Environmental policy came from the side of the angels

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Lynton Caldwell, NEPA and the birth of Environmental Impact Assessment

By Peter Burnett

When did the age of modern environmental policy begin? Some claim it kicked off with the publication of Our Common Future (also known as the Brundtland Report) in 1987. This landmark document defined the notion of ‘sustainable development’ and stressed the need for integrating economic, social and environmental approaches. Others suggest 1972 is more appropriate as it was the year of the Stockholm Conference and the establishment of Environment departments in many countries around the world.

But I’m going to suggest to you that 1969 and drafting of the US National Environmental Policy Act (NEPA) is really when environmental policy began, and it owes much to a visionary political scientist named Professor Lynton Caldwell. And it’s not just that Caldwell was astute enough to understand what effective environmental policy needed, he was also canny enough to know when to make his pitch.

NEPA is famous for introducing the world to the concept of environmental impact assessment (EIA), a mechanism now used in almost every country. But NEPA stands for so much more.

Interdisciplinarity

Its antecedents lie in Caldwell’s earlier work. In 1963 he published an article entitled ‘Environment: A New Focus for Public Policy?’ 1963! That’s only a year after Rachel Carson published Silent Spring, the book often regarded as having launched the modern environment movement.

In his article, Caldwell argues for, and thus invents, ‘environmental policy’. He calls for, among other things, an interdisciplinary approach to this new creature. Caldwell was a Professor of Government at Indiana University and he practised what he preached. He embarked on a course of interdisciplinary training and started hanging around with ecologists. (In 1963, ecology was still a relatively small discipline.) These days, interdisciplinarity is a much lauded goal (if little practiced) but back then it was a very brave undertaking.

In 1964 Caldwell began to operationalise his ideas by presenting them to a workshop for economic planners. Brave again. Not surprisingly, most of them were, as Caldwell later reminisced, ‘baffled’ by his argument and most of them rejected it as irrelevant. That’s except for one now world famous economist, Abraham Maslow (of ‘Maslow’s hierarchy of needs’ fame). Maslow understood what Caldwell was advocating. He later offered Caldwell constructive suggestions, declaring Caldwell to be ‘on the side of the angels’.

The time was ripe

By the late 1960s a wave of environmental concern was sweeping the Western World, particularly in America. Some major environmental disasters contributed to this. In 1969 and in America alone, the Santa Barbara oil spill despoiled the California coastline while on the other side of the country the Cuyahoga River was so polluted it actually caught fire.

Various members of Congress responded by proposing environmental laws. Public opinion was galvanised.

Against this backdrop, one of the leading proponents of reform in Congress, Senator Henry ‘Scoop’ Jackson, hired Caldwell to help with Jackson’s environmental Bill. Initially, Caldwell wrote a report for a Congressional committee on what a national environmental policy might be.

He later wrote that he anticipated the need for ‘action forcing provisions such as impact statements’ to support a national policy statement. But Caldwell held back as he suspected Senator Jackson ‘did not appear ready to endorse so novel and intrusive a proposition’.

Later, however, in appearing before the committee, Caldwell was able to make his arguments for his action forcing provisions and they were then included in the compromise bill. That bill became the NEPA. Caldwell had bided his time and ‘threw his pebble’ (to borrow a term from one of our earlier blogs) when he perceived it would have maximum impact.

A remarkable piece of legislation

NEPA itself is a remarkable piece of legislation. Its statement of environmental policy goals is visionary. It talks about the need for a global approach three years before the world first met to talk about a global approach, at the UN Conference on the Human Environment held at Stockholm in 1972.

The legislation talks about each generation being trustees of the environment for future generations and sharing life’s amenities – this was 18 years before the Brundtland Report proposed the concepts of sustainable development and intergenerational equity.

It refers to maintaining the diversity if life just 12 months after Dasmann first wrote of biological diversity and 20 years before Lovejoy coined the term ‘biodiversity’.

And NEPA required the preparation of state of the environment reports (as ‘environmental quality reports’), 10 years before the OECD produced one and called on its members to do likewise. NEPA sought to drive policy integration 10 years before the OECD began to promote the same concept.

Ahead of its time?

Unfortunately most of the enormous potential of NEPA was not realised. True, it brought environmental impact assessment, EIA, to the world. But Caldwell, Jackson and the others behind NEPA had a much bigger vision than EIA.

If NEPA had been applied as an ordinary reading of its words would suggest, all US government agencies would have brought their decisions in line with a long-term policy vision directed to avoiding environmental degradation, and these decisions would have been supported by comprehensive information and research facilitated by a new institution, the Council of Environmental Quality. These things did not happen because government agencies were antagonistic and the US Supreme Court read the law down to a set of procedural requirements.

Caldwell’s vision and achievements, which would have been much greater if others had not been working against them, are not widely known. And to top it off, he was a registered Republican voter, working for a Democrat: if only environment was the bipartisan issue today that it was then.

Image: Lynton Caldwell enjoying the great outdoors. Indiana University Archives

Environmental FoIs & the ‘decision-making onion’

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Reasons behind an environmental decision are often concealed beneath layers of government process.

By Peter Burnett

Why is it that despite reforms to federal Freedom of Information (FoI) laws, it seems it’s getting more and more difficult to get information out of government on the reasons behind decisions about the environment? These reforms, by the way, declare that embarrassment, loss of confidence in government and public confusion are irrelevant to decisions about whether to release documents. And yet the reforms don’t seem to have helped much.

Where officials might once have claimed substantive exemptions to release, based on grounds like confidentiality, now governments starve FoI processes of funding so that requests are more likely to be strangled by delay or blocked under an exemption based on the request involving an unreasonable diversion of the agency’s resources. Requests are also constricted by charging fees.

Information hidden in layers

Issues of exemptions, delays and fees aside, there can be a question of where to look for pertinent information. Sometimes substantive information is concealed (not necessarily deliberately) under layers of government process. The example that comes to mind is that of decisions concerning the approval or refusal of development projects, following environmental impact assessment (EIA). In the example these decisions are made under the federal Environment Protection and Biodiversity Conservation Act (EPBC Act).

Say you want to know why a minister has approved a controversial project. It’s like an onion: you will have to peel back the layers of advice and deliberation to get to the heart of the matter.

First, there’s the environmental impact statement. You would think this would be a public document, but it’s only public for a limited time, when it is published for public comment. After that you’ll have to make an FoI application. In any event, because it is prepared by the proponent it will tell you about the project but it won’t contain any ministerial thinking. Let’s call this layer 1.

Then there’s the environment department’s ‘recommendation report’, their statutory advice to the minister on whether the development should be approved and, if so, on what conditions (this is layer 2). This is available on application, under the EPBC Act rather than under FoI, although the department can still claim some FoI-style exemptions. Assume however that you’ll get it. As it’s a legal document, it will be couched in formal and evidence-based terms. It will tell you more, but it’s probably not the whole story.

Then there’s the department’s ‘covering brief’ (layer 3) to which the statutory documents are attached. While the brief might blandly transmit the recommendation report and other decisional documents to the minister, equally it might get more directly to the nub of the issue than the recommendation report, and better reveal the ‘flavour’ of the department’s advice. The brief will be available under FoI, subject to the usual exemptions and processes, but a separate application will be needed.

The next layer (number 4) might be advice from a political adviser in the minister’s office. Advisers are not officials, not bound by public service rules or ethics. This advice might be oral or written. If it’s written, it’s still subject to FoI, but in practice it probably won’t be available because often takes an ephemeral form, such as a ‘sticky note’, which might be discarded once the decision is made and the documents returned to departmental custody.

Invisible and hidden layers

The Minister might also meet with the department to discuss its advice. While officials may make a record of the meeting (number 5), such records are often bland: a minister may probe departmental advice, but even if that probing reveals the minister’s political thinking, officials may think that it is not their business to record political comments or inferences.

The minister may also discuss the issue with proponents, lobbyists or other political players, many of whom pride themselves on working invisibly behind the scenes. Such discussions are not likely to be recorded in detail.

There is another process for obtaining reasons (behind decisions), but it doesn’t seem to yield much. Under the Administrative Decisions (Judicial Review) Act (ADJR Act), a person aggrieved by a decision can ask for a formal statement of reasons. The idea is to elicit enough detail about a decision to help the person get legal advice on a legal challenge. The problem is that ministers get government lawyers to draw-up these statements, so they become legally-justifying rather than records of actual thinking. These ‘section 13’ statements are likely to tell you that the minister had regard to all the considerations laid down in the Act and then balanced them carefully in the exercise of discretion. Unless someone’s made a legal mistake in the decision process, it can be a story of ‘move along, nothing to see here’.

Why not just ask?

Rather than wade through FoI processes, there’s always the option of asking. A journalist for example might ask about the reasons for a decision. Politicians of course are legendary for not answering questions.

Another channel for asking is for Senators to ask questions in Estimates Committees. These questions are usually answered by public servants. You could be forgiven for expecting public servants, with their statutory duties of honesty and integrity, and their mantra of ‘frank-and-fearless’ advice, to be straight-shooters. However, in public forums they often aren’t, at least not in response to ‘advice’ questions. This is because public servants ‘advise’ government on policy, but usually do not ‘advise’ other parties.

My experience in Senate Estimates Committee hearings was one of public servants (including myself) answering questions directly, but literally and without elaboration, thereby meeting legal and ethical obligations, but sometimes frustrating Senators who were, in effect, asking for or about advice. Sometimes Senators don’t ask quite the right question, but if they do, the answer might be that the public servant can’t answer because it’s a question about advice!

At the end of the day, you can trust public servants, but they often won’t be much help on the most important questions: the information is concealed by the nature of their duties.

The decision onion

So there you have it. If you try to peel all the layers of the ‘decision onion’, the outer layers will come away easily enough, if slowly, and won’t tell you much. But the inner layers are resistant to removal. Advice from advisers is likely to be ephemeral. Discussions between Ministers and lobbyists or colleagues probably won’t be recorded in detail. An ADJR statement of reasons will be formal and unlikely to offer any real insight. And Estimates hearings won’t reveal advice.

But if you want to know what really was really driving a controversial decision, official processes probably aren’t the way to find out. Perhaps the story will come out years later in a political ‘tell all’ book.

Image by Chris Stermitz from Pixabay

Making better sense of Australia’s Environmental Impact Assessment

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Surely we can put an end to overlap and duplication

By Peter Burnett

Environmental Impact Assessment (EIA) is a cornerstone of our system for protecting environmental values in Australia. A long standing problem with the EIA process has been the need to do them to meet both state and federal requirements.

You wouldn’t think that eliminating duplication and overlap between federal and state EIA processes (without compromising environmental outcomes) would be that hard. And yet so it has proven to be.

To date, there have been four attempts to address this issue, on each occasion by creating a mechanism under which the Commonwealth could accredit state EIA processes. Success has been limited and, with an election coming on, some are returning to this rather muddy policy watering hole. The Minerals Council of Australia, a major industry stakeholder, has renewed its call for more progress in this area, while Labor on the other hand recently ruled accreditation out, though it remains in favour of efficient regulation.

Surely there’s a solution here? To appreciate how difficult the issue is, consider what has gone before.

A short history of the fight to end duplication

Prime Minister Hawke was the first to put this topic on the agenda. He raised it as part of his 1990 ‘New Federalism’ push. The overarching theme was efficiency, and removing duplication in EIA was one way to achieve it.

The main result was an accreditation mechanism in the Intergovernmental Agreement on the Environment (IGAE, 1992). Unfortunately, attempts by several states to gain accreditation came to nought. This can be put down in part to the fact that Hawke had been replaced as Prime Minister by Paul Keating, and Keating wasn’t a great fan of cooperative federalism.

Next up it was Robert Hill, Environment Minister in the first Howard Government. He went one step further than the IGAE and included provision for accreditation in Australia’s new national environmental law, the Environment Protection and Biodiversity Conservation Act 1999 (EPBC Act).

There were two types of statutory agreement, one for accreditation of environmental impact assessment processes (‘assessment bilaterals’) and another for accreditation of state final decisions on development proposals (‘approval bilaterals’). With an assessment bilateral, there is only one EIA but still two decision-makers, one federal and one state. Only an approvals bilateral gets it down to a single process and a single (state) decision-maker. Despite the availability of a statutory process, agreement proved difficult and although some assessment bilaterals were negotiated in the early 2000s, approvals bilaterals proved a bridge too far.

The Gillard government was the next to take on the challenge, this time under the title of a ‘Seamless National Economy’ program. However, Prime Minister Gillard pulled the plug on negotiations, on the basis that the result of accrediting different state systems would be to ‘create the regulatory equivalent of a Dalmatian dog’.

Finally, the Abbott Government pursued a ‘one-stop-shop’ initiative to accredit the states. It managed to negotiate assessment bilaterals with every state, a modest achievement, but the holy grail of approvals bilaterals fell by the wayside when the Government discovered that it needed some minor tweaks to the EPBC Act to make accreditation work smoothly. Environment groups were successful in persuading several cross-benchers about the risks of environmental standards slipping, and the Government allowed its amendment Bill to lapse with the 2016 election, without calling on a final vote.

Is it worth another try?

Why is doing this so hard?

The first problem is partly that environment is a shared federal and state responsibility. Even though land management is primarily a state responsibility, the feds were actually on the scene first, with the Whitlam Government passing Australia’s first EIA law in 1974. The feds have been there ever since and I can’t see them vacating the field in favour of the states.

Nor can I see a solution in amending the Constitution. The Hawke Government looked at this in 1989 but, in contrast to some non-environmental Constitutional proposals it had taken to referendum, abandoned the idea without taking it to the people. Giving all the power to one level of government seems to be going too far, yet this is cake that resists the cutting knife.

The second problem is that decisions to approve (or not) development proposals like mines are discretionary. While an approvals bilateral under the EPBC Act could protect against egregious decisions (eg a development likely to cause an extinction), it’s much harder to write an agreement that would stop a pro-development state minister from simply ‘going easy’ on a developer by imposing weak conditions. Standards might be maintained on paper, but accreditation might exacerbate the existing weakness of EIA, the so-called ‘death of a thousand cuts’, by making each of those cuts a little larger.

This leaves the option of going around the problem. If we can’t solve it by accreditation, what about a completely different approach? If there are two objectives, reducing duplication while protecting the environment to a high standard, I think there are only two approaches that can work.

Environmental planning

The first is environmental planning, which involves getting ahead of the game and working out, comprehensively, where development can and can’t occur and under what conditions. If environmental planning is done well, approving particular developments can become quite straightforward. Trouble is, it’s expensive and may also be politically unpalatable because it can bring on all your development disputes at once, as the planners start consulting society about various possibilities, some of which may otherwise never have arisen.

The second is a very detailed set of rules, for example a rule prohibiting development in areas of critical habitat for threatened species. A major problem with this approach is that you either have to identify sensitivities such as critical habitat in advance (which starts to look like environmental planning) or identify them during assessment, which could weigh individual assessments down with some expensive and time consuming extra work, thus failing the test of efficiency.

The solution? If there were an easy option, governments would have taken it long ago. My own view is that we have to bite the bullet and do environmental planning. It would cost, but if done well (which has to include doing the consultation well) I think the investment would pay long term dividends, both environmental and economic. Trouble is, modern governments are very focused on the short-term and tend to give short shrift to long term propositions. The solution is there, but don’t hold your breath.

[Image by Sumanley xulx from Pixabay]