All’s fair in love and law?

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Framing environmental regulation as ‘green tape’ and challenges to environmental approvals as ‘lawfare’

By Peter Burnett

‘Green tape’ and ‘lawfare’ are back in the headlines. This time the impetus comes from the Government’s latest ‘congestion-busting’ initiative and the impending publication of a new study into litigation by environment groups.

So, is there a tangle of ‘green tape’ out there that needs to be ‘busted’? What about an environmental conspiracy to bog down coal mines and other development projects in litigation? Or are we witnessing another round in the seemingly endless political struggle to control the environmental policy agenda?

These are timely questions because Australia’s premier environmental law, the Environment Protection and Biodiversity Conservation Act 1999 is under review and due to report in October. This will lead to major policy decisions and probably new legislation.

There’s a lot at stake.

More than coloured tape

The term ‘red tape’ has been with us for a long time. It goes back to the 16th century and the Spanish king Charles V, who ordered the use of red tape to bind important state papers (the modern equivalent would be Cabinet papers). String was deemed good enough for the rest.

Only in more recent times did the term acquire the pejorative meaning of ‘unnecessary bureaucratic process’.

The term ‘green tape’ is a modern variation on this theme, and I think it may have emerged in Australia. I first noticed it when the Campbell Newman government in Queensland tabled a bill in 2012 with ‘Greentape Reduction’ in the title. It appears to be a deliberate attempt to extend the pejorative connotations of ‘red tape’ to environmental regulation.

Part of the problem in challenging this framing is that there is some truth underlying the term. Environmental impact assessment (EIA) in particular seems to take a long time, and some of this is caused by overlap, if not duplication, between federal and state EIA laws.

‘Green tape’ is also linked to things beyond the laws themselves. In 2010, compliance with statutory EIA timelines under EPBC was around 90%. From 2013 governments, initially Labor but mostly Coalition, started cutting the Public Service, including the Environment Department. Compliance with timelines dropped to about 60% in the last financial year, prompting the Morrison government to fund ‘congestion-busting’ measures that have brought compliance with timelines back up to around 90%.

In other words, it’s partly a question of resourcing. Governments take the money away, don’t like the resulting drop in performance, and then reinstate the funding and return to previous performance levels, thus ‘fixing’ the problem.

It’s complicated

Many federal EIA’s involve state EIA as well. Federal and state laws overlap but don’t necessarily align. Federal and state officials work in different cultures and usually apply different policies. All this complicates the regulatory process.

Another complication is that the time taken to assess and approve a project is the sum of the time taken by government to take its regulatory steps and the time taken by the proponent company to respond to requests for information or comment from the regulator.

Companies, especially big ones like BHP and Rio Tinto, have bureaucracies too. Sometimes they are slow to respond. Sometimes, I’m told by assessment officers, they resist providing the requested information, either because it’s expensive and time-consuming to collect, or because the information might not be convenient to their cause.

At the end of the day, there is a problem to be fixed here and the government’s recent announcement that federal and state officials will form ‘joint assessment teams’ for major projects is a good one, provided they resource the teams properly and don’t just pressure officials to meet unrealistic deadlines.

But the ‘green tape’ framing devalues the work of public servants and is, in part, caused by those who use this terminology.

‘Lawfare’ and the right to challenge

The government and some businesses have argued at several points in recent years that environmental groups have used their right to challenge environmental approvals in the Courts on a tactical basis, hoping to obstruct development. This is referred to as ‘lawfare’.

Once again, there is some factual basis to the term. In 2012, someone hacked into Greenpeace computers and subsequently leaked a document entitled Stopping the Australian Coal Export Boom: Funding proposal for the Australian anti-coal movement to the media.

One element of the plan to was to ‘run legal challenges that delay, limit or stop … major infrastructure projects (mines, rail and ports)’.

Subsequent academic research has found no significant evidence that the courts have been used to delay projects.

One recent study finds that federal court records do not reveal evidence of the worst kind of delaying tactic, which is to abuse court processes by bringing unmeritorious cases.

The courts have strong powers to deal with unmeritorious claims, including throwing them straight out (‘summary judgment’) and even banning the applicant from bringing further claims without their approval (‘vexatious litigant’). So it’s not surprising that such cases are rare.

But what about meritorious cases, by which I mean cases based on arguable legal grounds? In that case, it’s hard to separate cases based on genuine objections to the individual development from cases driven by a wider agenda, such as the strategy proposed by Greenpeace. This is because the motive, and perhaps the source of funding, often remains hidden.

Further, there is an argument that if the case is meritorious, then it doesn’t matter if the applicant has a wider agenda. This is because well-founded challenges help to ensure that decisions are made properly, thus advancing once of our foundational social values, the ‘rule of law’.

You can see what a tricky issue this is.

Political framings

In the meantime, the EPBC Act is undergoing its second 10-year review and there are many serious issues to address, most especially concerning how to halt the ongoing decline of the environment itself.

‘Green tape’ and ‘lawfare’ are political framings designed to advance a particular agenda. That agenda reflects some valid concerns but there is much more at stake.

What we need is a political framing of ‘environment degradation’ that supports an agenda of ‘we need to fix this before it’s too late’.

Image by Gerhard Lipold from Pixabay

Who’s the BOS?

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

By Peter Burnett

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

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

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

It is complicated

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

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

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

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

So we are only talking about assessment bilaterals here.

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

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

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

How do the two offsets policies compare?

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

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

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

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

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

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

Different policies in different states?

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

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

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

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

Streamlining or watering down?

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

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

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

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

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

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

Image by Terri Sharp from Pixabay

Federal environmental planning: the broken leg of the stool

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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.

Environmental policy came from the side of the angels

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’

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

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]