even clean up water quality just adds insult to injury.

The science has been saying what we need to do for many years (indeed, see comments by Terry Hughes, one of the world’s foremost experts comments on coral reefs, on the Outlook report) but the government hides behind the notion that because one part of the reef system is managed well (the part inside the Park) then they have met their commitments. But that well managed bit is connected to the land component next door and the greater world surrounding it, and those connections are killing the reef.

So, in light of last week’s horror reports on the Outlook for the Reef and the 2017-2018 Reef Water Quality Report Card, I think it would be fair to rate the Government’s progress as FAIL with the comment: hubristic, arrogant and duplicitous; don’t try to dress up a failure as a good effort because to do so just makes it harder to take the tough decisions that are needed.

*Reef resilience – having co-written two textbooks on resilience science (Resilience Thinking and Resilience Practice) that have played a large role in popularising the concept of resilience, it saddens by enormously to see the idea used by governments as a shield to hide behind when they are unable to engage with the science of climate change.

Image: A reef under stress on multiple fronts (Image ARC Centre of Excellence for Reef Studies)

Environmental regulation and the Productivity Commission

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Is ‘efficiency’ the sole solution to the challenge of ‘sustainability’?

By Peter Burnett

Last week the Australian Government announced a new inquiry by the Productivity Commission (PC) into regulation of the resources sector. While not confined to environmental regulation, in announcing the review Treasurer Josh Frydenberg made specific reference to improving the efficiency of environmental approvals to reduce the ‘regulatory burden’ on business. Frydenberg also said that the review would complement the forthcoming statutory review of national environmental protection law, the Environment Protection and Biodiversity Conservation Act. (For more on this review, see my recent blog).

In his media release, Frydenberg repeated the mantra of recent governments: that the aim was to ensure that projects were assessed efficiently while ‘upholding robust environmental standards’. This largely reflects the terms of reference of the PC inquiry, which talk of removing unnecessary costs while ‘ensuring robust protections for the environment are maintained’.

The week before the inquiry was announced, the new chair of the Minerals Council of Australia, Helen Coonan (a former Howard Government minister), identified efficient regulation as one of her top priorities. She claimed that if project approvals were sped up by one year, this would release some $160 billion and 69,000 jobs to the economy. I’m not sure where this figure came from, but it may have been based on a PC inquiry into the upstream oil and gas industry in 2009, which estimated that expediting the regulatory approval process for a major project by one year could increase its net present value by up to 18%. In any event, that’s a juicy target for efficiency savings.

The PC’s role on sustainability

On its website, the PC advertises itself as ‘providing independent research and advice to Government on economic, social and environmental issues affecting the welfare of Australians’. That’s not bad for a slogan but the substance is a little more complicated.

Under the Productivity Commission Act 1998 the substantive functions of the PC are all cast in terms of industry development and productivity. And the PC’s statutory policy guidelines, to which it must have regard, are dominated by considerations of improving economic performance through higher productivity; reducing regulation and increasing efficiency.

The statutory guidelines do, however, include considerations relevant to sustainability. Beyond a direct reference to the need ‘to ensure that industry develops in a way that is ecologically sustainable’, there are also references to other things connected to sustainability such as regional development; avoiding hardship from structural change; and meeting Australia’s international obligations. Further, one of the Commissioners must be experienced in sustainability and conservation while another must be experienced in social issues.

So, while the PC is definitely about efficiency and growth, it doesn’t have a one-track mind. Environmental and social impacts are definitely members of the cast, though in supporting roles. As we’ll see below, the problem doesn’t seem to be the PC but what the government does or doesn’t do with its recommendations.

We’ve been here before

Industry keeps complaining about inefficiency and duplication in environmental regulation, and governments keep returning to this theme, often through references to the PC. In recent years, in addition to sector-specific reports on regulation (including environmental regulation) of transport, agriculture, fisheries, water, upstream oil and gas, and mineral exploration, the PC has produced general reports on native vegetation and biodiversity regulation (2004); planning, zoning and development assessment (2011); COAG’s regulatory reform agenda including environmental regulation (2012); and major project assessment (2013).

This is in addition to the statutory review of the EPBC Act itself by Allan Hawke in 2009, which also included significant recommendations for regulatory streamlining.

The PC has also conducted other relevant review activities, such as convening a roundtable on Promoting Better Environmental Outcomes (2009).

And it looks like we’ll do it again

The terms of reference for this latest review focus on identifying practices for project approval that have led to streamlining the process without compromising environmental standards. This is rather unimaginative and I think will simply lead the PC back to places it has already gone, such as recommending increased use of regional plans and other landscape scale approaches; increased regulatory guidance; and a single national threatened species list.

In response to past recommendations, governments have done some of all these things. For example, there is a process underway to adopt a common assessment method for threatened species listings.

But governments don’t seem to tackle the issues in a fulsome and vigorous way, to deal with them once and for all. In fact, they attempt to walk on both sides of the street, pursuing reforms in an incremental way while simultaneously cutting environment department budgets. On this basis, one must even question their appetite for reform.

So much at stake

So is environmental regulation just a convenient whipping boy? There’s so much at stake that I don’t think so. Perhaps governments are wedged between their own policies and the politics: they don’t want to increase spending and can’t be seen to water down existing standards, yet remain frustrated by the processes that those standards bring with them.

If governments want real improvements to regulatory efficiency, without simply winding environmental laws back, they have to front-load the regulatory process with information and guidance and resources, ie with things that the PC and others have already recommended. These boil down pretty much to landscape-scale approaches such as regional planning (done comprehensively) supported by increased levels of regulatory service, including detailed guidance on what will and won’t be approved.

It’s not rocket science, but it will take serious money. But keep in mind that such an investment would lead to saving even more serious money.

And there’s an incidental benefit in such an approach. Proper environmental information and planning will also improve the quality of decision-making, which should improve environmental outcomes.

Image: Image by Gerd Altmann from Pixabay

Nothing to see here

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Displacement is the game when you have nothing really to say (on the environment)

By David Salt

‘How good is the environment?’

Well, by any objective measure it’s in serious trouble and getting worse. But what do you say if your policies aren’t prepared to acknowledge this?

As our national government, you’re in charge of protecting the environment. You’re faced with collapsing ecosystems, declining biodiversity and a rising toll from climate extremes. In spite of this, you’ve made cut after cut to your Environment Department, told everyone Australia is going to make our carbon emission targets ‘at a canter’ (despite all the hard evidence that emissions are actually going up) and repeatedly stated when it comes to the environment everything is sweet. It’s getting harder to sustain this line but you have to say (and do) something. So, what will it be?

Based on what our Environment Minister is saying in Parliament in answer to questions from her own side, the game appears to be to focus on the little picture and displace everyone’s attention.

A tiny agenda

‘Questions without notice’ are supposed to be an opportunity for members to raise important issues relating to their electorates. Unfortunately, they have largely become political theatre in which the major parties just try to embarrass each other.

Under Question-Time rules, government members are allowed to ask questions of their own side. These are called ‘Dorothy Dixers’, after a famous syndicated column in womens’ magazines, ‘Dear Dorothy Dix’, in which ‘Dorothy’ played agony aunt to her readers and provided homespun advice on marriage and the other challenges of home life.

When the government gets a Dorothy Dixer (or ‘Dixers’ as the insiders call them) it’s an opportunity for the government to use a rehearsed question from a friendly questioner to spell out its strategy and agenda, often in the context of announcing (or re-announcing) the spending of money. So when the Minister for the Environment is asked by her own side what’s on the environmental agenda we get a good idea on what the Government is setting out to achieve, what its grand vision is, including how it intends to spend our money.

In recent weeks, that vision seems to consist of small community projects – “it’s supporting grassroots organisations working on small projects that make a big difference”; a bit of environmental restoration, a bit more on soil conservation (God bless our farmers) and a big focus on increasing recycling and reducing waste. (Note: the links in this paragraph take you to the Hansard record of Parliament for the day in question – 23, 30 & 31 July in these cases – but not to the specific answers in the Questions-Without-Notice sessions that I’m referring to. Why Hansard can’t provide specific links to specific answers I don’t know. Maybe to make it harder to pin Ministers down to their answers.)

Indeed, recycling and waste reduction seem to be this government’s big ticket item when it comes to the Environment: “We can’t opt out of modern living or the modern world,” says Sussan Ley, our new Environment Minister, “but we can get smarter about the way we live and the pressure we place on our environment, and about doing everything we can to mitigate that—reducing waste, increasing recycling.”

We don’t need to save the reef (?)

They’ve even appointed an ‘envoy for the reef’ in the form of Warren Entsch (Member for Leichhardt in far north Queensland) who has refused to acknowledge the imminent threat of climate change to the Great Barrier Reef instead citing plastics as being the big problem and increased recycling as the solution.

“We don’t need to save the reef,” Entsch said recently in The Guardian. “It’s still going – we need to manage it and manage it well and we’re the best reef managers in the world.”

So what is his (and this Government’s) solution to saving the Reef? Get rid of single-use plastics. Though, when it comes down to it, our political leaders don’t even believe Australia is the cause of this problem: “the bulk of it [plastic] on our seas comes down from our northern neighbours,” says Entsch. “If we can create world’s best practice and get them to clean up their own backyard then we will reduce the volumes that come down to us.”

What about cleaning up our own backyard, Mr Reef Envoy? Have you read any of the voluminous science coming out over recent years telling us our reef is dying (from declining water quality, increased storm activity, increased outbreaks of crown-of-thorn starfish and, multiplying every threat, climate change)?

“Australians care about our environment,” says Environment Minister Ley. “They want to be involved in protecting it now and into the future. The Morrison government will work internationally and with communities, with local organisations and with our scientific experts to address all of the issues that confront us, large and small, including Asia-Pacific rainforest recovery, blue carbon and sequestering carbon in our coastal and marine ecosystems, and we will continue to invest in protecting the Great Barrier Reef.”

Nice words, but it’s such shallow rhetoric. When it comes to our environment, the government only pays lip service to the big issues, and only engages in doing things that are too small to make much difference overall. All the while it ignores and marginalises the scientific expertise it claims to respect.

High opportunity cost

This is displacement activity of the worse type because the opportunity cost of ignoring the bigger picture – trashing the evidence and degrading our environmental capacity – is the horrible cost of environmental failure our society (and children) will bear down the line.

And, even as I write this, the Government is doing more displacement on the environmentally linked sector of energy – let’s set up an enquiry on nuclear energy to show we mean business.

Nothing to see here.

Image: Tane Sinclair-Taylor, Centre of Excellence for Coral Reef Studies

Review of ‘green tape’ for farmers throws up old conundrums – but also contains one gem

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By Peter Burnett and Philip Gibbons

Wendy Craik’s review of the impact of national environmental law on farmers (Craik Review) was released quietly late last week by new federal environment minister Sussan Ley, nine months after it was received by her predecessor, Melissa Price. (That law, of course, is the Environmental Protection and Biodiversity Conservation Act 1999, or EPBC Act. It’s up for review later this year and for many years farmers have been complaining it places an unfair burden on their agricultural activities.)

Craik is a former Executive Director of the National Farmers’ Federation (NFF) and former head of the Great Barrier Reef Marine Park Authority. She is well respected by government, the farm and conservation sectors.

Useful but mostly problematic

Craik has handed over a good report. The review has produced some useful proposals, including ways to improve environmental information and to align existing research with regulatory objectives.

It does however throw up some old conundrums for government. Maybe this is why its release was delayed till after the election, and then done with little fanfare.

The review recommends keeping farmers informed about what they can and can’t do on their land by investing in environment department services and systems, yet Coalition governments have cut federal environmental resources by 40% in six years (ACF 2019). You can’t make an omelette without breaking eggs.

It also prescribes a new $1 billion National Biodiversity Conservation Trust as a remedy for biodiversity decline, an amount exceeding existing funding under the National Landcare Program. Same problem, a good proposal but requiring considerable additional resourcing.

Craik also made a number of recommendations, including nationally-aligned policies and encouraging environmental markets, that would require genuine and ongoing federal-state collaboration on policy, something that has mostly eluded federal and state governments over nearly 50 years of trying.

The conundrums are not confined to the recommendations.

The review found that only 2.7% of the 6000 referrals considered under the EPBC Act have been for agriculture.

This is a striking statistic given nearly 90% of all land clearing in Australia is for agriculture, suggesting that the EPBC Act is significantly under-applied and (from the government’s perspective) an indigestible outcome from a review originating in farmer complaints of regulatory burden.

Ley’s brief media release implies that she will defer responding until completion of a much larger review, the forthcoming second 10-year statutory review of the EPBC Act.

It is little wonder Ley is kicking the can down the road, a decision no doubt aided by current controversy concerning Minister Angus Taylor’s involvement in some of the events behind the review (Guardian 2019).

A gem of an opportunity

There is one recommendation however that presents a gem of an opportunity for immediate action.

One of the triggers for the review was complaints by farmers in the Monaro region of southern NSW about the combined effect of federal and state laws affecting the management of native grasslands on their properties (farmonline 2017).

The review prompted a ‘well-resourced’ offer from NSW that federal and state officials work together on two pilot studies, one in the Monaro, to identify what biodiversity needs protecting under both federal and state law and how to achieve this.

Craik supported the idea, proposing the production of non-statutory regional plans under an independent chair.

The NSW offer is significant. The traditional approach of the states towards federal environmental regulation has been to resist and contain, especially in regard to on-ground management, which the states have seen as their exclusive role and a major bulwark against federal jurisdiction creep.

Previous attempts at regulatory collaboration, such as the ‘one-stop-shop’ for development approvals, have focused on regulatory change negotiated between officials rather than on-ground management and service-delivery, and have been conducted in an atmosphere that was at least lacking in trust, if not adversarial.

A genuine attempt to work together on the ground, along with local stakeholders and twin aims of protecting what is ecologically significant while also making life easier for farmers and other businesses, has much better prospects of building the trust necessary for effective regulation. It would also be a valuable investment in social capital.

Cynics may regard the prospects of successful on-ground collaboration as limited. The problem is, we have tried most of the other options with limited success, especially over time.

The environment continues to decline, dramatically according to the latest UN report. The opportunity to trial collaborative regional planning is too good to leave in the in-tray.

Regretfully, it’s too late for ‘no-regrets’

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What’s the pathway for real sustainability following the Australian Election?

By Peter Burnett

Like many people, I was surprised by the win for conservative parties in the recent Australian election. I know there were lots of factors in play, but I thought that the extreme weather of last summer in particular had propelled climate change to the top of the political agenda, especially in the minds of young people, who were enrolled to vote in record numbers. I was reinforced in my views by much of the political commentary. Progressive parties seemed to have reached a similar conclusion, campaigning hard as they did on ambitious environmental policy platforms.

How wrong I was

Financial issues, especially proposed tax changes, appear to have weighed more on the minds of voters. The views of one young voter, who appeared on the television show ‘Q&A’ after the election, seemed to me to encapsulate the electoral mood. This voter commented that she was concerned by climate change (and also, she implied, by the expected opprobrium of her climate-voting cohort) but ultimately voted conservatively because of her concerns about the more immediate impacts of progressive party tax policies on her family.

While the election result could be attributed to various one-off factors, from an environmental perspective the underlying problem is that environment continues to be framed as an issue of progressive vs conservative, left vs right. Unless both sides pursue strong environmental policies then we cannot hope to sustain the policies necessary to avert the ‘dangerous climate change’ of the UN Climate Convention, let alone other disasters such as the loss of a million species predicted in the latest report from the Intergovernmental Science-Policy Platform on Biodiversity and Ecosystem Services (IPBES).

The divide over environmental policy was not part of the political landscape when environmental concerns first became prominent in the public consciousness in the late 1960s and early 1970s. Rather, it emerged much later as vested interests, realising the implications of the policies necessary to counter environmental decline, pushed back hard, including by framing issues in terms of the ‘environment vs jobs’ dichotomy that reflects the dominant and still-powerful post-war paradigm, that of economic growth as progress.

A clash of paradigms

Can we return to bipartisanship? This would require a shift from a growth paradigm to one of sustainability. In pure policy terms the case for such a shift is clear: the growth paradigm became outdated around 50 years ago, when humans realised that the environment was a limited, rather than unlimited, resource. The sustainability paradigm that emerged in response rests on the recognition that we can only consume nature at the rate at which it renews itself. If we exceed that rate, we are headed for disaster.

In political terms however the case is far from clear. The growth paradigm is based on ‘growing the economic pie’ and gives a ‘win-win’ outcome: grow the pie and you grow every slice, including the slice constituted by government spending on the environment. ‘A rising tide lifts all boats’, as they say.

The sustainability paradigm on the other hand gives a ‘win-lose’ outcome. If we consume to our hearts’ content, we court disaster at the expense of future generations (if not our future selves). If on the other hand we live within our environmental means, we do the right thing by future generations, but at the expense of constraining our own consumption, especially by those who do, or aspire to, consume a lot.

And who wants to give government a mandate to constrain consumption, unless convinced there is no other way to look after their children and grandchildren? Although this has been a logical conclusion to draw for over 50 years, this framing has yet to be adopted generally, in part because so many people have a vested interest in either clinging to the growth paradigm or watering down the sustainability paradigm.

This watered-down version of sustainability is that we can live within our means simply by using environmental resources efficiently, with the bonus outcome that efficient consumption will save us money. Another win-win, achieved for example by switching off lights in empty rooms. We might have got away with such an approach in 1969, but in 2019 it’s far too late for such a ‘no-regrets’ approaches.

It’s time (?)

I argued in an earlier blog that it will probably take a significant environmental crisis to generate the social consensus necessary to support a paradigm shift. I still hold that view, although there is at least one example of a country finding an easier path. In the period 2005-2009, the United Kingdom shifted from a bland incremental climate policy to an ambitious goal, enshrined in law, to an 80% cut in emissions, from a 1990 base, by 2050. There was no crisis, but a confluence of factors conducive to change.

The UK Government had commissioned the influential Stern Review, which argued the economic costs of not acting (Sir Nicholas Stern pointed out that climate change is the “greatest and widest‐ranging market failure ever seen”). Al Gore produced his influential documentary, An Inconvenient Truth (aimed at alerting the public to an increasing ‘planetary emergency’ due to global warming). And future Prime Minister David Cameron wanted to modernise the Conservative Party (then in Opposition) and actually beat the Government to the punch in opting for ambition. And the Global Financial Crisis gave the UK Government an opportunity to present ‘green economy’ measures as a major part of the solution to the crisis.

Whatever the precipitating event, we will only respond effectively to environmental issues when we abandon the growth paradigm in favour of one built around sustainability. If that happened, environmental policy would become much more like foreign policy: generally bipartisan because we are all in favour of Australia being a secure country able to pursue prosperity under an effective international rules-base order. If only Australia had a David Cameron or two (circa 2006 of course, not the Brexit David Cameron).

Image by Mediamodifier from Pixabay

All the way with EIA

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There’s still value in persisting with Environmental Impact Assessment

By Peter Burnett

For more than a decade I’ve been working and researching in the field of Environmental Impact Assessment (EIA). I keep telling myself to move on, that my priorities lie in overarching environmental policy frameworks and that EIA is just one decision-support tool (admittedly one that is very popular), best adapted for dealing with local issues. But I can’t stay away from EIA. Is there new life for this old tool?

Why can’t I stay away from EIA?

It’s partly a ‘boys-and-their-toys’ thing. I’m a lawyer by training and EIA has developed from a simple idea of gathering all the relevant environmental information for decision-making into a complex nested set of processes that can take up hundreds of legislative pages. It’s even more complicated in Australia’s federal system, which has EIA at national and state levels. I admire the sophistication of the EIA process as it has evolved and enjoy nutting out how this complicated system applies to any particular development project.

It’s partly an ‘in-the-club’ thing. Having been responsible for administering EIA under Australia’s national environmental law, the Environment Protection and Biodiversity Conservation Act 1999 (EPBC Act) and having been accepted by peers as having some knowledge and expertise, I found myself reluctant to let this ‘club membership’ expire when I changed status from senior public servant to PhD candidate in 2013. So I found a way to make EIA one of my case studies in a thesis that was focused on high level policy relating to sustainability.

But the strongest reason was my belief in the potential of this tool. My instinct was that even though EIA didn’t seem to be achieving its original aspirations of leading to decisions that would protect the environment, not just in particular cases but across the board, it still had potential to play a major role in doing so.

But I wasn’t quite sure why it didn’t seem to work or how it might be improved, beyond the consensus view to make more use of strategic approaches to EIA. This would avoid the ‘salami slicing’ or ‘death of a thousand cuts’ involved in project-based EIA decisions such as the approval of individual mines or housing divisions.

Regulating discretion

One of my research findings concerned the way in which discretionary decision-making works in our legal system. EIA decisions need to be at least partly discretionary to allow decision-makers to tailor approval conditions to a multitude of cases and circumstances. Yet if that discretion is to be exercised consistently, it must also be constrained.

The problem here stems from the way the legal system has evolved to regulate discretion. First there are general principles of administrative law, which are directed to making sure that decision-makers takes fair decisions based on all the relevant information, at the same time preventing them from straying off the reservation by taking irrelevant factors into account or doing someone else’s bidding. These general rules are usually supplemented in EIA by statutory directions to consider specific environmental factors, such as the principles of Ecologically Sustainable Development (ESD).

But in either case the courts treat these as rules of due process. Short of the rare instances in which a substantive decision has no apparent rational basis (or in special cases such as the NSW Land and Environment Court) they won’t go into the merits of the decision. They regard merits as the province of governments or their appointed statutory expert decision-makers.

So they won’t tell a decision-maker what to decide. Fair enough. But Parliament can tell the decision-maker what to decide, although this is harder than it seems.

Take the EPBC Act. At first blush, it seems to be steering decision-makers towards a goal of ESD. But on closer examination the Act uses qualified language, saying it wants to ‘promote’ ESD. Then it takes a reductionist approach and breaks (an undefined) ESD into five ‘principles of ESD’ which the decision-maker must simply ‘consider’.

We’re back to due process. If he or she chooses, the decision-maker can pay lip service to these ‘considerations’ and then take any decision at all, short of irrationality.

Even if the Act used the clearest of language to define ESD and direct decision-makers to achieve that goal in all their decisions, this is probably not enforceable, because in such a broad context the courts would regard the question of whether any given decision achieved ESD (or other clearly defined policy goal) was one of merits or expertise, not law.

Can we fix it?

My research conclusion was that there were only two ways to ensure that individual EIA-based decisions deliver environmental policy goals in an enforceable way. Both involve translating the policy goal into limits of acceptable action at any given place and narrowing the scope for discretion, and the two approaches are related.

The first is environmental planning. In an ideal world of environmental plans, if you want to build a mine, the relevant plan will tell you whether this is possible on an unrestricted basis, or on conditions; for example that there were offsets available for certain vegetation losses.

The second, a combination of specific decision rules plus comprehensive environmental information (which often needs to be geospatial, thus bearing some resemblance to planning) will achieve a similar result. If you want to build a mine and there is a rule against clearing critical habitat, the answer depends in part on whether the mine site is listed as critical habitat. And a decision to approve a mine in an area of critical habitat would be challengeable in court, because this is not an instance of discretion but the breach of a rule.

There would still be a role for EIA and discretion under both these approaches, but its task would be more oriented to the detailed conditions under which the proposal should proceed. Of course, these approaches would be expensive and, in our federal system, particularly complex.

They also shift decision-making away from pluralism and trade-offs towards a more constrained application of rules. This is uncomfortable territory for politicians, but a necessary evil if we are to make EIA an instrument of our high-level policy goals.

Sticking with EIA

So I found a way to satisfy my urge to stay involved with EIA, by connecting it to policy and information. To highlight that connection, consider this poetic metaphor inspired by John Masefield’s poem, Sea Fever. We need to shift our attention from the ‘tall ship’ of EIA to the entire voyage of environmental decision-making, which requires both a clear sense of destination (policy) and fulsome environmental information, ‘a star to steer her by’.

EIA is an important tool but unless we have a clear sense of where we want it to take us and ensure the necessary information is available to guide its application, then this venerable tool will not be delivering the environmental outcomes it was established for.

Image by MonikaP from Pixabay

Twenty Years of the EPBC Act – looking back, looking forward

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Reviewing our national environmental law as if it mattered

By Peter Burnett

It’s hard to believe but Australia’s national environmental law, the Environment Protection and Biodiversity Conservation Act 1999 (EPBC Act), is twenty years old. Given that it lies at the centre of so many important and controversial debates, how is this 20-year old piece of legislation tracking? In a time of climate change, extinction and growing uncertainty, is the EPBC Act still fit for purpose?

As is appropriate for such a critical piece of law, the EPBC Act gets a statutory review every 10 years. That means the EPBC Act is up for its second review later this year. Does it need a little tinkering or a major overhaul?

Because I had been responsible for the administration of the EPBC Act during the first review in 2009, I was asked recently* to share my reflections on how we should frame the review of the EPBC Act.

To my mind, this is a valuable opportunity for environmental policy reform and the thing we need to resist is the notion that it’s simply a matter of looking inside the Act to see how we can make it work better. The way forward lies on the outside of the Act, and I’d like to pose five big ‘outside’ questions.

But before I talk about these, I should tell you briefly what happened to the first review, led by Dr Allan Hawke, a former federal department head, and completed in 2009. Because what happened back then may help us make the most of this second review.

A potted history of the Hawke Review

The Hawke Review was comprehensive in approach and well-packaged in its recommendations.

Hawke was assisted by an expert panel and engaged extensively with stakeholders. He laid the ground well by packaging his recommendations in an integrated nine-point plan, which had something for everyone: new environmental protection for environmentalists; streamlining of regulation for business; stronger institutions for administrators; and a fresh name and look for maximum political effect.

Unfortunately these outcomes never materialised.

It was 2010 by the time government was able to act on the review and (as some will remember) there was significant political turmoil following a leadership ‘coup’ against Prime Minister Rudd, precipitated in part by a proposed mining tax. That culminated in the watering down of the tax, an election, a change of environment minister and a minority government. Of course, minority government in turn increased the ‘transaction costs’ of reform.

New environment minister Tony Burke announced a detailed government response to the Hawke Review in 2011, but in the ensuing period the minority government was giving high priority to pleasing business generally (and mining companies in particular). The Government thus focused its attention on a ‘one-stop-shop’ initiative to reduce regulatory duplication by using an existing mechanism in the EPBC Act, under which States could be accredited to approve development projects on the Federal Government’s behalf. 

As a result, progress on the EPBC reforms slowed to the point where, late in its term, the Gillard Government decided that there wasn’t enough time to get them through and deferred them to the next Parliament. But the next Parliament brought a change of government and the incoming Abbott Government returned to pursuing the ‘one stop shop’.

So, except for some administrative changes, including a policy on biodiversity offsets, the response to the Hawke Review was never implemented. Good policy reform foundered on the rocks of difficult politics.

Back to my questions for the forthcoming review.

The big ‘outside’ questions

1.‘What are we trying to achieve?’

A goal well defined is a goal half achieved. Neither the EPBC Act itself, nor the policy or explanatory documents that surrounded it, answer this question. The Act does include goals such as ecologically sustainable development, but expresses them in qualified language and leaves it open to decision-makers to simply pay lip service to them, so this fundamental question remains largely unanswered.

2. How do we allocate roles & responsibilities between federal and state governments?

Australia’s Constitution operates to share these roles and responsibilities between the two levels of government, but not in any clear or obvious way. However, there is considerable scope for the two levels to agree on a sensible division. In fact there are some agreements of this type, but they date back to the 1990s and were less than ideal even at the time. The EPBC Act is built in part on these agreements and so they need to be renegotiated before major legislative reform.

3. Given that roles are shared, how should the two levels of government cooperate, especially on areas in which overlap in unavoidable, such as environmental information?

Again, the 1990s agreements addressed this but implementation has been desultory. Governments should have tried harder.

4. How do we regulate discretion to ensure conformity with goals?

The freedom that decision-makers have under the current Act is too great: even if the goals of the Act were clear, there is no guarantee that discretionary decisions will implement them. Discretion is necessary in regulatory schemes, but my research suggests there are only two ways to ensure that such discretion is confined to implementing the goals of the Act. The first is to make environmental plans and require that decisions conform to the plans. The second is to have a series of specific decision rules (for example, not to approve development in listed critical habitat). Because characteristics such as critical habitat are usually geospatial, the two approaches are related.

5. How do we ensure that the Act is funded so that it is commensurate with its goals?

The EPBC Act has never been properly funded, going right back to the time when it’s principal architect, Environment Minister Robert Hill, was unable to secure additional funding for his new law. This is one reason why several major mechanisms under the existing Act, including provision for bioregional planning and grants for information-gathering, have been little used. In the absence of election commitments or an environmental crisis, in the current culture there is a high risk that Budget offset rules would strangle reforms.

The bottom line

I leave you with this thought. Unless the government elected later this month addresses the big ‘outside’ questions, the second statutory review of the EPBC Act can only deliver incremental change. That would be a wasted opportunity.

*The National Environmental Law Association (NELA) recently held a short conference to promote discussion of the upcoming review, under the theme of ‘Twenty Years of the EPBC Act – looking back, looking forward’. NELA asked me to reflect on the conference theme.

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