Who’s the BOS?

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

I’m so angry I’m going to write a letter!!

How do scientists get attention when their science is ignored?

By David Salt

Our elected leaders are ignoring the science on climate change, turning their back on an unfolding biodiversity catastrophe and, in so doing, increasing our vulnerability to ‘natural’ disasters while dispossessing future generations. If the scientist’s science is not making a difference, what’s a scientist supposed to do? Well, it seems increasingly they’re penning public letters to our elected leaders pleading with them to acknowledge the science and act on the evidence (rather than hide within their ideology and continue to prop up vested interests).

Last week, 11,000 scientists from 153 countries and multiple disciplines published an open letter in the journal BioScience calling for urgent action on climate change. It pointed out that science on climate change has been well known for the past 40 years and, indeed, had only grown stronger over that time. While the letter generated considerable media attention, it was largely ignored by our political leaders.

Strengthen our environmental law

A couple of weeks ago, 240 of Australia’s leading conservation scientists published an open letter to our Prime Minister calling for stronger environmental law to protect our imperilled biodiversity. This was done in the hope that a soon to be announced decadal review of the Environmental Protection and Biodiversity Conservation (EPBC) Act might strengthen the legislation.

That review has since been announced but, despite considerable media attention given to the scientists’ letter, the government has framed the review as a way of making the environmental law more efficient, cutting the green tape that blocks economic development. And not one of the 240 scientists who signed the letter to the PM asking for stronger environmental law are on the EPBC Review Panel; indeed no biodiversity scientist is included.

Letters to governments from scientists are not an uncommon strategy employed to raise public awareness on issues, most often issues connected with sustainability. More than 12,000 European scientists signed a letter supporting the student climate strikes that took place in March this year. In New Zealand more than 1,500 academics released a similar statement of support.

Canadian scientists also seem very partial to a protest letter. Sixty Canadian scientists wrote to the Canadian PM on climate action in 2006. Eighteen hundred early-career researchers in Canada wrote to the Canadian Government in 2016 demanding scientific integrity in environmental decision making. And 250 international scientists signed a letter to the Canadian PM in 2017 warning about the international importance of Canada’s efforts on climate change.

A warning to humanity

One of the more notable letters penned by scientists on sustainability was the ‘World Scientists’ Warning to Humanity’, released back in 1992 by the Union of Concerned Scientists. It was signed by more than 1700 scientists including the majority of living Nobel laureates in the sciences.

These concerned professionals called on humankind to cut back on our environmental destruction and cautioned that “a great change in our stewardship of the Earth and the life on it is required, if vast human misery is to be avoided.”

Now, surely in a rational world, when your best brains tell you we need to change because we’re heading for disaster, you sit up and listen. But did we? Not in any way that was really measurable.

You didn’t listen last time!

Twenty five years later in 2017 a new cohort of our ‘best brain’ scientists put out a second notice to humanity pointing out we didn’t listen to the 1992 warning. In this article they also showed graphs of resource use, carbon emissions and other key environmental indicators. In their timelines of these graphs they helpfully mark 1992, the year of the first letter. In almost all cases, consumption or levels of emissions either continued on their merry ascent or even increased in rate following the first ‘warning to humanity’. No government or industry, it seems, was too concerned by what the Union of Concerned Scientists thought was important.

In the second notice to humanity the authors wrote: “To prevent widespread misery and catastrophic biodiversity loss, humanity must practice a more environmentally sustainable alternative to business as usual. This prescription was well articulated by the world’s leading scientists 25 years ago, but in most respects, we have not heeded their warning.”

So what is a letter worth? If the response to the second notice is the same as to the first (‘well articulated’) letter, expect business as usual to continue or even to ramp up.

The pros and cons of letters

It’s easy to be cynical about these letter-writing exercises. They often come over as self-righteous and pious. First notice: ‘Listen to me, I am your oracle scientist. If you keep doing what you’re doing you will be sorry.’ Second notice: ‘You didn’t listen to me last time, now you will be very very sorry if you don’t stop what you’re doing!’

As we discovered in Australia in our recent national elections, people don’t like being told they are wrong and need to change, even when the evidence is overwhelming that we do need to change.

There’s also the argument that while a ‘first’ letter sounds revelatory, by the time we reach the 14^th letter, it’s beginning to sound whiny and possibly ‘crying wolf’.

Having said this, it’s easy to be cynical and when these letters come out the deniers, party hacks and apparatchiks line up to start throwing stones; it’s easy to be cynical, but possibly it’s not all that helpful. Scientists should be encouraged to take their concerns to the broader public more often. The have the insights and knowledge that will likely prove critical when we get serious about sustainability and climate change. They need to be an active part of the broader conversation.

Communicating with non-scientists on technical and complex issues is never easy. Scientists should be rewarded when they make the effort. Many universities are now encouraging their scientists to be more active in the communication of their science (and its impact on society) to a broader non-scientist audience. We need more, not less of it.

There’s also the argument that throwing out one warning is unlikely to shift society. Change is always a challenge; just ask anyone who attempted to shift the status quo. You need to keep throwing pebbles because you never know when a message cuts through possibly precipitating widespread change.

And sometimes – when the message is well crafted, the timing is right and the need is obvious to all – sometimes a letter is what really makes all the difference. Einstein wrote* to President Roosevelt in 1939 warning that Germany might develop an atomic bomb and suggested the US should start its own nuclear program – the rest is history.

*Actually, the letter was written by the Hungarian physicist Leó Szilárd who few people knew and signed by Albert Einstein who everyone knew. The message was well crafted, the timing was right and the need obvious to all.

Image by Free-Photos from Pixabay

On the taboo of triage

Some hard choices we don’t want to even think about

By David Salt

Former leader of the Liberal Party, John Hewson, made an astounding comment last week during an address to farmers and industry leaders. “Government ministers are not turning up at events if they have the word ‘climate’ in the title,” he claimed.

Hard to believe but everyone knows that political parties of different stripes avoid certain words that trouble the ideologies that underpin the core beliefs of that party. As George Orwell frequently noted (and dictators often put into practice), language is power.

And it’s not just things tagged ‘climate’. I was amazed to observe the word ‘biodiversity’ disappeared from almost all Government messaging after the Liberal Party (under Tony Abbott) took office in 2013. How is it possible that a term like biodiversity*, that emerged from the academic field of conservation science and surely carries no political baggage at all, is seen to be politically taboo?

Priorities

In a general sense I’d ascribe it to broad government priorities: first we fix the economy, then we look after the environment. It’s a common mantra of political leaders and particularly so for those at the conservative end of the spectrum. I won’t discuss here why I believe this prioritisation of economy first/environment later is wrong (on so many levels) because that’s a big and hairy discussion better left to another time. However, it’s closely related to another taboo: don’t question the primacy of economic growth – growth is good, ad infinitum.

Of course, the empirical evidence on climate change and biodiversity decline is incontestable in terms of evidence and the overwhelming scientific consensus. Which is not to say the evidence isn’t contested in the ideological arena of political power? Just consider the denialists’ most recent effort, a publication titled ‘There is no climate emergency’. It was reviewed and shown to be a text-book example of the denialist dark arts exhibiting bias, inaccuracy and cherry-picked information.

However, surely it’s easier to not mention something rather than expend considerable effort in constructing an ever more elaborate lie to deny the existence of that thing.

Which leads me to a taboo word so consequential that we must never breathe its name: triage.

Well, that’s not completely true. In medical settings like hospitals and treating wounded soldiers on battlefields, ‘triage’ is a common and accepted term. Indeed, the idea was born on the Napoleonic battlefield.

Triage comes from the French word ‘trier’, which means to separate, sort, sift or select. It’s all about setting priorities when the need is urgent and resources are limited. On the battlefield (or in a hospital’s emergency ward) doctors and nurses triage patients to ensure appropriate care is given as quickly as possible depending on available resources: “This soldier we can save, this soldier we can’t.” “This patient needs immediate care, that patient will have to wait.”

Triage this

Medical triage underpins some of the toughest decisions humans have to make but society accepts this process because these decisions are made by trusted experts working for the common good.

But when it comes to other forms of triage – namely conservation triage, landscape triage or enterprise triage – we’re entering dangerously taboo terrain.

Conservation triage refers to prioritising resources for threatened species (eg, “this species we can save, this species we can’t do much for so let’s stop wasting funds on it”); landscape triage refers to prioritising resources for different types of land use (eg, “we’ll support farmers working in this region but not those working over there”); and enterprise triage refers to prioritising resources for different business sectors (eg, “renewables is an emerging industry that should be supported but manufacturing is a mature sector that can’t be propped up”).

From a political perspective, these forms of triage are never to be mentioned because as soon as you do you draw a target on yourself. If you suggest that government should favour one thing while letting another fade away you’ll be accused of picking winners and giving up on losers.

Winners and losers

When triage is applied to threatened species the debate becomes particularly heated. If any politician even dares to suggest that resources might be better used if they were prioritised to where they might have the greatest impact, the media (and opportunistic politicians from the other side) immediately ask: “Which species are you giving up on?!”

It’s an effective attack because the broader community believes no species should go extinct, and the government is careful to avoid any discussion on whether this expectation is being met.

Of course, this expectation is not being met. Indeed, the reverse applies. The world is witnessing a biodiversity catastrophe and Australia leads the developed world in our rate of extinction.

The tragic irony of not undertaking robust conservation triage (which necessarily involves transparency and accountability) is that the pitifully inadequate resources available for threatened species conservation are poorly applied resulting in waste and ineffective conservation. Politicians pretend that all species will be saved while making ad hoc, reactive and opaque decisions to save whatever species is the flavour of the month. It’s not only inefficient, it’s quite immoral and represents a deep failure in leadership.

Whatever, don’t mention the word ‘triage’ as a tool of conservation. Not only is it a politically challenging process to prosecute, it also throws a light on our abject failure on threatened species conservation.

Don’t mention it

Similar arguments apply to other forms of triage, such as landscape and enterprise triage. Picking winners highlights the losers and throws a focus on the government’s failure in letting an unsustainable situation develop.

Attempting triage on land management, for example, would require the government to acknowledge that traditional farming is simply not appropriate in many Australian landscapes contexts, especially in light of predictions connected to climate change. Criticising farmers, of course, is another taboo.

It’s easier to simply not mention ‘climate’ (or ‘biodiversity’ or ‘triage’), and hope your pigeons don’t come home to roost until at least after the next election.

*On biodiversity: The word ‘biodiversity’ is a shortening of the term ‘biological diversity’ and broadly speaking refers to the variability of life on Earth. The word took on official usage in the 1980s (and its creation is attributed to the scientists Thomas Lovejoy and Walter Rosen). Truth to tell, while I attribute the demise of the term ‘biodiversity’ in political discourse to a plot by Abbott’s conservatives to avoid all science, a robust study of the decline of ‘biodiversity’ in conservation policy discourse in Australia has revealed that the downturn in usage began much earlier than Abbott’s rise to government in 2013. This study, led by Alex Kusmanoff at RMIT, suggests that from 2003 to 2014 the term ‘biodiversity’ was in steady decline while the term ‘ecosystem services’, an economic framing of the benefits of nature, was on the rise.

Image: Otis Historical Archives Nat’l Museum of Health & Medicine, Creative Commons Attribution 2.0

How are we going?

What’s in Australia’s decadal Environmental Report Card?

By Peter Burnett

The OECD has just released its ten yearly environmental report card on Australia. It’s called OECD Environmental Performance Reviews: Australia 2019. This is the third review of Australia, following reviews in 1998 and 2007, so we can look at some trends as well as the current report card.

How did we do? Good and bad.

Being reviewed by our ‘peers’

Before reviewing its findings, some background. The OECD’s environmental review program was established in 1991. Since then around 85 reviews have been conducted. The review teams include members from other OECD countries. For the 2019 Australian review these reviewers came from Canada and New Zealand. So the report is not just ‘the view from Paris.’

These reviews aim to help countries assess their environmental progress while promoting domestic accountability and international peer review. Unfortunately, there hasn’t been much sign of this has happened with past reviews. Perhaps Australian governments use the reviews behind the scenes, but publicly at least governments have not said much about them beyond the formal welcome when they hit the desk. And they haven’t generated much debate either. Nor is there much sign of international peer learning.

But these reviews offer a unique opportunity to governments seeking genuine environmental policy advance. Perhaps it’s time to try some encouragement from the sidelines.

Could do better

The report says some nice things about Australia. They acknowledge that we perform well in the OECD ‘Better Life Index’, showing that we rate better, often significantly better, than the OECD average on a range of things, including on environmental quality. That’s great, but our environmental quality rating was earned largely on the back of good scores on urban air quality and public satisfaction with water quality in an OECD index (see www.oecdbetterlifeindex.org/countries/australia).

These are both factors where we get a boost from being a small population in a large country and from the absence of the high-polluting neighbours that you can find elsewhere (South Korea, for example, chokes on China’s industrial emmissions).

The OECD also compliments us on being one of the few OECD countries that has a green investment bank (the Clean Energy Finance Corporation, CEFC) to help finance renewable energy, but they either don’t know, or diplomatically overlook, the fact that we only kept the CEFC because, in one of the stranger events in recent Australian political history, Al Gore dropped in and talked Clive Palmer into opposing its abolition.

So some of our success is more down to good luck than good management. But, of course, it’s the brickbats rather than the bouquets that are more important here. The headlines of the 2019 Review amount to saying ‘this student is not working to potential’, or the old-fashioned ‘could try harder’.

On climate policy and resource efficiency, the OECD recommends that we intensify our efforts to reach our Paris Agreement goal and produce an integrated energy and climate policy framework for 2030. Of course, we nearly did the latter with the National Energy Guarantee, but the politics got too hard.

On governance, which in Australia’s federal system is as much about federal-state cooperation as anything else, the OECD calls for more effort, but they add a new emphasis on state-to-state cooperation, to encourage best-practice and increase efficiency. For example, they recommend standardised approaches to cleaning up old mine sites and a nationally-consistent approach to landfill levies to remove incentives to truck waste interstate. While federal-state cooperation is less politically-sensitive than topics like climate policy, it’s profoundly and perennially challenging. In fact, there aren’t many examples of genuine success, except where there are large federal government carrots or sticks involved, as there were with the successful National Competition Policy of the 1990s. The trouble is that the carrots are expensive and the sticks take great political skill to wield effectively.

On economic efficiency, a key recommendation relates to environmental taxes: to tax fuels that are currently exempt (eg, coal) and increase rates on fuels that are too low (eg, petrol and diesel taxes don’t include an environmental component). In principle this is simple enough but fuel taxes can be political dynamite, not just here but elsewhere, as recent demonstrations in France and Zimbabwe show.

Our ‘special topics’

Finally, the report included two ‘in depth’ chapters on topics chosen by Australia, one on threatened species and biodiversity and the other on chemicals.

The OECD was blunt about species and biodiversity: things were poor and worsening. It found that pressures from humans, such as agriculture and urban development, were increasingly interacting to exacerbate challenges for threatened species. They recommended that Australia invest time and resources in regional plans and strategic assessments and that we get our act together on environmental information, including biodiversity baselines to measure progress. Sensible, but complicated, expensive and a political minefield.

In contrast, the recipe for success on chemicals seems easier: we already have reforms in the works and could achieve much just by getting a move on.

Recurring themes

Some of the themes that recur in the reports include the need for ongoing water reforms, full policy integration and enhanced Indigenous engagement in land management. Some of these themes are really tough because they affect vested interests or might constrain economic growth, but surely we can get Indigenous engagement right.

Other recommendations that I think are achievable without too much pain are the greening of government procurement and comprehensive and consistent approach to environmental information, especially baseline monitoring.

These are very useful reports and hopefully government will do more with the 2019 report than it did with the earlier ones. The ANU has given the reports some early attention by holding several events to mark the release of the report, and the report has already received some significant publicity, eg on the ABC: www.abc.net.au/radio/programs/pm/oecd-says-australia-not-on-track-to-meet-paris-agreement-targets/10764274.

Watch this space.