Down into the weeds again – the new government announces a return to bioregional planning

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By Peter Burnett

In a recent speech at the National Landcare Conference, still-honeymooning federal environment minister Tanya Plibersek announced what she called the ‘third arm’ of the government’s environmental agenda, regional planning.

(The first two arms, by the way, are an overhaul of national environmental law following the Samuel Review (2020) and setting up a federal Environment Protection Agency.)

A little history

More correctly, Plibersek was announcing a return to regional planning. Federal and state governments first signed up to bioregional planning in 1996 as a key action under the National Strategy for the Conservation of Australia’s Biological Diversity.

This National Strategy was our first attempt to meet our commitment under the Convention on Biological Diversity 1992 that each country should have such a strategy.

In 1995, in the run-up to adopting the strategy, then-environment minister Senator John Faulkner convened a national conference on bioregional planning.

But with the conference done and the National Strategy signed-off, momentum dissipated. This was no doubt due to the change of government that followed.

Although the new Howard government remained committed to bioregional planning, and in fact legislated for it as part of its big and shiny new national environmental law, the Environment Protection and Biodiversity Conservation (EPBC) Act, there was a problem.

The EPBC Act was seriously under-funded. With available funds sucked up by the day-to-day business of project-based environmental assessment and approvals, there was simply no money left for bioregional planning.

Eventually, in 2012, a later government found enough money to prepare bioregional plans for four of Australia’s marine bioregions. But there have never been plans for Australia’s 89 terrestrial bioregions.

What’s on the table this time?

Fast-forward to the present.

Following a recommendation for regional planning in the Samuel Review (NB. no longer bioregional planning, although the name change is not that significant) the Morrison government put its toe in the water by announcing $2.7m in the 2021 federal Budget for a pilot terrestrial bioregional plan.

By the time Morrison lost government in May 2022, this pilot program had not translated into on-ground action. Instead, Morrison had put more money on the table in the 2022 Budget (tabled in the lead up to the May election).

This time the government announced some $63 million for up to ten regional plans. However, this Budget didn’t pass the Parliament before the election of the Albanese government and so we must wait until next month (October) to see whether Treasurer Jim Chalmers keeps this measure in his replacement 2022 Budget.

In the meantime, Plibersek has announced the government’s commitment to regional planning and laid down some markers. She acknowledges that the idea is not new and says she will build on good work already done.

She says regional plans will improve federal environment protection by providing insight into cumulative impacts and enabling threats to threatened species to be addressed more effectively.

Plibersek wants to cooperate with states and territories and she wants the plans to be integrated across land uses, programs and tenures. She also wants the plans to improve resilience to climate change.

And, significantly, she wants to start now, so that ‘regional planning will be well underway by the time we pass our improved environmental laws next year’.

It’s complicated

This is an ambitious agenda, particularly from the low base of a fragmented environmental information base and a depleted environment department.

What challenges will Plibersek face? To borrow the title of one of my favourite Meryl Streep movies, ‘It’s Complicated’.

Plibersek needs to partner with state governments, who traditionally resist federal government involvement in land management, which they see as both their backyard and their bread and butter (excuse the mixed metaphors).

She will need to offer incentives, and in this context ‘better environmental outcomes’ doesn’t cut it. If I were a state I’d be after money for environmental restoration, by the truckload.

Assuming one or more partner governments step forward, regional planning would need to integrate with a myriad of other plans which, depending on location, could include metropolitan plans and strategies, state environmental plans and policies, catchment management plans, town plans, local environment plans and so on.

Then there are other federal plans to fit in with, including the Murray Darling Basin Plan and Regional Forest Agreements.

Once the government gets into the planning itself, it will need a full suite of supporting policies. What are the planning objectives? Do they include creating reserves for areas of high environmental value, such as critical habitat? Should zoning for development be done on the basis of maintaining ecological function? Would development be allowed in areas containing significant environmental values and if so, would an environmental-offset policies such as ‘no net loss’ apply?

Then there’s the need for appropriate governance. There’s no point in doing these plans on a one-off basis. They would need to be revised regularly, say every five years. Climate adaptation will make this even more complex.

Finally, how would public consultation be undertaken and who would undertake it?

Climb lower mountains

I could go on but I’m running out of space. I think there’s a real risk here of taking up mountain climbing and choosing Mt Everest as one’s first summit.

Given the minister’s determination to move on this front ahead of her major reform package next year, the risks of this could be avoided by treating the early regional plans as experiments — by confining the exercise to two or three regions and focusing on skill acquisition and capacity-building rather than aiming to take a full suite of plans through to legal adoption and operational use.

I know it’s hard in a political context, but with something this ambitious I think it’s important to allow for failure.

Rather than tackle Mt Everest straight up, a little practice in the foothills could be just the thing. That way, injuries from the inevitable falls will be minimal; and the whole process won’t be discarded when the going gets rough.

Banner image: Image by Joshua_Willson from Pixabay

Federal budget: $160 million for nature may deliver only pork and a fudge

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By Peter Burnett

Treasurer Josh Frydenberg’s cash-splash budget has a firm eye on the upcoming federal election. In the environment portfolio, two spending measures are worth scrutinising closely.

First is a A$100 million round of the Environment Restoration Fund – one of several grants programs awarded through ministerial discretion which has been found to favour marginal and at-risk electorates.

Second is $62 million for up to ten so-called “bioregional plans” in regions prioritised for development. Environment Minister Sussan Ley has presented the measure as environmental law reform, but I argue it’s a political play dressed as reform.

It’s been more than a year since Graeme Samuel’s independent review of Australia’s environment law confirmed nature on this continent is in deep trouble. It called for a comprehensive overhaul – not the politically motivated tinkering delivered on Tuesday night.

A big barrel of pork?

The Environment Restoration Fund gives money to community groups for activities such as protecting threatened and migratory species, addressing erosion and water quality, and cleaning up waste.

The first $100 million round was established before the 2019 election. In March 2020 it emerged in Senate Estimates that the vast majority had been pre-committed in election announcements. In other words, it was essentially a pork-barelling exercise.

The grants reportedly had no eligibility guidelines and were given largely to projects chosen and announced as campaign promises – and mostly in seats held or targeted by the Coalition.

Given this appalling precedent, the allocation of grants under the second round of the fund must be watched closely in the coming election campaign.

A tricky Senate bypass

Australia’s primary federal environment law is known as the Environmental Protection and Biodiversity Conservation (EPBC) Act.

Under provisions not used before, the need for EPBC Act approval of developments such as dams or mines can be switched off if the development complies with a so-called “bioregional plan”.

Bioregions are geographic areas that share landscape attributes, such as the semi-arid shrublands of the Pilbara.

In theory, bioregional plans deliver twin benefits. They remove the need for federal sign-off — a state approval will do the job – and so eliminate duplication. And national environmental interests are maintained, because state approvals must comply with the plans, which are backed by federal law.

But the government’s record strongly suggests it’s interested only in the first of these benefits.

Since the Samuel review was handed down, the government has largely sought only to remove so-called “green tape” – by streamlining environmental laws and reducing delays in project approvals.

Bills to advance these efforts have been stuck in the Senate. Now, the government has opted to fund bioregional plans which, as an existing mechanism, avoid Senate involvement.

Meanwhile, the government has barely acted on the myriad other problems Samuel identified in his review of the law, releasing only a detail-light “reform pathway”.

A rod for the government’s back?

Ironically, bioregional plans may create more problems for the government than they solves.

First, the surveys needed to prepare the plans are likely to spotlight the regional manifestations of broad environmental problems, such as biodiversity loss.

And the EPBC Act invites the environment minister to respond to such problems in the resulting plans. This implies spelling out new investments or protections – challenging for the government given its low policy ambition.

The federal government would also need to find state or territory governments willing to align themselves with its environmental politics, as well as its policy.

Of the two Coalition state governments, New South Wales’ is significantly more green than the Morrison government, while Tasmania is not home to a major development push.

Western Australia’s Labor government has been keen to work with Morrison on streamlining approvals, but fudging environmental protections is another thing altogether. And Labor governments, with a traditionally more eco-conscious voter base, are particularly vulnerable to criticism from environment groups.

The government may fudge the bioregional plans so they look good on paper, but don’t pose too many hurdles for development. Such a fudge may be necessary to fulfil Morrison’s obligations to the Liberals’ coalition partner, the Nationals.

Tuesday’s budget contained more than $21 billion for regional development such as dams, roads and mines – presumably their reward for the Nationals’ support of the government’s net-zero target.

Bioregional plans containing strict environmental protections could constrain or even strangle some of these developments.

But on the other hand, the government may be vulnerable to court challenges if it seeks to push through bioregional plans containing only vague environmental protection.

For a government of limited environmental ambition bioregional plans represent more a political gamble than a reform.

Morrison has clearly rejected the safer option of asking Ley to bring forward a comprehensive response to the Samuel review, casting streamlining as part of a wider agenda.

Such a reform would have better Senate prospects and created room to negotiate.

Morrison could also have promised to reintroduce the streamlining bills after the election. But he must have concluded that the measure has no better chance of getting through the next Senate than this one.

What price fundamental reform?

If the government successfully fudges bioregional plans, the result would be watered-down national environmental protections.

This would run completely counter to the key message of the Samuel review, that to shy away from fundamental law reforms:

“is to accept the continued decline of our iconic places and the extinction of our most threatened plants, animals and ecosystems”.

Clearly, good reform is too expensive — politically as well as fiscally — for this budget.

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

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

Banner image: Feed them pork, win their votes. (Image by BeckyTregear @ Pixabay)

Federal environmental planning: the broken leg of the stool

Our national environmental law is a bit wobbly because it doesn’t take planning seriously

By Peter Burnett

Our big and complex national environmental law is called the Environment Protection and Biodiversity Conservation Act 1999 (or EPBC Act). When you unpack its major components (as I did in a recent blog) they sort themselves quite nicely into three streams: 1. Identify Matters of National Environmental Significance (MNES) for protection; 2. Plan for Conservation; and 3. Assess and Approve for Development or Trade.

The streams can be seen as the three legs of a stool, with protecting, conserving and approving designed to combine to ensure that our most important environmental values are looked after, but without blocking economic activity more than is necessary. At least, that’s the theory. Unsurprisingly, there are some problems in practice and in this blog I’ll start with the biggest: the planning leg is half-missing.

One leg is half-missing

The Act provides a planning mechanism for everything that it protects or conserves: bioregional plans for biodiversity and other values; wildlife conservation plans for listed marine, migratory and conservation-dependent species; recovery and threat abatement plans for threatened species; and management plans for heritage places, Ramsar sites and Commonwealth reserves.

The problem is that many of these plans are dated, underdone, or were never created in the first place. I’ll illustrate by examples. In each case I looked up the relevant place or plan on the Department of the Environment and Energy website [www.environment.gov.au] and followed the links.

Dated plans

A number of plans look dated to me. For example, the very first recovery plan listed in the Species Profile and Threats Database, for the great desert skink, was made in 2001 and expired in 2011. The executive summary of the plan says that the Recovery Team will review implementation progress annually and any changes made to the plan will be made available to all stakeholders. There was nothing on SPRAT to indicate whether this had occurred.

Underdone plans

Other plans look underdone. I picked the recovery plan for Carnaby’s cockatoo, an endangered species found in the woodlands and plains around Perth. The species has been controversial because Perth’s development often involves clearance of the cockatoo’s habitat.

The recovery plan identifies eucalypt woodlands as critical to the survival of the cockatoo, in part because they provide breeding hollows, which the plan notes take 100-200 years to develop. It goes on to identify protection of nesting habitat as a recovery action and adopts as a performance measure for this the maintenance of the extent of nesting habitat (trees with nesting hollows).

The implication seems clear: don’t clear old growth woodlands. Moreover, the EPBC Act prohibits the environment minister from acting inconsistently with a recovery plan, so a plan containing a statement like this would block development in these areas.

However, the plan stops far short of such language. Under the heading ‘guide for decision makers’, it states only that the success of the plan requires that decision-makers avoid approving activities that will adversely affect the cockatoo, and that they should minimise or mitigate those impacts that cannot be avoided (ie. apply the ‘avoid, mitigate, offset’ hierarchy). The plan goes on to cite WA EPA guidance that it is ‘unlikely to recommend’ approval of projects with a significant adverse impact on the species.

In effect, the plan simply points out that if decision-makers want to save the cockatoo, significant impacts should be avoided, or at least minimised. By pulling its punches, the plan leaves it open to the federal minister to approve the destruction of critical habitat, provided he or she duly considers the plan and applies the mitigation hierarchy to the extent the minister regards as practicable.

Missing plans

At a larger scale, looking at biodiversity more generally, there are no bioregional plans for Australia’s 89 terrestrial bioregions. Nil, none, zero!

Fortunately, Australia’s marine area is much better catered for, with bioregional plans for four of five marine bioregions, supplemented by management plans for marine park networks in each bioregion plus one for the Coral Sea Marine Park.

It’s the politics stupid

Of course, there is a practical explanation for the absence of terrestrial plans. Bioregional plans require joint federal-state action, except on the small portion of land classed as Commonwealth land. Federal cooperation is never easy, even between governments of the same political flavour. Moreover, preparing lots of plans would be expensive and could well stir up local concerns about the whole gamut of development and conservation issues in the region concerned. Such a scenario is, to say the least, politically unappealing.

Yet without bioregional plans project-based environmental impact assessment (EIA) must proceed without contextualised, place-specific guidance on what needs to be conserved and where development can occur. This perpetuates one of the major flaws with project-based EIA, the ‘death of a thousand cuts’, where small environmental impacts are approved in ignorance of their cumulative effect.

The bottom line

While under-done recovery plans may provide some of the guidance that should be coming from the absent bioregional plans, at the end of the day the stool has only two-and-a-bit legs, leaving development decisions pretty much at the minister’s discretion.

This means that a minister who wasn’t really interested in protecting Matters of National Environmental Significance won’t find themselves hemmed in by plans. Even a minister determined to protect and conserve MNES would find that the absence of contextual information a major problem in seeking to make good decisions, just as it’s hard to see where you’re going in a fog.

Who wants a stool with two and half legs?

Image: A pair of Carnaby’s cockatoos feeding on banksia. This species is endemic to south-western Australia. It has experienced widespread loss of nesting and feeding habitat and is considered endangered under the IUCN Red List, and Australian federal and state legislation. Since the 1950s, numbers of the Carnaby’s cockatoo have declined by more than 50%, with its range contracting by over 30%. Image by Leonie Valentine.