Environmental Standards: are they really the treasure at the end of the rainbow?

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What would happen if we actually got decent environmental standards?

By Peter Burnett

After several months of turbulent debate over what will become of Australia’s Environmental Protection and Biodiversity Conservation Act, we are approaching the end zone of Professor Graeme Samuel’s review. ‘Environmental Standards’ look set to become part of environmental regulation in Australia and many people, including me, are wondering whether they will be good enough and, even if they are, how will it change things.

Professor Samuel’s Independent Review of the EPBC Act is due in a month. The Government has jumped the reform gun by introducing ‘streamlining’ amendments to the Act designed to enable ‘single touch’ environmental decisions by states, replacing the dual system of federal and state decisions that we have now.

Although pitched by federal environment minister Sussan Ley as ‘the first tranche of EPBC Act reforms linked to the independent statutory review of the Act’, [link: ] this Bill is no more than a rebadged version of the Abbott Government’s 2014 ‘one stop shop’ Bill that failed to pass the Senate. It doesn’t include any of the reforms identified by Professor Samuel in his Interim Report, such as the application of binding National Environmental Standards to accredited State environmental decisions.

Once again the Government finds its path blocked in the Senate, although this time the three cross-benchers concerned are not necessarily opposed to the Bill, but only to the idea of passing ‘reforms’ without seeing the report to which the Government links them, or without a Senate Inquiry into the Bill, or perhaps both.

How will things play out?

My crystal ball isn’t good enough to see how all this might play out. Perhaps we’ll see a Senate Inquiry, not just into the streamlining Bill but into the full Samuel Report. This would put everything on the table, from threatened species protection to Indigenous heritage failures (think Juukan Gorge).

On this scenario, instead of being able to deliver the ‘single touch’ model by Christmas as part of its COVID-19 recovery plan, the Government might find itself wading through the environmental policy swamp in the Senate for months, where it does not control the numbers.

Another scenario is that, in an effort to avoid wading into the swamp, that the government cuts a deal with Labor on the policy. What if we ended up with bipartisan support for accreditation based on standards?

Are standards the answer?

On the surface, such a deal could be attractive politically and environmentally. We’d get the efficiency of ‘single touch’ decisions, with checks and balances in the form of standards: quick decisions, but not at the expense of the environment.

Unfortunately it’s not that simple.

Professor Samuel recommended a phased approach, starting with interim standards, but refined over time with increasing ‘granularity’. This might mean that early standards are too general to be enforceable and so make little difference on the ground. Moreover, once interim standards were in place, States and developers alike would probably resist the progressive tightening that would come if the Commonwealth embarked on a program of rolling out progressively more-detailed standards.

Standards would be a new element in the environmental decision-making equation. As such, they represent something of a wild card and would probably attract legal challenges as environment groups tried to establish that standards should make a real difference to decisions.

So we could get standards that don’t really work, or standards that generate controversy. Not all standards are good standards.

But what if we actually got a decent set of standards?

But what if the standards were ideal, clearly and accurately identifying what was needed to maintain or enhance the condition of important environmental values such as threatened species?

We’d still face significant problems.

First, we lack the ability to measure what’s happening to the environment on a routine and ongoing basis. We’d need to complement the standards with quality and up-to-date information. Professor Samuels said a ‘quantum shift is required in the quality of information, accessible data and information available to decision-makers’. This would be expensive and take years to implement.

Then there’s the politics. Given the parlous state of the environment, well-defined standards, applied with precision, would often throw up the answer ‘You can’t approve that. It would result in the degradation or loss of [insert environmental value here, eg significant area of critical habitat, river-flow needed to maintain a Ramsar wetland, etc]’.

I think many politicians know this, if not consciously, at least instinctively, and would not wish to go down this track. We’d be tapping into what makes the environment such a wicked problem.

‘Doing the right thing’ could come at significant opportunity cost to the economy, not to mention direct impacts on various vested interests, while the standards would place any failure to do so in stark relief. There’d be nowhere to hide, no fudges available.

The recent threatened walk-out from Government by the National Party in NSW, over new and more precise guidelines concerning koala habitat provides a foretaste of this.

Standards alone are not enough

To me, the missing link is a means to bring society along with new standards, to create a broad acceptance that maintaining a quality of life for our children, even our future selves, will require difficult decisions.

The Gillard Government sought to do this in its ‘Clean Energy Future’ climate package in 2011. One element of the package was a Climate Commission, charged with engaging with the ordinary person, through ‘town hall’ meetings and the like, to explain the need for climate action. Unfortunately, the Commission bit the dust along with the carbon price, in 2014.

I know that anything associated with the repealed carbon price is political anathema, but this is where we need to go. We need broad community acceptance that we can’t live beyond our environmental means, and to explain what that means.

After 75 years of ‘jobs and growth’ messages from Western governments, going back to US President Truman’s urging in his State of the Union address in 1945 to ‘move forward … to the full utilisation and development of our physical and human resources’, that’s a tall order indeed.

Image by Albrecht Fietz from Pixabay

Trust us? Well let’s look at your record

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Can governments be trusted to set and enforce effective environmental standards?

By Peter Burnett

Can Governments be trusted to set and enforce effective environmental standards? By ‘effective’, I mean standards that protect the environment to the point of halting long-term environmental decline?

I’m asking this question because in the current debate about reform of Australia’s national environmental law, the EPBC Act, environment minister Sussan Ley is saying ‘trust me’ on two major issues, both arising from Professor Graeme Samuel’s Independent Review of the EPBC Act.

First, she is rushing through a small but controversial set of legislative changes while promising more extensive reforms to come.

These initial changes are about reducing duplication and ‘green tape’ by introducing ‘single touch’ environmental decisions. They are posing as the first tranche of reform but are in fact a recycled version of the Abbott government’s ‘one stop shop’.

Second, the Government has rejected the recommendation of the Independent Review that there should be an ‘independent cop on the beat’ to regulate States accredited to make ‘single touch’ decisions. Without such a regulator, it would be up to Minister Ley to call to account any State making decisions that didn’t comply with Samuel’s proposed National Environmental Standards.

Unfortunately, I don’t think the government can be trusted on this. But it’s not about anyone’s personal qualities. It’s about the politics. I base my argument on two examples, Regional Forest Agreements (RFAs) and the Environment Restoration Fund (ERF).

Trust us on the forests

RFA’s were developed in the 1990s as the solution to the ‘forest wars’, especially over the harvesting of old growth forests to produce wood chips. The idea was that, following an environmental assessment, Federal and State governments would produce a 20-year plan, in the form of an RFA, for each forestry region.

There are 10 RFAs across southern Australia. Each one identifies areas for harvest and sets out how the State will conserve ecological values such as threatened species. In return, the Commonwealth grants export licences for forest products covered by the RFA and exempts forestry in RFA areas from the need for development approvals under the EPBC Act.

In 2006 Bob Brown challenged a Tasmanian RFA on the ground that Forestry Tasmania were failing to deliver the protection required by the RFA for several threatened species. He won the initial challenge but lost on appeal.

The interesting point however is not who won or lost but what happened between the initial case and the appeal.

Obviously the Federal and Tasmanian governments were concerned that the appeal court would uphold Brown’s win. So they changed the wording of the RFA. Instead of requiring that the species be protected (by applying agreed management prescriptions), the amended RFA specified that the establishment of the CAR (Comprehensive Adequate and Representative) Reserve System, together with the application of the agreed prescriptions, protected the species.

In other words, instead of requiring an actual environmental outcome, the RFA deemed the agreed inputs to be delivering the outcome.* The two governments were concerned that the law might require, not just that they take action, but that they actually achieve a result!

Trust us on endangered possums

Similar sentiments can be seen at play in the Leadbeater’s Possum Cases of 2018 and 2020, in which environment group Friends of Leadbeater’s Possum took VicForests to court, twice, arguing that the corporation was failing to comply with the RFA and that as a result it had lost its RFA exemption under the EPBC Act. (The cases also related to the Greater Glider.)

The cases are complex, but in brief the Court held that to maintain its EPBC Act exemption, VicForests had to conduct its forestry operations ‘in accordance with’ the RFA.

The first challenge failed because it was based on the failure of the Federal and Victorian governments to conduct, in a timely way, the five year reviews required under RFAs. The court said these reviews, though performing a ‘critical’ role in preserving the currency, appropriateness and effectiveness of the RFA, were not integral to forestry operations.

The second challenge was based on VicForests’ failure to comply to apply the precautionary principle, as required by the Victorian Code of Practice for Timber Production, in planning its logging activities. This time the challenge succeed, because the planning process was integral to forestry operations.

Again, the interesting point here is not so much the outcomes of the cases but the attitude of governments.

First, the Federal and Victorian governments were significantly late in conducting regular reviews of the RFAs. In fact, they missed the first one altogether. And, in playing ‘catch up’, they didn’t review the five Victorian agreements individually but rolled the reviews into one.

This creates a strong impression of initial neglect on both sides, followed by a scramble to get into compliance.

Second, rather than comply with the precautionary principle by undertaking serious on-ground monitoring work, VicForests relied on ‘desktop and other theoretical methods’ which the Court found to be flawed. In fact, the Court said that VicForests had prepared ‘defensive documents … suggesting VicForests felt obliged to have a policy addressing further protection for the Greater Glider, but was reluctant to implement it’.

Again, one is left with the strong impression that protecting the environment was far from the minds of those concerned.

Trust us on restoration

As I’ve written about the Environment Restoration Fund before, I’ll just recap briefly.

This $100m fund was announced in the 2019 Federal Budget, just before the election. The fund was presented as representing ‘practical environmental action’.

The government committed nearly 80% of the funds in the form of election commitments, ie. immediately, without calling for applications and without access to the usual expert advice about how to prioritise the spending for best environmental effect.

In other words, despite serious and ongoing environmental decline, the government’s ‘practical environmental action’ was, in reality, a pork barrel. When challenged about their approach in the Senate, the government’s main defence was that the Opposition did this sort of thing too.

So, who do ya trust?

I could go on, but in my view these two significant examples alone suggest strongly that governments, irrespective of political persuasion, or whether Federal or State, cannot be trusted to implement good environmental policy. Without ginger groups such as Friends of Leadbeater’s Possum to keep them honest, or Professor Samuel’s ‘independent cop on the beat’, they have a strong tendency to ‘talk the talk’ but not ‘walk the walk’.

The politics are just too hard.

With the RFA’s, I’m betting politicians still have an indelible memory of the timber trucks encircling Parliament House, like ‘Indians’ riding around the circled wagons in an old Western, even though this occurred more than 25 years ago. Once bitten, not just twice shy but pathologically averse to stirring up the timber industry.

With the ERF, the Morrison Government was widely expected to lose the 2019 election and perhaps this was an initiative born of desperation. The fact that it worked will only suffice as justification to the most rusted-on Coalition supporters. For the rest of us, it’s only helped to reinforce the widely held view that governments can’t be trusted.

So, while it’s possible that we’ll get a reasonable set of National Environmental Standards out of the current national environmental law review, because talk and even laws are cheap, it’s much less likely that governments would implement them effectively, if left to their own devices.

Bring on Professor Samuel’s independent cop on the beat!

Image by Pixabay

*On appeal, the Full Federal Court said that the change was unnecessary and that, as a matter of interpretation, the original words only required the application of the agreed prescriptions and not the achievement of protection, but this is beside the point.

The bumblebee conspiracy

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Could the quest for ‘single touch’ environmental approvals spread a dangerous feral species?

By Peter Burnett

The Government is intent on pushing through its partial agenda on environmental reform — it’s so called ‘single touch’ approvals approach — even at the expense of pre-empting the current independent review of the EPBC Act. To do that it’ll need to buy a few votes from the Senate cross benches.

In anticipation of a Parliamentary debate I’ve been digging through some recent legislative history and I’ve started to hear a loud buzzing noise. There’s a bumblebee in this equation and if we’re not careful it may soon be pollinating a weed near you.

Before I reveal the bumblebee, some background.

The buzz of ‘green tape’

As most of our readers will know (because we’ve discussed it from many angles), Professor Graeme Samuel is conducting a 10-year review of the EPBC (Environmental Protection and Biodiversity Conservation) Act and has released an Interim Report. He has recommended a new approach to environmental protection based on National Environmental Standards (which would be interim in the first instance).

One of the drivers for EPBC reform is duplication and overlap between Commonwealth and State environmental impact assessment (EIA) systems. This problem is real enough, although the Government is one-eyed about it, framing the issue pejoratively as ‘green tape’ and talking little of anything else in the environmental reform space beyond its response to this issue, ‘single touch approval’.

‘Single touch approval’ is the Government’s new name for the failed ‘one stop shop’ initiative.

The Government is so focused on this issue that it will be introducing hastily-drafted legislation, probably this week, to hand over most Commonwealth EIA decision-making authority to the States.

It says that this accreditation will be based on Professor Samuel’s Interim Standards, even though they do not exist yet.

In the meantime, Professor Samuel continues with his review. He has formed a Consultative Group to help develop an interim set of Standards. The Group consists mostly of major stakeholders such as the Business Council of Australia and Australian Conservation Foundation, but it also includes a couple of individuals (including me).

Enter the bumblebee

Apart from EIA, the EPBC Act also plays a significant part in dealing with landscape-scale threats, including weeds and pests.

One of the Threat Abatement Plans made under the Act deals with gamba grass and four other invasive grasses in Northern Australia. Ironically, many of these grasses were deliberately introduced as improved pasture plants that then escaped to become major environmental threats.

The EPBC Act also makes it an offence to possess a exotic plants or animals that are not on the Live Import List. This offence applies even to feral species that have become established here.

One such species is the large earth bumblebee (Bombus terrestris), which apparently was smuggled into Tasmania from New Zealand in the 1990s and has since become established there. (At this time, the bumblebee is not found on the mainland). The likely reason for smuggling is that the bumblebee is a very efficient crop pollinator and could be a boon to horticulture, including tomato-growing.

Several applications have been made by the horticulture industry to include the bumblebee on the Live Import List and so allow its use as a pollinator, but each application has been rejected because of the biosecurity risks, which include out-competing native bees and, through their efficiency as pollinators, exacerbating the impacts of weeds.

Could a bumblebee buy a vote?

Why am I linking weeds and feral animals with environmental review and reform? Well, as I write, the Commonwealth’s urgent Bill has yet to see the light of day. However, rumour has it that it will draw heavily on the Abbott Government’s ‘one-stop-shop’ EPBC Amendment Bill, which was introduced in 2014 and was allowed to lapse in 2016 after it became clear that it would not pass the Senate.

I went back over that 2014 Bill. Initially, I was puzzled by blandly described amendments in the proposed Bill that would allow people to apply for permission to possess live specimens of feral animals. These seemed to have no connection to the one-stop-shop reforms.

Further research revealed that this amendment was proposed by the Government to secure the support of Independent Senator Jacqui Lambie. The amendments would allow a two year ‘trial’ in Tasmania of the pollination of greenhouse-grown tomatoes by bumblebees.

Given previous assessments that this would pose unacceptable risks to biosecurity, I was shocked that Senator Lambie would seek, or worse, that the Government would agree to, such an amendment. It was only by luck that the ‘trial’ did not proceed because of opposition to the Bill on other grounds.

But some bad ideas just will not die. I was shocked again to find that even though the Bill had lapsed, the bumblebee proposal was later considered by a Senate Committee, which supported the idea unanimously! Even Senator Whish-Wilson of The Greens supported it!

The shock of the bumblebee

I also discovered that I was not the only one shocked. The Invasive Species Council, a non-profit advocacy group, published an article in the Feral Herald (best newsletter name ever!) expressing their shock that the warnings from the CSIRO and the Environment Department, together with opposition from the Honeybee Industry Council, the South Australian Government (plus bans in NSW and Victoria) and the Council itself, were not enough to deter the Committee from supporting the plan.

I’m raising all this because, once again, the Government are likely to need Senator Lambie’s support to secure passage of their hasty reforms. Given this, and the Government’s subsequent endorsement in 2019 of the Committee recommendations, I expect they will include it in their ‘single touch approval’ Bill.

As the Invasive Species Council has pointed out, legalising the use of feral bumblebees in Tasmania will create a perverse incentive for someone to smuggle them to the mainland.

A cost-benefit analysis taking this into account would find the small benefits in Tasmania to be vastly outweighed by the likely costs nationwide.

The contested arena of environmental reform is already littered with complexity, ideological conflict and vested interests. In case there was any doubt, now we can add irrationality to the list. And irresponsibility.

Image by Nel Botha from Pixabay

Effective environmental reform: What are the prospects?

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Change is in the wind. There is cause for hope but also for caution

By Peter Burnett

The Review of the nation’s premier environmental law, the Environment Protection and Biodiversity Conservation Act (EPBC Act) is showing signs that it could reshape the environmental policy agenda in Australia.

The Review is being led by Professor Graeme Samuel. Despite having no background in environment, Professor Samuel has shown in his interim report (released last month) that he is well-across the problems of the environment and the failings of the EPBC Act. And he has taken a clear stance on solutions through his proposal for National Environmental Standards.

On the other hand, the Government has stuck to its very narrow focus on efficiency through its ‘green tape’ narrative. It is also in an unseemly rush (as I discussed last time), proposing to push legislation through the Parliament this month to accredit states to give federal environmental approvals on the basis of interim Standards, without even waiting for Professor Samuel’s final report, due on 31 October.

With a potential clash looming between policy-driven reform and politically-driven change, what are the prospects for effective reform, by which I mean reform that has reasonable prospects of halting Australia’s well documented environmental decline?

The positives

A cynic would say we’ve been pursuing environmental protection for fifty years now, with limited impact, so why would things change now? My response is that there are some significant new factors at play and that, as an optimist, I’m hoping some of them might carry the day.

First, there are some significant shifts taking place in business in terms of climate change. A number of major companies have adopted policies of ’net zero by 2050’, as has the Business Council of Australia, which represents Australia’s largest companies.

My own explanation for this change is that climate issues are now emerging over the business horizon. Factors such as shareholder concern, directions from business regulators to address climate risk and rising insurance premiums, not to mention the risk of being sued, all mean that climate change is, for them, no longer ‘out there’.

Second, Australia’s Black Summer of 2019-2020 confronted the nation not just with the impacts of climate change on humans, but with the impacts on nature as well. Initial reports were that the fires killed over a billion vertebrate animals, but a new report concludes that the figure is around three billion if the casualty list is expanded to include injured and displaced animals.

Third, Professor Samuel himself, appointed by a government of the political Right and coming from a background in law and business, is, through his report and public statements, helping to legitimise the environment as a concern of all rather than just those on the Left.

Significantly, Professor Samuel’s framing of environment policy in terms of desired outcomes and standards, across the board, could prove instrumental in shifting debate away from individual controversies such as the Adani coal project, towards policy-relevant questions like ‘what are we trying to achieve?’ and ‘what does a sustainable environment look like?’

If general environmental decline is socially unacceptable (which I think it is), then it is hard to argue against a goal of halting the decline and setting legally-binding standards to give it effect.

It’s also harder to get traction at a high level for a general ‘jobs-and-growth’ argument, than it is to make a project level claim that ‘this mine will create thousands of jobs in this region’.

And if a leading business person like Professor Samuel is driving a process to nail down exactly what halting that decline will require, political arguments about ‘green agendas’ and the like will not apply.

Negatives

Of course, it would be one thing to persuade a Professor writing a report and something else entirely to carry the day politically.

The influence of these positive factors may not extend beyond Samuel’s report. The Government may be unmoved and has already ruled out one critical element of the Samuel model, an independent compliance regulator.

Indeed, the Government may have its first (and possibly only) tranche of reforms enacted before he submits his final report.

In that regard, even if Labor and the Greens oppose the Government’s plan, it needs the support of only three cross-benchers to get its Bill through the Senate. The prospects of securing three votes from among two One Nation senators, two Centre Alliance and Jacqui Lambie, must be reasonably good.

At this stage then, the likely scenario is that Professor Samuel’s final report in October will make strong recommendations for National Environmental Standards and supporting measures, but the Government will pre-empt that by securing passage of EPBC Act amendments that will see States accredited to make the Prime Minister’s ‘single touch’ development decisions on the basis of ‘interim’ standards by Christmas.

And on balance?

What prospects then for major reform? If the Government wins over the Senate, the reform horse will have bolted. It will be very hard to implement Professor Samuel’s strategy of progressive development and tightening of interim standards while no longer holding the carrot of State accreditation.

Despite this, I remain hopeful. The Senate Cross-bench may be persuaded to insist on considering the final Samuel Report before legislating. And that final report may make a convincing case for comprehensive reform.

It is even possible that the Prime Minister meant what he said in May in his National Press Club address on post-pandemic recovery:

As we reset for growth, [we] will be guided by principles that we as Liberals and Nationals have always believed in, to secure Australia’s future and put people first in our economy...

Secondly, is the principle of caring for country, a principle that indigenous Australians have practiced for tens of thousands of years.

It means responsible management and stewardship of what has been left to us, to sustainably manage that inheritance for current and future generations.

We must not borrow from generations in the future, from what we cannot return.

This is as true for our environmental, cultural and natural resources as it is for our economic and financial ones.

Governments therefore must live within their means, so we don’t impose impossible debt burdens on future generations that violates that important caring for country principle.

Image: Image by christels from Pixabay

The choir – lobbyists and powerbrokers

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Who is singing and who is listening in the biggest environmental game in town?

By David Salt

The biggest environmental policy game in town at the moment is the review of the EPBC Act. That’s because the outcome of this review will have a major bearing on how governments deal with the perennial tension between economic development and environmental protection. It could influence how our nation looks after our environmental values for years, maybe decades, to come. It is a big deal.

Last week the government belatedly released the draft report of the review (led by Professor Graeme Samuel). This draft pointed out the EPBC Act was failing on multiple fronts. It was failing to protect the environment and it was too slow in processing development approvals. It proposed a range of reforms (and these have been discussed at length by many).

I’m always fascinated by what lobby groups say when reviews such as this are released. Their public statements come out so fast on the heels of the release I really wonder if they have even read the document (or even its executive summary). Reading their statements it quickly becomes apparent that most of their words are simple rehashes of their lobby platforms – what they want the public to think about them, and what they want the government to do in respect of the stakeholders they represent.

Let’s look at a few of those statements

Political statements

First up, there’s the draft review itself. It’s released by the Department of Agriculture and Environment (DAWE), the Department that oversees the EPBC Act (we’re already getting a signal even in the Department’s title on the priority given to the environment). The media statement provides a fairly good summary of the draft review with a link to the review itself.

Central to Samuel’s review is the belief that a set of National Environment Standards need to be developed, duplication between state and federal levels needs to be reduced and that an enforcement regulator needs to be established. On this final point, he said: “Community trust in the EPBC Act and its administration is low. To build confidence, the Interim Report proposes that an independent cop on the beat is required to deliver rigorous, transparent compliance and enforcement.”

Following simultaneously on this release comes the statement from the Government which thanks Professor Samuel for delivering the report, agrees we must end duplication and instantly squashes any idea that an ‘independent cop’ will be brought in. The government will not “support additional layers of bureaucracy such as the establishment of an independent regulator.” (It should be noted that when Labor was in government when the EPBC Act was last reviewed in 2009 that it similarly rejected the proposal for a ‘greenhouse trigger’ because it added layers of bureaucracy to the Act.)

The opposition party then follows with a statement saying it’s all the government’s fault: “In considering the Samuel Review Interim Report, it’s important to understand that Australia’s biggest problem in environmental management has been blue tape: delays and poor decision-making caused by Liberal and National cuts and mismanagement.”

Predictably, the Greens are also blaming the government for everything that’s wrong, and bitterly disappointed in their flat rejection of a regulator: “Environmental standards will be worthless if there is no one there to enforce them. This report shows the government can’t be trusted.”

Business statements

The Business Council of Australia was complimentary in its appraisal of the review: “What has been achieved in this review is a way forward that increases accountability, increases the transparency of decision making and retains the central goal of protecting the environment.” Pity the government’s already killed the prime mechanism for enhanced accountability.

The Minerals Council of Australia sees it as a greenlight for development: “Faster approvals, greater national cooperation and clearer guidelines on environmental management will boost jobs and investment and improve biodiversity outcomes.” They’re delighted by the government’s commitment to develop a ‘single touch’ approach to assessment: “The interim report highlights the need to address unnecessary regulatory complexity and duplication – including overlapping state and federal processes which deter investment.”

The Association of Mining and Exploration Companies and the Australian Petroleum Production and Exploration Association pretty much parrot the Minerals Council’s thoughts. Less duplication and faster approvals are essential; though they don’t have much to say about improved environmental outcomes beyond suggesting they think they are important too.

But it’s not just the miners who see gold in the report, the farmers see carrots. The National Farmers Federation said: ““For too long the regulatory stick has been preferred, despite biodiversity outcomes actually declining. The solution is in a market-based approach rather than a stronger stick. It is time for some carrots.” I think the NFF are also not a fan of the ‘independent cop’ idea.

The foresters are also keen to support the report’s call for greater clarity, in their case clarity between the EPBC Act the Regional Forestry Agreement process. The Australian Forestry Products Association said: “This is our chance to ensure the right protection for our environment while also unlocking job-creating projects to strengthen our economy and improve the livelihoods of every-day Australians.”

Environmental sector statements

So business interests everywhere are in furious concord, the review is good if it reduces transaction costs around environmental protection. What are environmental NGOs saying? They are somewhat worried.

The Australian Conservation Foundation said: “the Federal Government would be lining up Australian wildlife for extinction if it rushes to devolve environmental approval powers to states”.

The Wilderness Society is also concerned by an apparent devolution to the states. It said: “Professor Samuel’s report outlines that environment laws are rarely policed, that endangered species recovery plans are rarely implemented, that Australia’s most important environmental values are in decline and yet the central Government response is to seek to hand environmental approval powers to the states with no concrete proposals to address any of the main environmental challenges facing Australia.”

The Invasive Species Council’s response was that it welcomed what it said was a “less reactive, more comprehensive response to Australia’s growing biodiversity crisis”. It supported the call for ‘strategic national plans’ and ‘regional plans’ but was “greatly disappointed that the Environment Minister today ruled out Samuel’s proposal for an ‘independent monitoring, compliance, enforcement and assurance regulator’.”

The choir

These were just the statements I saw in response to the release of the draft review of the EPBC Act. I’m sure there were many more but they give you a good flavour of the push and shove following such an announcement.

Most people never see these statements beyond, maybe, a quote here and there used in news stories, normally to add a bit of colour to the otherwise drier reportage. However, these statements are always coming out from the different lobby groups whenever the government makes a statement on anything, the story being reported here is just one from the environment sector.

These statements telegraph to the government what different stakeholder groups are expecting from our political leaders. You’ll often see lobby groups repeating phrases used by the government (like ‘single touch’ approval processes) giving them credence and solidity. Sometimes it’s the other way around; the government will pick up on phrases coined by a lobby group.

And, of course, this is just the visible signs of the lobbying process. There’s a whole industry based on cultivating influence of the government and most of it happens behind closed doors and is unseen by the public.

Having worked for many years in science communication connected with biodiversity conservation I’ve seen this game of duelling public statements many times. It amazes me the seeming co-ordination with which it happens, with each side singing to their own constituency and maybe pulling the strings behind some of the important decisions.

In this current situation relating to the EPBC Act, the industry groups seem to be at one with the government’s message of shorter approval times, less regulation and less bureaucracy. This is only an interim report but it provides a clear idea of what the final report will contain, and we also have a good idea which bits the government will act on (and which bits it will reject).

Missed the boat

The review is currently calling for public feedback on the interim report. But you’ll have to be quick. Having been given the report by Graeme Samuels last month but only releasing it last week, the government will only accept feedback till 17 August. The final report is due in October.

Though, even if you respond through the official channels, it could be you’ve already missed the boat. It seems the Government is not waiting for the final report and have promised legislation in late August. The Prime Minister’s statement from the most recent National Cabinet yesterday said the Premiers were all on board and keen to sign up to ‘single touch’ asap (why wouldn’t they)?

It is quite clear which choir the Government is listening to.

Image by stanbalik from Pixabay

Environment Minister Sussan Ley is in a tearing hurry to embrace nature law reform – and that’s a worry

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The Morrison government has just released a long-awaited interim review into Australia’s federal environment law. The ten-year review found Australia’s natural environment is declining and under increasing threat. The current environmental trajectory is “unsustainable” and the law “ineffective”.

The report, by businessman and academic Professor Graeme Samuel, called for fundamental reform of the law, known as the Environmental Protection and Biodiversity Conservation (EPBC) Act. The Act, Professor Samuel says:
“[…] does not enable the Commonwealth to play its role in protecting and conserving environmental matters that are important for the nation. It is not fit to address current or future environmental challenges.”

He confirmed the health of Australia’s environment is in dire straits, and proposes many good ways to address this.

Worryingly though, Environment Minister Sussan Ley immediately seized on proposed reforms that seem to suit her government’s agenda – notably, streamlining the environmental approvals process – and will start working towards them. This is before the review has been finalised, and before public comment on the draft has been received.

This rushed response is very concerning. I was a federal environment official for 13 years, and from 2007 to 2012 was responsible for administering and reforming the Act. I know the huge undertaking involved in reform of the scale Professor Samuel suggests. The stakes are far too high to risk squandering this once-a-decade reform opportunity for quick wins.

‘Fundamental reform’ needed: Samuel

The EPBC Act is designed to protect and conserve Australia’s most important environmental and heritage assets – most commonly, threatened plant and animal species.

Professor Samuel’s diagnosis is on the money: the current trajectory of environmental decline is clearly unsustainable. And reform is long overdue – although unlike Graeme Samuel, I would put the blame less on the Act itself and more on government failings, such as a badly under-resourced federal environment department.

Samuel also hits the sweet spot in terms of a solution, at least in principle. National environmental standards, legally binding on the states and others, would switch the focus from the development approvals process to environmental outcomes. In essence, the Commonwealth would regulate the states for environmental results, rather than proponents for (mostly) process.

Samuel’s recommendation for a quantum shift to a “single source of truth” for environmental data and information is also welcome. Effective administration of the Act requires good information, but this has proven hard to deliver. For example the much-needed National Plan for Environmental Information, established in 2010, was never properly resourced and later abolished.

Importantly, Samuel also called for a new standard for “best practice Indigenous engagement”, ensuring traditional knowledge and views are fully valued in decision-making. The lack of protection of Indigenous cultural assets has been under scrutiny of late following Rio Tinto’s destruction of the ancient Indigenous site Juukan caves. Reform in this area is long overdue.

And notably, Samuel says environmental restoration is required to enable future development to be sustainable. Habitat, he says “needs to grow to be able to support both development and a healthy environment”.

Streamlined approvals

Samuel pointed to duplication between the EPBC Act and state and territory regulations. He said efforts have been made to streamline these laws but they “have not gone far enough”. The result, he says, is “slow and cumbersome regulation” resulting in significant costs for business, with little environmental benefit.

This finding would have been music to the ears of the Morrison government. From the outset, the government framed Samuel’s review around a narrative of cutting the “green tape” that it believed unnecessarily held up development.

In June the government announced fast-tracked approvals for 15 major infrastructure projects in response to the COVID-19 economic slowdown. And on Monday, Ley indicated the government will prioritise the new national environmental standards, including further streamlining approval processes.

Here’s where the danger lies. The government wants to introduce legislation in August. Minister Ley said “prototype” environmental standards proposed by Professor Samuel will be introduced at the same time. This is well before Samuel’s final report, due in October.

I believe this timeframe is unwise, and wildly ambitious.

Even though Samuel proposes a two-stage process, with interim standards as the first step, these initial standards risk being too vague. And once they’re in place, states may resist moving to a stricter second stage.

To take one example, the prototype standards in Samuel’s report say approved development projects must not have unacceptable impacts on matters of national environmental significance. He says more work is needed on the definition of “unacceptable”, adding this requires “granular and specific guidance”.

I believe this requires standards being tailored to different ecosystems across our wide and diverse landscapes, and being specific enough to usefully guide the assessment of any given project. This is an enormous task which cannot be rushed. And if Samuel’s prototype were adopted on an interim basis, states would be free, within some limits, to decide what is “unacceptable”.

It’s also worth noting that the national standards model will need significant financial resources. Samuel’s model would see the Commonwealth doing fewer individual project approvals and less on-ground compliance. However, it would enter a new and complex world of developing environmental standards.

More haste, less speed

Samuel’s interim report will go out for public comment before the final report is delivered in October. Ley concedes further consultation is needed on some issues. But in other areas, the government is not willing to wait.

After years of substantive policy inaction it seems the government wants to set a new land-speed record for environmental reform.

The government’s fixation with cutting “green tape” should not unduly colour its reform direction. By rushing efforts to streamline approvals, the government risks creating a jumbled process with, once again, poor environmental outcomes.

Image by MrsKirk72 from Pixabay

This story originally appeared in The Conversation.

It’s time: for a national conversation on the environment

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And that conversation should include national goals and environmental measurement

By Peter Burnett

Soon after she became federal environment minister last year, Sussan Ley spoke of a collaborative approach to the environment.

Foreshadowing what is now Professor Graeme Samuel’s Independent Review of the Environment Protection and Biodiversity Conservation (EPBC) Act, Ley said the review was ‘the right time to have a conversation about the best ways we can ensure strong environmental and biodiversity protection measures that encourage people to work together in supporting the environment’.

Professor Samuel has handed his draft report to Ley, who is expected to release it soon.

So it’s about time to start that conversation.

Of course, it would have been better to have the conversation a long time ago, when the environment wasn’t in such dire straits, but as the Chinese proverb puts it, ‘The best time to plant a tree was 20 years ago. The second best time is now.’

I’d like to suggest a couple of conversation-starters.

An agreed goal: what kind of environment do we want?

The first is to make sure the conversation leads to an agreed national statement of the kind of environment Australians want.

This is not an easy thing to do. For example, while most might support a goal of a ‘healthy’ environment, translating that vision into policy raises difficult questions like ‘how healthy?’ and ‘at what cost?’

Yet we need to commit to a clear goal. Otherwise we are left with our ongoing focus on the short term, something which has only delivered what Australia’s doyen of environmental policy, Professor Steve Dovers, has described as ‘policy ad hocery and amnesia’.

In colloquial terms this is a constant chopping and changing and it severely undermines our efforts to address environmental problems.

Earlier efforts at defining that national goal

So far, the closest we’ve come to adopting a clear national goal was through the ‘ESD [Ecologically Sustainable Development] process’, an intense dialogue between government, business, unions and environment groups in the early 1990s.

The ESD process produced a massive 12 volume consensus report containing hundreds of substantial recommendations. However, politics, especially Paul Keating’s ousting of Bob Hawke as Prime Minister, got in the way.

In the end, Australia’s governments gave us a vaguely-written and unfunded National Strategy on ESD.

As a conversation, the ESD process had at least two major flaws.

First, hardly anyone really knew what ESD meant. Unlike the ‘sustainability’ of political discourse, which means all things to all people, ESD is a real but complex and often misunderstood concept.

Second, the ESD process was a conversation between elites, which largely passed the rest of us by.

So we signed up to ESD through the National Strategy, without really ‘buying’ it. One consequence was that ESD was then written into many laws and policies, though usually in ways that allow lip service, which is what ESD usually gets.

But every now and again someone takes it seriously, as the Federal Court did recently in finding that VicForests had failed to apply the precautionary principle (one element of ESD) and were thus logging unlawfully.

This kind of outcome, where we set, but then ignore, environmental speed limits, while occasionally dabbing the brakes, is hardly good policy.

If we are going to have a national conversation, it needs to be widely publicised, well-informed, run at ‘town hall’ level and continued for as long as it takes to get a real sense of the aspirations of the Australian people for the future.

We especially need to grapple with the tension underlying ESD, which is how to reconcile our desires for ongoing economic growth with the capacity of the environment to support our ever-growing consumption of environmental goods and services.

If we squib this major challenge, we will likely continue as we have, nibbling away at various parts of the environment with a limited understanding of the cumulative impact of our daily decisions, large and small.

This nibbling away is what a famous American economist, Alfred Kahn, once described as ‘the tyranny of small decisions.’ And as the leading ecologist William Odum recognized, it is particularly pertinent to the environment.

You can’t manage what you can’t measure

My second suggestion concerns the dry but vital topic of environmental information.

One of the shibboleths of modern management is ‘you can’t manage what you can’t measure’. Managing the environment is doubly difficult because, even if we had unlimited data, we still wouldn’t fully understand nature in its complexity.

However a comprehensive information system, including environmental accounts to help arrange information for decision-making, would be a major advance.

Despite governments actively seeking to manage the environment for nearly 50 years, we still don’t have such a system. There have been many programs and promises over the years, but governments have tended to scale them back or drop them as they change focus.

Maybe that’s because environmental information isn’t politically ‘sexy’; most people neither know nor care.

A good example is the Rudd Government’s 2010 National Plan for Environmental Information (NPEI). This plan grew out of a recommendation from Prime Minister Rudd’s 2020 Summit (held in 2007) that Australia develop national environmental accounts.

But the NPEI was underfunded from the outset and then cut after a change of government.

We still have no national baseline biodiversity monitoring, first promised in 1996.

And although the Australian Bureau of Statistics (ABS) has been experimenting with national environmental-economic accounts for decades, these accounts remain experimental, partial or intermittent. They are certainly not developed to the point where they could support specific environmental management decisions.

If we were having a national conversation, I would argue for a national institution to gather and hold environmental information.

We do this for mineral resources, through Geoscience Australia; for health and welfare, through the Australian Institute of Health and Welfare; and for water resources, through the Bureau of Meteorology. An institution for environmental information is a logical next step.

And I would expand dramatically the environmental accounts prepared by the ABS, requiring them to be used in real environmental decisions.

The coming national conversation?

So we badly need a national conversation on protecting the environment, but will we get one?

Sussan Ley is hardly paving the way, having spoken of the Samuel Review only in the context of ‘cutting green tape’, a slogan.

Perhaps Ley will surprise us, by making some speeches about biodiversity or convening public forums to discuss the review.

Whether the conversation is led by government or not, we need to rise above slogans for a broad and respectful conversation about our environmental values.

Image by Gerd Altmann from Pixabay

A bluffer’s guide to Australia’s premier environmental law

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and why it’s going so horribly wrong

By David Salt

Any casual reader of the news (and of this blog) probably would have noticed that Australia’s environmental law is in the spotlight at the moment. It’s being reviewed, analysed and attacked from multiple directions.

Anyone with half an interest in nature or biodiversity conservation probably believes it’s important that Australia’s environmental laws are strong and effective. However, most people have very little idea what those laws are, how they work and whether they are adequate.

Well, here’s a quick summary of what Australia’s premier environmental law is and what all the fuss is about. Think of it as your ‘bluffer’s guide’ to Australia’s environmental law.

Why would you bother with a bluffer’s guide? Because the legislation itself is impenetrable (see item 1).

1. What is Australia’s premier environmental law?

Each state and territory has its own environmental legislation but the nation’s premier law is the Environmental Protection and Biodiversity Conservation Act (EPBC Act) created and implemented by the Federal Government. It was enacted in 1999, is over 1000 pages long, full of arcane legal language and has been described by some as ‘impenetrable’.

Fortunately, Peter Burnett (the co-producer of Sustainability Bites) is a lawyer and has taken the time to break the Act down into its constituent part and explain them in plain English (see ‘What’s in the EPBC Box’). It has 16 major components which come together to serve three broad functions:

Identify: The Act identifies which environmental values (threatened species and special places) should be protected. These are often referred to as ‘matters of national environmental significance’ and include World Heritage places (like the Great Barrier Reef) and nationally-listed species (like the Leadbeater’s possum).

Plan: The Act provides planning for the conservation of these environmental values; for example, developing recovery plans for threatened species and management plans for protected areas.

Assess: The EPBC Act assesses and approves developments that might harm the environmental values protected by the Act. The best known component in this third stream is project-based environmental impact assessment. The Act gives the government the power to block projects that adversely impact matters of national environmental significance.

2. Who doesn’t like the law?

Everyone.

Everyone has problems with the EPBC Act, but the issues are different depending on where you’re coming from.

Environmentalists complain the Act is not protecting the values it was set up to protect. Species and ecosystems are going extinct or degrading at an accelerating rate, and areas of special significance (like the Great Barrier Reef) are not being protected from global changes such as climate change.

Developers and farmers, on the other hand, complain the Act is making it harder to turn a profit and get projects off the ground. They claim the approval process is green tape that adds to the cost of a development and enables political green groups to attack them in the courts (lawfare).

3. What’s wrong with the law?

The problem with pointing out what’s ‘wrong’ with the EPBC Act is that you’ll be instantly dismissed by the ‘opposing’ side; and clearly I’m on the pro-environmental side. On this side of the fence, the claims of green tape and lawfare appear unsubstantiated and ideological (and for an excellent discussion on this see Peter Burnett’s last blog green tape and lawfare). However, they have been repeated so often they have become articles of faith to some groups.

On the other hand, there are a substantial number of studies showing the EPBC Act is failing to protect the things it was established to protect. For example, a new analysis by WWF Australia shows that more than a million hectares of threatened species’ habitat was cleared for agriculture in New South Wales and Queensland without referral to the federal environment department for assessment, one of the main purposes of the EPBC Act.

The Australian Conservation Foundation found that in the past 20 years, the period during which the EPBC Act was in force, an area of threatened species habitat larger than Tasmania (7.7 million hectares) has been logged, bulldozed and cleared. And they cite numerous case studies of where the government has failed to act even when something is referred under the EPBC Act.

Those who see the EPBC Act as a hindrance would simply discount such evidence no matter how well researched – “well, they would say that, wouldn’t they!” Then they’d probably follow up with something like “but we’re here for jobs and growth!”

Possibly harder to dismiss (on ideological grounds) is the review undertaken by the Australian National Audit Office. Just released, it found the government’s administration of the EPBC Act to be inefficient, ineffective and had failed to manage environmental risk. It also found funding cuts to the department since 2014-15 had slowed down the assessment and approval times for developments. It is a scathing reflection on the Government’s management of the Act.

4. How could we make it work better?

It’s been pointed out by many people that the existing EPBC Act could operate with fewer delays while still affording the same level of protection simply by providing more resources for its operation. Between 2013 and 2019, the federal environment department’s budget was cut by 40%, according to an assessment by the Australian Conservation Foundation. So it’s little wonder approval processes slowed.

Underlining this, at the end of last year the Government put $25 million towards speeding up environmental approvals, in effect simply reversing part of their cost cutting over the years.

In addition to resourcing, more effort towards coordinating assessments between the federal and state governments would go some way towards speeding up the approval process.

Changing the law itself is another approach but this is a chancy approach because it’s hard to negotiate anything through the unpredictable numbers in the Senate. Towards this end, the Act itself requires that it be independently reviewed every 10 years. The first review in 2009 came up with a comprehensive set of reforms to improve the operation of the Act but amidst the political turmoil of the time nothing every materialised.

Today we are waiting on the interim report of the second EPBC review led by Graeme Samuel, former Chair of the Australian Competition and Consumer Commission. Much rides on this report and everyone is wondering what it will say so close on the release of so many other damning reports on the EPBC Act’s inability to protect Australia’s environmental values.

5. What’s right about the EPBC Act?

The EPBC Act is a strong piece of legislation. It gives the Minister for the Environment the power to block actions and developments that threaten environmental values that the Government has said it would protect. It causes developers to consider the environmental impact of their projects and hopefully modify their plans to ameliorate potential impact. These things are good.

However, if the Minister chooses to use her (or his) discretion to determine a development isn’t threatening ‘matters of national environmental significance’, and the government starves the Department of Environment (currently sitting in the Department of Agriculture) of resources making it impossible to collect the evidence and assess the true nature of any potential development, the Act is disempowered.

At the end of the day, every piece of law is only as good as its implementation. If the government is failing in its duty of care for the nation’s natural heritage then we should be holding the government to account, not blaming the law that is supposed to protect that heritage.

Which begs the question, when will we demand our Government be true to its stated claim that it does care for our environment? Will it be before the predicted extinction of koalas in NSW by 2050? What about the impending destruction of the last remaining habitat of the stocky galaxias, a critically endangered native fish threatened by the Snowy 2.0 project (a project that has just been given the green light by Environment Minister Sussan Ley)? These are just two stories in the news this week. Thousands of other environmental values are similarly at risk, awaiting the Government’s next move on how it deals with Australia’s premier environmental law.

Image by Bruce McLennan from Pixabay

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

Have I got a (new green) ‘deal’ for you

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Open your eyes to a new framing for environmental reform and you’d be amazed what can be achieved.

By Peter Burnett

Reform is tough and environmental reform is no exception. It’s tough because the choices on the table almost invariably involve looking at the status quo, figuring out the trade-offs, and revealing winners and losers. The losers often use, or threaten to use, their political power to try and block the reform. As a result, instead of transformative and enduring change, we usually end of up with incremental shift that solves little.

But it may not have to be this way if we enter the reform process with a different framing of the problem and potential solutions. I’m going to try some reframing here by building on two things: overlaps in ecological and economic thinking and a change in Australian political culture produced by the pandemic. What might be achieved if this reframing was applied to the current review of the EPBC Act (Australia’s premier environmental law)?

On free lunches

Writing nearly fifty years ago for a public that was showing unprecedented concern about a degrading environment, ecologist Barry Commoner explained ecology by formulating four simple laws.

The first was ‘everything’s connected to everything else’. The second and third were ‘everything must go somewhere’ and ‘nature knows best’.

The last law was already familiar to economists: ‘there’s no such thing as a free lunch’ (which, by the by, also happens to be the slogan of our blog).

Economists had long recognised that every choice involves costs, starting with the opportunity cost of not doing something else. A choice to commit resources to one project inevitably means that those resources are no longer available for another.

Commoner was simply pointing out that environmental choices have a cost too. To take a straight-forward example, the more we use the airsheds above our cities as a sink for pollution, most of which comes from vehicles, the less those airsheds can do for us in supporting health and amenity. While we can certainly opt for some of each, the laws of nature preclude us from having both – there’s no such thing as a free lunch.

The facts of life

These ‘facts of life’ often leave us making binary choices and trade-offs (more of this and less of that). We can’t avoid choices, but sometimes we can change the facts that we are choosing between by reframing the problem.

Consider this energy example: developments in battery technology have made electric vehicles a feasible alternative to vehicles powered by fossil fuels. But they cost more, at least for the time being.

Returning to our urban air quality example, instead of choosing between driving more kilometres and reduced air quality, we could decide that high pollution levels are unacceptable and take polluting options off the table. Instead, technology would now allow us to frame our choice as between restrictions on (fossil-fueled) vehicle use and the cost of switching to (unrestricted) electric travel.

Yet we tend to stick to traditional framings. New approaches can be expensive and risky, or challenging to assumptions, values and interests. Consider our last federal election. The Opposition put forward a policy promoting electric vehicles; the government ran a scare campaign somehow connecting this to tradies losing their (fossil-fueled) utes.

Same old, same old

You see this phenomenon in politics all the time. It’s much easier to frame a debate in traditional ways than to risk rocking new boats or getting lost in complexities.

Take the current review of Australia’s national environmental law, the Environment Protection and Biodiversity Conservation (EPBC) Act, best known for requiring environmental impact assessment (EIA) of developments affecting threatened species and other ‘matters of national environmental significance’. The review is led by Professor Graeme Samuel, a commercial lawyer and regulator.

You can see the arguments playing out in the media. Pro-development interests emphasise the cost of duplication and delay while sloganeering about cutting green tape, while pro-environment groups argue that the current law has failed to slow accelerating environmental loss, while also demonising big business.

Same old arguments, same old replies.

Slogans aside, both sides are right. There is duplication and delay between federal and state EIA, and the EPBC Act is failing to put a measurable dent in environmental decline. If ever there was a time to attempt a reframing of the debate, surely this year, one of unprecedented bushfire crises and an economy king-hit by COVID-19 and in need of some wins, is it.

An inter-connected whole

There is another approach, a deal to be done here, but we’d have to think differently about how we do government.

Everything’s connected to everything else. Not just in the physical environment, but in the way we manage things in a federal system, which prefers to slice the environmental cake neatly into Commonwealth and State slices.

Back in the early 1990s we dealt with this problem through COAG (the Council of Australian Governments), drawing up an ‘Intergovernmental Agreement on the Environment’.

With that agreement moribund, it’s time for a new one. The trick would be for both levels of government to agree that the environment is an inter-connected whole, requiring a common policy framework and a shared commitment to high standards of conservation.

Implementation would be based on three main principles: scale, planning and cooperation.

The first is the principle of scale. This would see the Commonwealth focusing on the issues of largest scale, whether in terms of geography, politics or environmental significance, while the States would focusing on issues of regional and local scale. So the Commonwealth would lead on climate change for example, while the States would focus on development approval and catchment management.

The second is to plan, with those plans taking a proactive stance, a bias to conservation. This would involve preparing regional plans, which would protect areas of high conservation value while also identifying priority degraded areas for restoration.

The States would prepare these plans but the Commonwealth would accredit them as protecting matters of national environmental significance appropriately. It would then back that protection with investments, large ones; enough to restore environmental function to the point of resilience.

In return for legally binding State protection of its interests, the Commonwealth would bow out of EIA completely, saving considerable time and resources.

The third principle is good old-fashioned cooperation. This is never easy in a federal system, because the practical incentives to cooperate are often trumped by the political incentives of playing for advantage.

Not always however. As COVID-19 has shown, where there is real common cause, politicians of all stripes can get along famously.

Not a ‘Green New Deal’ but a new ‘Green Deal’

For this approach to work we’d have to agree that the environment is so important that federal-state politicking should come second. No easy task. We could start by asking independent statutory bodies like the Bureaus of Meteorology and Statistics to gather and hold environmental information, and to produce environmental accounts. This would guarantee an expert and impartial foundation of information for informed decision-making.

After our deadly Black Summer most people agree something needs to change.

In the Depression-era USA, President Franklin D Roosevelt enacted a wide-ranging and radical set of economic and social programs called the ‘New Deal’, to enable his country’s recovery. Currently there is much talk in the US about a ‘Green New Deal’ that will address climate change and economic inequality. This talk has spread to other countries, including Australia.

While the ‘Green New Deal’ might be seen as a project of the Left, could it be that in this extraordinary year of environmental, health and economic crises, the time for a new framing, a ‘New Green Deal’ has come?

The choices might still be hard but at least the trade-offs would be different. It’s at least time to start talking about it.

Image by FreePhotosART from Pixabay