Five transformations: Breathing life into Australia’s national environmental law

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By Peter Burnett

I often write in these blogs about Australia’s national environmental law, the Environment Protection and Biodiversity Conservation Act 1999 (EPBC Act). My excuse is that the EPBC Act is the most important environmental law in the country, but it doesn’t work. This is something we all should be worried about, and, as you’ve heard before, this is a piece of legislation that badly needs reform. Australia’s new federal government is making hopeful sounds here but, again as you’ve heard before, talk is cheap.

The job of reform is big, complex and challenging. However, if you reflect on the basic aims of what the EPBC Act was established to achieve, I think it’s possible to envisage a simple pathway forward. And that pathway involves five basic transformations on how the Act currently performs.

The story so far …

The new Australian government has promised to overhaul the EPBC Act and to establish a independent federal Environmental Protection Agency (EPA).

In pursuit of this reform, environment minister Tanya Plibersek has promised to respond to Professor Graeme Samuel’s 2020 review of the Act by the end of this year and to table proposed new laws in 2023.

Plibersek has hinted strongly that the government will follow Samuel’s recommendations, so that provides a clear starting point for discussion while we wait for the detail of the government’s plan.

From great green hope to great green flop

Looking back over the history of the EPBC Act — three years in development and 22 years in operation — it is clear that few of the high hopes held for the Act have been realised. While it expanded federal government involvement in environmental regulation significantly, the evidence suggests that the benefits of this have been marginal. Worse, when we look at the whole picture, the limited benefits achieved are partly offset by the resulting regulatory duplication.

The fundamental reason for this failure to deliver is not poor regulatory design, but gross under-implementation, mostly the result of under-resourcing and a lack of political will.

The EPBC Act can be seen as a three-legged stool on which most of one leg, dealing with environmental planning, is largely missing. (The other two legs protect the so-called ‘matters of national environmental significance’ and provide for environmental impact assessment.)

Most of the plans envisaged by the Act, and essential to its operational, are either vague in content, sitting unimplemented on the shelf, or simply not done.

Meanwhile, as Professor Samuel put it in his review, ‘Australia’s natural environment and iconic places are in an overall state of decline and are under increasing threat.’

What should we do about it?

The EPBC Act is highly complex. It is over 1,000 pages long and there are hundreds of pages of supporting regulations and determinations.

And the Act in turn sits within a complex set of roles, responsibilities, laws and agreements that govern the environment in Australia’s federal system.

Understanding the system is no mean thing, let alone fixing it. So, where to start?

When I went through Professor Samuel’s 38 recommendations, it struck me that he was calling for a complete transformation, in fact five of them. These are:

First, to change from prescriptive regulatory processes to setting and pursuing national environmental outcomes

  • the EPBC Act (and its state counterparts) focus on following due process, a ‘box ticking’ exercise that requires consideration of various factors such as biodiversity loss and the precautionary principle but, at the end of the day, allows governments to decide pretty much anything they like

Second, to shift from Indigenous tokenism to full use of Indigenous knowledge and a full recognition of Indigenous values

  • Samuel was highly critical of the tokenism of current arrangements, while recent events, especially the Juukan Gorge disaster in 2020, have generated considerable impetus for change

Third, to simplify regulatory processes and harmonise environmental processes and outcomes between federal and state jurisdictions

  • this isn’t just about ‘streamlining’ which has become almost a cliché, but a call for harmonisation of processes and outcomes across the nation

Fourth, to lay new foundations for quality decision-making

  • many of the foundations of the current system are either significantly under-done (eg environmental information, compliance and enforcement) or not done at all (eg bioregional planning across the continent)

Fifth, to restore trust in decision-making

  • damningly, Samuel found that none of the key stakeholder groups — business, environment groups and the wider community — trusted the current arrangements.

The reform process going forward

I’ll take a closer look at each transformation in a series of blogs over the next two months, in the lead up to Tanya Plibersek’s response to Samuel.

The reform debate will last right through 2023 and into 2024, as, once the response is on the table, there’s a large reform Bill to draft and an extended Parliamentary process to navigate as Plibersek seeks to shepherd her reforms through a Senate in which the balance of power, for the first time, lies with a cross-bench that is tinged a fairly dark shade of green.

Among other things, she will have to deal with very strong pressure to extend the EPBC Act by including a ‘climate trigger’.

My aim in the lead-up to that debate is to offer some points of focus in a discussion that always risks getting lost in its own complexity. (If you prefer to watch rather than read, I presented these transformations in a Parliamentary Library Seminar on 30 August.)

The problem is enormous and policy ambition needs to be high — bring on the reform!

Banner image: The job of reform is big, complex and challenging. However, it’s possible to envisage a simple pathway forward involving five basic transformations. (Image by David Salt)

A new government and a new environment minister – what now for Australian environmental policy?

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By Peter Burnett

So Australia has a new Labor government, having secured its win on the back of a ‘small target’ strategy that meant saying as little as possible about substantive policy (including on the environment).

That’s nice for them, but what now for the environment itself, especially since Labor’s intended environment minister, Terri Butler, lost her seat to a Green?

Before I get to that, a little more on the environmental implications of the election results.

Despite both major parties largely ignoring the environment (see my last blog), it was quite a ‘green’ election, with the Greens picking up three inner-city Brisbane seats in the lower house to add to their base of just one, while also jumping from nine to 12 seats in the Senate, a 33% increase.

More than this, there was a ‘Teal wave’ in the lower house, with five supposedly-safe ‘blue-ribbon’ Liberal Party seats falling to pro-climate-change ‘Teal’ Independents, joining Zali Steggall and several others to create a loose pro-climate cross-bench ginger group of up to nine.

Meanwhile, the Senate, with the addition of Canberra-based Independent David Pocock, now has a pro-climate majority.

Together these changes represent a major shift in favour of environmental action. (I’m going to assume that the pro-climate MPs will be generally pro-environment, although the degree to which this is ‘on the record’ varies between these MPs.)

While it’s hard to divine the reasons for this shift, I’ll go with conventional wisdom for the moment, which is that our recent horror years of drought, fire, smoke, storm and flood have brought climate change in particular into the homes many millions of Australians, literally.

Policy on the record

Until just before the election, Labor had well-developed policies on climate and water, but a small grab-bag of policies on the rest. At the last minute, Labor released a policy on environmental law reform, in the context of the previous government’s failure to table a full response to the 2020 Samuel Review of Australia’s national environmental law, the Environment Protection and Biodiversity Conservation (EPBC) Act.

Labor promised a full response to the Samuel Review, but in the meantime says they will establish an independent Environment Protection Agency. The agency will have two roles, one concerned with gathering and analysing environmental information and the other focused on compliance with environmental regulation and assurance that environmental standards are being met.

Labor highlights that, as well as being a custodian for national environmental information, the EPA’s data division will take a ‘leadership role’ in environmental accounting. This is a welcome and overdue development for a decision tool that remains largely unrecognised.

Policy off the record

While Labor lifted its game at the last minute with its environmental law reform policy, they can hardly be said to be environmental-policy high performers.

Their ‘43% by 2030’ climate target, while a significant advance on the ‘26 to 28%’ target of the outgoing government, is still much criticised as falling well short of what the Paris target of ‘well below 2 degrees’ requires.

And the environmental law reform commitment remains, for the most part, a commitment to come up with answers rather than an answer in itself. Once the new government starts work on fleshing its policy out, they will find that the job requires much more than just a streamlining of environmental regulation and some extra money for a resource-starved department.

The really big challenges are a lack of clarity and ambition about environmental outcomes and a major under-investment in environmental restoration.

While the Paris targets and our ‘Net Zero by 2050’ commitments provide a clear policy objective for climate policy, the same cannot be said for other areas, biodiversity in particular.

Australia (and almost everyone else) has failed to engage seriously with international targets based on halting and reversing biodiversity decline and our existing domestic biodiversity policies are either meaningless waffle or non-existent.

And our data is so poor that even the experts find it hard to tell us what a policy to halt biodiversity decline would look like on the ground.

Our history of policy failure to date suggests strongly that if reversing biodiversity decline is to be the goal, major institutional change and major investment in environmental restoration will be needed, far beyond anything seen to date.

And the new minister?

The good news is that Tanya Plibersek has been appointed environment minister in the new government. Announcing her appointment, the Prime Minister said Ms Plibersek had a long-term interest in the environment and would be ‘outstanding in that area … particularly in the area of the Murray Darling Basin Plan … it’s very important that that actually get delivered.’

Ms Plibersek is a very experienced and capable operator with previous ministerial experience. She is often spoken of as a future leader and has political heft.

The bad news is that her challenge is not simply to be a political success in the role, nor even to deliver real progress on the ground. The real challenge is to lay the foundations for ongoing success, against a backdrop in which the goal-posts, thanks to climate change, keep moving further away.

Tanya Plibersek will need all her considerable skill and experience, and a significant dollop of Parliamentary and stakeholder goodwill, if she is to have any prospect of meeting this daunting challenge.

We wish her luck.

Banner image: The Australian numbat, now listed as Endangered. Widespread clearing of their habitat and predation by feral animals have led to their steep decline. Arresting the collapse of our biodiversity is just of several major environmental challenges Australia’s new government needs to tackle. (Image by Seashalia Gibb from Pixabay)

It’s election time! For one party the environment is not a priority. For the other, it’s not something to talk about.

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By Peter Burnett

With Australia heading to the polls at the end of this week, what better time to look at election policies on the environment, especially those of the two parties capable of forming government: a re-elected Coalition, or Labor?

Climate gets the lion’s share of environmental attention these days, so I’ll focus on the rest, but I can’t resist a couple of quick comments on climate before doing so.

First, both major parties have committed to net zero by 2050, but Labor is more ambitious in the short term, with a 2030 target of 43% (adopted in 2021), compared to the Coalition’s target of 26-28% (adopted in 2015).

Second, the issue is not just the target but whether there’s a credible path to achieving it. I’ve already criticised the government for tabling a plan for its new 2050 target without any new policy to go with it.

As for Labor, they don’t have any measures for getting to zero by 2050 either, though they have supported their ‘43% by 2030’ target with policies and modelling.

Whoever wins government, they’ll need to get cracking on post-2030 policy, as 2030 is less than eight years away and climate is by far the biggest challenge for governments since World War II.

As to environmental policy on everything else, it boils down to ‘not a focus for us’ vs ‘not telling’. Let me explain.

The Coalition on the Environment

The Coalition at least has a policy, but that’s the high water mark of my compliments.

Climate aside, three things stand out.

First, for a party that likes to claim the mantle of being the best economic managers, they are heavily into creative accounting. A number of the claims in the Coalition policy contain big numbers, such as the claim that they are investing $6 billion for threatened species and other living things, but they puff these up by counting past spending and/or projecting a long way forward.

I’ve criticised this practice as ‘disingenuous bundling’. Certainly, one of the headline policies, ‘$1 billion for the Reef’ represents little more than business as usual.

The second stand-out theme is making a virtue of necessity. The Coalition has a reasonable policy on waste and recycling. And they quote the Prime Minister himself as arguing that ‘It’s our waste, it’s our responsibility’.

The back-story however is that we used to ship a lot of domestic waste to China, but they banned this from 2018. In reality, we had no choice but to fix the problem.

Again, the Coalition policy recites money spent on bushfire recovery and flood response, but practically speaking they had no choice in this. Hardly inspiring.

Finally, they tell you that they have put another $100 million into the Environment Restoration Fund. I’ve criticised this elsewhere as pork-barrelling.

All in all, if you ignore the pork, necessary disaster-response and the smoke and mirrors, it’s pretty much an empty box, though freshly wrapped.

Labor on the Environment

While the Coalition reached for the wrapping paper, Labor have gone for ‘keeping mum’.

Pursuing a small-target strategy overall, but forced by circumstance to engage with the high political risks of climate policy, Labor have gambled that they can run dead on the rest.

They have released a few topic-specific policies. Labor will double the number of participants in the successful Indigenous Rangers program and spend $200m on the Great Barrier Reef, on top of the Coalition’s $1 billion by 2030. They’ll also spend $200m on up to 100 grants for urban rivers and catchments.

A little more significantly, Labor’s Saving Native Species Program commits $224.5 million over four years to preparing overdue species recovery plans and investing in the conservation of threatened species, especially the koala.

Like the Coalition, however, Labor likes to make virtue out of necessity: more than 10% of this money goes to fighting Yellow Crazy Ants in Cairns and Townsville.

All of this is at the margins.

But on the big issues … silence.

What of the 2020 review of Australia’s national environmental law by Professor Graham Samuel? What about the ongoing decline identified by successive State-of-the-Environment reports?

Labor’s website cheerily tells us that: ‘Labor will commit to a suite of environmental policies that continues Labor’s legacy on the environment, and we’ll have more to say about this over the coming weeks’ (my emphasis).

Well, if the ‘coming weeks’ refers to the election campaign, time’s up.

And the winner is …

If you are looking to the major parties for vision and boldness on environmental policy then, with the possible exception of Labor’s climate policy, you’re destined for disappointment.

The Greens are always strong on environment, and have some well-founded hopes of winning an extra seat or two, so they are a definite option for environmentally-concerned voters.

With minority government a real possibility and the major parties reluctant to associate with the Greens, it’s the ‘Teal’ and other climate-focused independents like David Pocock in the ACT (collectively, ‘Teals’ for short) who look to have the most potential to up the ante on the environment.

Standing mostly in well-off inner-city seats and blending liberal blue with environmental green, the Teals may find themselves holding the balance of power, at least in the Senate and possibly in the House of Representatives as well. While climate is clearly their focus, I’d expect the Teals to push strong environmental policy generally, if the chance comes their way.

Teal anyone?

Banner image: Look closely at what both major parties are offering on the Environment and there’s nothing to get excited over. (Image by yokewee from Pixabay)

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

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By Peter Burnett

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

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

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

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

A big barrel of pork?

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

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

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

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

A tricky Senate bypass

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

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

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

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

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

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

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

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

A rod for the government’s back?

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

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

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

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

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

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

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

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

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

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

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

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

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

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

What price fundamental reform?

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

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

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

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

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

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

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

The Farm Biodiversity Stewardship Market Bill 2022 – Watch out for weasel words

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By Peter Burnett

In 2020 I was a member of a consultative group established by Professor Graham Samuel in his review of Australia’s national environmental law, the Environment Protection and Biodiversity Conservation (EPBC) Act.

At several points in our discussions, Professor Samuel, a highly experienced and well-regarded former regulator, cautioned against ‘weasel words’: that is, hollow or ambiguous words that create a false sense of certainty or clarity.

I agreed with Professor Samuel whole-heartedly: one of the secrets of good regulation is to use simple and clear words that leave no scope for confusion or manoeuvre.

Say what you mean and mean only what you say. No legal fudges. It gives everyone certainty and increases trust in a regulatory system.

The Morrison government’s new Agriculture Biodiversity Stewardship Market Bill 2022 (Biodiversity Credits Bill), was introduced last month (February) with very little fanfare. It fails the weasel-words test by including words copied from a similar law on carbon credits, the Carbon Credits (Carbon Farming Initiative) Act 2011 (‘Carbon Credits Act’).

Creating biodiversity credits

Governments in Australia have experimented over the years with biodiversity stewardship schemes (for example, see Learning from agri-environmental schemes in Australia). Typically, these schemes pay farmers to protect or restore native vegetation on their land. The Morrison government is the latest to trial such a scheme.

One difference this time around is that the government is going further than before, using the scheme to lay foundations for wider biodiversity markets. A key to doing this is to create ‘biodiversity credits’ as a new form of property readily bought and sold.

This requires legislation and hence the Biodiversity Credits Bill. The Bill is modelled on the Carbon Credits Act.

In principle, this is a good thing.

Weasel Words

The problem is that the part of the Carbon Credits Act that deals with the integrity of carbon credits was watered down by the Abbott government in 2014 as part of its policy of replacing a carbon price with a (much more limited) purchasing of emission reductions by government.

At the time the government called this watering-down ‘streamlining’ and ‘simplification’, using its now-standard justification that the changes would ‘provide greater flexibility … while retaining the same high standards …’

Integrity is essential to ensuring that carbon or biodiversity credits represent a real gain for the environment at full face value. To achieve this, the credits must be both additional to business as usual and achieved in full compliance with a scientifically robust methodology (renamed ‘protocol’ in the new bill).

The methodology requirements for carbon credits, which are set by the minister, were watered down by the following changes:

The Biodiversity Credits Bill adopts this same watered-down system from the Carbon Credits Act.

It also lowers the bar on the integrity standards, dropping a requirement in the Carbon Credits Act that any necessary assumptions in an approved methodology be ‘conservative’ and replacing it with a requirement that any such assumptions be ‘reasonably certain’.

Superficially, the changes look minor, even trivial. In substance, they are very significant.

Their net effect was and is to weaken the benchmark for, and rigour of, the expert advice; to allow the minister to disregard the advice once given; and to allow more use of CSIRO scientists who, as government employees, can be subject to greater pressures from within government, subtle or otherwise.

In addition, the weaker and more subjective the language, the more difficult it becomes to mount a court challenge on the ground of failing to meet statutory requirements.

What now?

Rumour has it that the government is pushing for a quick passage of the Bill in the few days remaining before the Parliament is prorogued for a May election — presumably on the expectation of bipartisan support.

Such support would deliver another blow to the environment by opening the new biodiversity credits to political influence, compromising their integrity. As the market for credits grows, there will pressures from suppliers to make it easier to have approaches accredited, and from buyers to increase the supply of credits to meet demand and lower prices.

The 2014 carbon credit integrity model should not be adopted for biodiversity credits.

But more than that, biodiversity credits are like a currency. Just as the integrity of our currency has been entrusted to the Reserve Bank board, an independent and expert body, so too should the integrity of biodiversity (and carbon) credits be entrusted to an independent expert body.

I hope the Senate will not support the Biodiversity Credits Bill in its current form.

Act in haste, repent at leisure.

Banner image by monicore @ Pixabay

And for my next environmental trick …

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Will the federal government engage in real environmental reform before the election?

By Peter Burnett

One of my favourite environmental cartoons appeared in 2015 in the lead up to the Paris climate meeting. It depicts Australia’s environment minister (who was then Josh Frydenberg) as a magician performing for a domestic audience. The magician pulls a climate policy rabbit out of a hat. Meanwhile, a giant rabbit called ‘Paris’ peers round a curtain on the stage …

This October Prime Minister Morrison tried something of a similar trick, releasing the ‘Australian Way’, a climate ‘plan’ that ramped up Australia’s climate ambition to Net Zero by 2050, without the benefit of any new policy to support this heightened ambition.

With almost breathtaking hutzpah, Mr Morrison even told the domestic audience that ‘the Australian way shows a way for other countries to follow’! Meanwhile, a justified monstering awaited him at Glasgow …

A Magic Pudding

At the time of the PM’s announcement, my immediate thought was not of magicians but of Norman Lindsay’s 1917 children’s book, The Magic Pudding, in which Albert, the irascible pudding, is forever being eaten but is never consumed.

When the ‘modelling’ behind the plan was released, it confirmed my suspicion of ‘magical thinking’. For example, it uses an unrealistic baseline scenario called ‘No Australian Action’, in which every country except Australia reduces their emissions to achieve a below 2 degrees emissions trajectory. The scenario then assumes that the only adverse reaction to such free riding by Australia comes from investors imposing a capital risk premium.

Meanwhile, the costs of climate inaction, imposed by extreme weather, climate refugees and so on do not rate a mention.

Content-free reform

While the government has yet to display such blatant ‘magical thinking’ in its approach to reforming Australia’s national environmental law, the Environment Protection and Biodiversity Conservation Act 1999 (EPBC Act), it is certainly showing ‘magical’ tendencies in the sense that the ‘reforms’ it has announced to date contain nothing real.

Readers will recall that the EPBC Act was the subject of a major independent review by Professor Graeme Samuel in 2020. The centrepiece of the Samuel Review was a shift from process-based regulation to outcome-based National Environmental Standards.

Releasing a reform ‘pathway’ in response to the Samuel Review in June this year, the Government announced that it would adopt Interim Standards that — wait for it — reflected the (process-based) status quo!

Yet all is not quite as vacuous as it seems. The government does have an agenda, just not one concerned with halting environmental decline.

Rather, its priority is to devolve environmental approvals to the states. It has labelled its devolution proposals as ‘single touch’ approvals and declared these to be the ‘priority reforms’ in its response to the Samuel Review.

While, on paper, there’s a timeline for substantive environmental reforms to come later, in reality, nothing happens until Parliament passes the necessary legislation.

The subtext? If you want environmental reform, you’ll pass our devolution laws.

Trouble is, the devolution laws are stuck in the Senate and are looking increasingly unlikely to pass. Cross-benchers have called the government’s bluff.

So, with an election looming, will the government be content to leave it at that?

One more shot in the environmental reform locker?

Well, the government has another shot in its environmental reform locker, but it is not clear how they will use it.

In the last federal Budget, they announced $2.7 million over three years to pilot a Commonwealth-accredited regional plan to ‘support and accelerate development in a priority regional area’. Tiny as it is, this is a response to one of Professor Samuel’s 38 reform recommendations.

Accrediting bioregional plans under the EPBC Act holds the prospect of both better-protecting the environment while also fulfilling the government’s dream of getting the federal government out of giving environmental approvals on a case-by-case basis and leaving that to the states.

Especially in light of the Senate bottleneck with the ‘single touch’ legislation, you’d think the government would have moved quickly with this project, to get some runs on the board before the election.

This expectation is reinforced by the Budget itself, with the largest share of the funding, $1.179 million, allocated to the current financial year.

Yet with the year almost half over, there’s been no announcement of a partnership with a state or territory for the pilot plan.

Going to plan(?)

So, is the federal government taking regional environmental planning seriously? If it does, there’s a lot of groundwork to do and statutory requirements to be met. ‘Bioregional’ plans, as the EPBC Act calls them, can be disallowed by either House of Parliament; they could also be subject to court challenge if substantive requirements were not met.

With nearly half the year gone, there’s probably not time before the election for much more than an announcement of a deal with one lucky state or territory to develop a pilot regional plan.

Not a lot of electoral bang there.

And there are also potential downsides. For example, the exercise of preparing a regional plan might reveal that the environment in that region in fact needs more protection (and more investment in recovery) that the government might like.

There’s always the base political option of not taking regional planning seriously and simply putting a federal ‘koala stamp’ on an existing, or rustled up, state plan. This could then be trumpeted as the first instalment of a major reform, though it would almost certainly bring on Parliamentary and legal challenges.

Certainly nothing for the environment in that. But would the Coalition see votes in it?

Or will it simply roll out some ‘practical environmental restoration’ (known to the rest of us as marginal-electorate-targeted environmental pork barrelling) as it did last time with the $100 million Environmental Restoration Fund?

Magic Pudding anyone?

Banner image: And for my next trick (Image by u_dg9pheol at Pixabay)

Crunch time for reform of national environmental law

Does the Government’s ‘pathway for reforming national environmental law’ lead anywhere?

By Peter Burnett

With Parliament rising this Thursday for the winter recess, this week is crunch time for reform of Australia’s national environmental law, the Environment Protection and Biodiversity Conservation Act 1999 (EPBC Act).

When Environment Minister Sussan Ley popped up to address the National Press Club last Tuesday, and simultaneously released a document and timeline under the title ‘A pathway for reforming national environmental law’, it was clear that the push was on to get the government’s environmental reform agenda through, before MPs leave Canberra’s cold winter behind for their (mostly) warmer electorates.

The story so far

The EPBC Act must be reviewed every 10 years. In 2020 the second such review was undertaken by Professor Graeme Samuel, who submitted an interim report last June and a final report in October.

Professor Samuel was very critical of the Act, and the government’s administration of it, in both these reports. So was the Auditor General, who also released a highly critical report in June.

While it might seem that the government were stung into action by the release of two critical reports last June, it seems more likely that they wanted to capitalise on the sense of urgency created by these reports to pursue their own agenda. This agenda was confined to one of the many issues raised in the Review, that of regulatory duplication and overlap, or what the government terms ‘green tape’.

In any event, the government responded without waiting for the final Samuel Report, introducing an EPBC ‘Streamlining Bill’ last August, guillotining it through the House of Representatives and introducing it in the Senate, where it became stuck in November, following a Senate Committee Inquiry.

In that Inquiry, three key cross-benchers – Senators Rex Patrick, Jacqui Lambie and Stirling Griff – sided with Labor and the Greens in opposing what they saw as a rushed attempt to devolve environmental decision-making to the states.

In response, and no doubt seeking to win over these key votes, the government introduced a second bill, the EPBC ‘Standards and Assurance Bill’ early this year. This Bill provided for the environment minister to set national environmental standards and for an independent ‘watchdog’ over the new devolved arrangements, the Environment Assurance Commissioner.

The government also announced that the first and interim set of national environmental standards would reflect the existing (and much criticised) Act, rather than the new draft standards that Professor Samuel had included in his final report.

Like the Streamlining Bill, the Standards and Assurance Bill was referred to a Senate Inquiry, which reported earlier this month.

This time the position of the three critical cross-benchers is less clear, as only Senator Patrick prepared a dissenting report. However, Senator Lambie later commented to the media.

Senator Patrick was critical of both the standards and the Assurance Commissioner. He was concerned that the government’s proposed standards were much weaker than Professor Samuel had recommended. He was also critical of the fact that the standards would be made by the minister rather than by Parliament.

As to the Assurance Commissioner, Senator Patrick’s view was that, for the watchdog to be effective, ‘it must have a sharp set of teeth.’

Quoted later in The Guardian, Senator Lambie said was her usual feisty self but did not rule out compromise. The reforms would be reforms would be ‘dead in the water if [Minister Ley] doesn’t tighten up the standards’ she said.

Woo any waverers while also preparing for loss

While Senator Lambie hasn’t ruled out compromise, the government have made it clear that it will not compromise on devolving many EPBC decisions to the states and starting out with standards that merely reflect the current law.

However, it clearly feels vulnerable to the criticism that it has simply cherry-picked Professor Samuel’s recommendations, something that he warned against in his report.

As a result, Minister Ley has released a document entitled ‘A pathway for reforming national environmental law’, supported by a proposed timeline depicting four stages of reform through to 2024.

The problem with this pathway is that it contains very little of substance beyond what has already put on the table. The pathway and timeline are generic; they outline a staged process and contain a commitment to consultation.

However, the pathway could lead to anywhere or to nowhere in particular. There is no vision, no sense of where the government wants to go in terms of substantive policy, beyond the barebones commitment to moving to standards-based decisions.

Left with questions

As a result of the government’s decision not to respond to the Samuel Review, but instead to start a reform process leading who-knows-where, we are left with some big questions.

Does the government agree with Professor Samuel that ‘Australia’s natural environment and iconic places are in an overall state of decline in the under increasing threat’? We do not know.

Do they agree with him that ‘broad restoration is required to address past loss, build resilience and reverse the current trajectory of environmental decline’? We do not know.

Do they agree with Professor Samuel that ‘to shy away from the fundamental reforms proposed by this Review is to accept the continued decline of our iconic places and the extinction of our most threatened plants, animals and ecosystems’? In my view, clearly not, although the government is trying to build a credible argument to say otherwise.

Will the government manage to secure the vote of at least one of the three key cross-bench Senators to get this hollow plan through the Parliament? We’ll know very soon, possibly even before you read this.

Image by Seashalia Gibb from Pixabay.

‘Standards’ in name only?

The government’s National Environmental Standards don’t do what you might expect

By Peter Burnett

Last month the federal government introduced the Environment Protection and Biodiversity Conservation Amendment (Standards and Assurance) Bill 2021 (the Standards and Assurance Bill).

The Standards and Assurance Bill is a follow-on to an earlier bill (the Streamlining Bill), which I’ve written about before (see Red Lines for Green Values).

The Streamlining Bill would amend the EPBC Act to ‘streamline’ environmental decision-making by enabling development approvals, following environmental impact assessment, to be devolved to states and territories. This idea used to be called the ‘one-stop shop’ approach but the government now calls it ‘single-touch approvals’.

The Standards and Assurance Bill provides for National Environmental Standards; it also establishes an independent statutory position of Environment Assurance Commissioner, tasked mainly with monitoring and auditing decision-making by states under devolved arrangements.

The standards should set hard environmental bottom lines, but if this bill goes through, they won’t. More on this in a minute, but first a little context.

Where are we going with this?

The government presents both bills as first steps in responding to the comprehensive reforms recommended by Professor Graham Samuel in his 2020 Independent Review of the EPBC Act.

While it is true that Professor Samuel envisaged the devolution of development approvals to the states as part of his reform package, it is quite a stretch to argue that these two bills are the first steps of a comprehensive reform process, for several reasons.

The most significant reason is that the government has not tabled a response to the Samuel Review and so we have no idea what the government’s environmental reform agenda is, if indeed it has one.

If these two bills are the first steps, then they are steps towards a secret, perhaps even unknown, destination. All we know about the government’s intentions is that its policy narrative on environmental reform has rarely strayed beyond its ‘cutting-green-tape’ mantra of regulatory efficiency.

Stuck in the Senate

But back to the two bills. The Streamlining Bill got stuck in the Senate after three crucial cross-benchers opposed it, not because they were fundamentally opposed to devolution, but because they wanted to be satisfied that devolved approvals would be made properly.

At that point, in November 2020, the government had tabled neither the Samuel Review, nor the template for bilateral agreements setting out accreditation arrangements. In other words, it was asking the Parliament to take it on trust (see Trust us? Well let’s look at your record.)

The government then introduced the Standards and Assurance Bill in February 2021. Environment minister Sussan Ley presented the Bill as a step in the reform process but, in the absence of a broader vision from the government, it’s hard not to see the Bill as an attempt to get the Streamlining Bill over the line by responding to cross bench concerns.

At first blush, the Standards and Assurance Bill does advance two key recommendations from Professor Samuel.

The problem is, that’s all it does. It’s very concerning that the government is resorting to a piecemeal approach to legislative reform.

With yet more horrific environmental news emerging in recent weeks (see ‘Existential threat to our survival’: see the 19 Australian ecosystems already collapsing), the government’s approach is mystifying: they just don’t seem to get how urgent the need for action is, or don’t want to.

When is a standard not a standard?

As to the Standards and Assurance Bill itself, it’s the provisions on the standards that worry me.

In fact, I don’t think the ‘standards’ are standards at all. If standards for decisions are set by law, you’d be forgiven for expecting that an environmental approval that failed to meet the standards would automatically be invalid and that an interested party could get a court decision to that effect.

Not so with these standards. Here, compliance with standards will be a subjective question for the decision-maker. And the question will not be about compliance, but inconsistency. In other words, the question for the federal environment minister, or an accredited state decision-maker, won’t be ‘have I complied with the standard?’ but ‘in my opinion, is this decision not inconsistent with the standards?’

Because the question of inconsistency is made a matter of opinion, the courts will tend to uphold any decision based on that opinion, provided there is a rationality of some sort to it, because the courts are extremely reluctant to substitute their opinion for that of a statutory decision-maker.

This is particularly the case when one reads on in the bill and discovers that, in forming her or his opinion about inconsistency, the decision-maker can have regard to federal or state policy, plans, programs or spending decisions, indeed anything that might conceivably be relevant.

Lowering the bar

This opens up a giant back door to ‘trade-off’ decisions, the very antithesis of meeting standards.

The explanatory memorandum tabled by the government gives the example of a decision-maker approving impacts on the values of a National Heritage place if those impacts are ‘balanced by mechanisms that promote those values (which may, for example, be delivered through funding of activities by a state relating to the promotion of those values)’.

I have my own examples, hypothetical of course.

The federal environment minister might decide that a decision to demolish part of the Australian War Memorial (a National Heritage place) is ‘balanced’ by a government decision to spend a lot of money on building a new exhibition hall. Thus a standard that says the fabric of heritage buildings should be conserved could be met by demolishing some of that fabric!

Or a state minister might decide that the loss of a population of a critically endangered species is ‘balanced’ by an investment in research on the species, even if the standard says that all populations of critically endangered species should be maintained.

Note that these ‘balancing’ decisions would not required to comply with federal offsets policy, even though they are offsets by another name. So the bill opens a possible reduction in standards.

And just in case a nervous state decision-maker thought they couldn’t come up with a ‘balancing’ state policy, plan, program or spending decision (hardly likely), they can apply to the federal minister for an exemption in the ‘public interest’! Perhaps states will resort to this if they want to approve a controversial development and shift the environmental blame to Canberra!

But wait, there’s more

As if this wasn’t enough, the minister said in her second reading speech that the initial set of standards would reflect the existing EPBC Act, ie she will ignore the standards recommended by Professor Samuel, even though she’s had them since 30 October last year. The problem with the existing standards is that they are all either process driven, or so broad that only the most extreme decision would contravene them.

Moreover, once the states are accredited under existing standards, they, and development interests, can be expected to push back hard against any proposals to tighten the standards, probably relying on arguments about moving the goal posts and costing jobs.

Standards in name only

It all boils down to this: if the Standards and Assurance Bill is passed, the standards we will get will be standards in name only. They won’t be a step forward, but backwards.

Cross-benchers looking to be satisfied that devolved approvals would protect the environment are surely facing disappointment.

Postscript: The Senate Environment and Communications Committee is conducting an Inquiry into the Standards and Assurance Bill. Submissions are due by 25 March. See: https://www.aph.gov.au/Parliamentary_Business/Committees/Senate/Environment_and_Communications/Protectionandbiocon

Image by Alain Audet from Pixabay

A major report excoriated Australia’s environment laws. Sussan Ley’s response is confused and risky

By Peter Burnett

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

It’s official: Australia’s natural environment and iconic places are in deep trouble. They can’t withstand current and future threats, including climate change. And the national laws protecting them are flawed and badly outdated.

You could hardly imagine a worse report on the state of Australia’s environment, and the law’s capacity to protect it, than that released yesterday. The review of the Environment Protection and Biodiversity (EPBC) Act, by former competition watchdog chair Professor Graeme Samuel, did not mince words. Without urgent changes, most of Australia’s threatened plants, animals and ecosystems will become extinct.

Federal environment minister Sussan Ley released the report yesterday after sitting on it for three months. And she showed little sign of being spurred into action by Samuel’s scathing assessment.

Her response was confusing and contradictory. And the Morrison government seems hellbent on pushing through its preferred reforms without safeguards that Samuel says are crucial.

A bleak assessment

I was a federal environment official for 13 years, and from 2007 to 2012 was responsible for administering and reforming the EPBC Act. I believe Samuel’s report is a very good one.

Samuel has maintained the course laid out in his interim report last July. He found the state of Australia’s natural environment and iconic places is declining and under increasing threat.

Moreover, he says, the EPBC Act is outdated and requires fundamental reform. The current approach results in piecemeal decisions rather than holistic environmental management, which he sees as essential for success. He went on:

The resounding message that I heard throughout the review is that Australians do not trust that the EPBC Act is delivering for the environment, for business or for the community.

A proposed way forward

Samuel recommended a suite of reforms, many of which were foreshadowed in his interim report. They include:

  • national environmental standards, legally binding on the states and others, to guide development decisions and provide the ability to measure outcomes
  • applying the new standards to existing Regional Forest Agreements (RFAs). Such a move could open up the forest debate in a way not seen since the 1990s
  • accrediting the regulatory processes and environmental policies of the states and territories, to ensure they can meet the new standards. Accredited regimes would be audited by an Environment Assurance Commissioner
  • a “quantum shift” in the availability of environmental information, such as accurate mapping of habitat for threatened species
  • an overhaul of environmental offsets, which compensate for environmental destruction by improving nature elsewhere. Offsets have become a routine development cost applied to proponents, rather than last-resort compensation invested in environmental restoration.

Under-resourcing is a major problem with the EPBC Act, and Samuel’s report reiterates this. For example, as I’ve noted previously, “bioregional plans” of land areas – intended to define the environmental values and objectives of a region – have never been funded.

Respecting Indigenous knowledge

One long-overdue reform would require decision-makers to respectfully consider Indigenous views and knowledge. Samuel found the law was failing in this regard.

He recommended national standards for Indigenous engagement and participation in decision-making. This would be developed through an Indigenous-led process and complemented by a comprehensive review of national cultural heritage protections.

The recommendations follow an international outcry last year over mining giant Rio Tinto’s destruction of 46,000-year-old caves at Juukan Gorge in Western Australia. In Samuel’s words:

National-level protection of the cultural heritage of Indigenous Australians is a long way out of step with community expectations. As a nation, we must do better.

Confusing signals

The government’s position on Samuel’s reforms is confusing. Ley yesterday welcomed the review and said the government was “committed to working through the full detail of the recommendations with stakeholders”.

But she last year ruled out Samuel’s call for an independent regulator to oversee federal environment laws. And her government is still prepared to devolve federal approvals to the states before Samuel’s new national standards are in place.

In July last year, Ley seized on interim reforms proposed by Samuel that suited her government’s agenda – streamlining the environmental approvals process – and started working towards them.

In September, the government pushed the change through parliament’s lower house, denying independent MP Zali Steggall the chance to move amendments to allow national environment standards.

Ley yesterday reiterated the government’s commitment to the standards – yet indicated the government would soon seek to progress the legislation through the Senate, then develop the new standards later.

Samuel did include devolution to the states in his first of three tranches of reform – the first to start by early 2021. But his first tranche also includes important safeguards. These include the new national environmental standards, the Environment Assurance Commissioner, various statutory committees, Indigenous reforms and more.

The government’s proposed unbundling of the reforms doesn’t pass the pub test. It would tempt the states to take accreditation under the existing, discredited rules and resist later attempts to hold them to higher standards. In this, they’d be supported by developers who don’t like the prospect of a higher approvals bar.

A big year ahead

Samuel noted “governments should avoid the temptation to cherry pick from a highly interconnected suite of recommendations”. But this is exactly what the Morrison government is doing.

I hope the Senate will force the government to work through the full detail of the recommendations with stakeholders, as Ley says she’d like to.

But at this stage there’s little sign the government plans to embrace the reforms in full, or indeed that it has any vision for Australia’s environment.

All this plays out against still-raw memories of last summer’s bushfires, and expected pressure from the United States, under President Joe Biden, for developed economies such as Australia to lift their climate game.

With the United Nations climate change conference in Glasgow in November, it seems certain the environment will be high on Australia’s national agenda in 2021.

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

Image by pen_ash from Pixabay

Red lines for green values

What ‘standards’ are we prepared to accept in an overhaul of Australia’s national environment protection laws?

By Peter Burnett

When Professor Graeme Samuel’s Independent Review of the Environmental Protection and Biodiversity Conservation Act (EPBC Act) is tabled, which must occur by early February, we can expect to see recommendations for a complete overhaul of Australia’s national environment protection laws.

In an interim report in July, Samuel declared the EPBC Act to be a failure. Auditor-General Grant Hehir reached similar conclusions in his contemporaneous review of federal environmental approval processes under the same Act.

Despite having received the Samuel Review on 30 October, the Government continued to press a bill it had introduced in August to ‘streamline’ environmental approvals by devolving approval powers to the States in advance of the Review.

Professor Samuel had supported devolution in his interim report in July, but only in the context of a full reform package built on a foundation of his proposed National Environmental Standards.

A Senate Inquiry into the streamlining bill prompted key crossbench Senators to oppose it, not because they were necessarily opposed to devolution but because the government refused to provide them with the Samuel Review and other key supporting documents.

At the last moment, environment minister Sussan Ley provided the Inquiry, and thus all of us, with a copy of the draft Standards from the Samuel Report.

The draft Standards are the key to national environmental reform and thus worth a closer look, even without the benefit of the full Samuel Report.

Why set standards?

The standards deal with the so-called ‘matters of national environmental significance’ that are protected by the EPBC Act. Some of these like World Heritage and threatened species are well known. Others, such as internationally significant ‘Ramsar’ wetlands, are not.

Despite being confined to the Commonwealth’s responsibilities, the standards address the bulk of Australia’s most significant natural environmental and heritage values (other than climate), and have implications for the rest.

A key problem with many environment protection laws, including the EPBC Act, is that they require decision makers to follow due process and to consider various policies and principles (in Australia, often built around the concept of ‘ecologically sustainable development’) but without setting a bottom line based on maintaining essential environmental values and functions.

This enables a culture in which decision-makers can, and often do, pay lip service to the environment while approving its ongoing decline. Sometimes this lip service is paid by burdening industry with numerous ‘strict conditions’, thus delivering a ‘lose-lose’ outcome.

National Environmental Standards could change all that. Their key purpose is to set minimum environmental outcomes, including for decisions devolved to states.

A good set of environmental standards will identify our most important environment and heritage values and define the level of environmental function needed to maintain those values over time. The effect of standards is to place off-limits any deliberate degrading of these values and functions. One result is that significant or irreversible environmental loss cannot be traded for an economic or social gain, no matter how large, except possibly in national emergencies.

The Samuel Standards

Professor Samuel delivered a set of 10 national environmental standards, one overarching and one for each of nine matters of national environmental significance. The Standards would be relevant to activities and decisions at all scales but their most obvious application would be in assessing development proposals.

Apart from being innovative in themselves, the standards introduce policy concepts such as a ‘principle of non-regression’ and the ‘ecological feasibility’ of biodiversity offsets.

They also give new recognition to some not-so-new concepts such as the need to consider the impacts of development proposals on a cumulative basis. This would address a long-standing concern of environmentalists that individual developments chip away at environmental values, a process known colloquially as ‘the death of a thousand cuts’.

Addressing cumulative impacts implies there should be a bottom line for each species and ecosystem. To take a current example, it implies that government should determine a minimum viable habitat and population for koalas, probably for each population region. As this threshold of viability was approached, development approvals with koala impacts would become increasingly difficult and ultimately impossible to obtain. (The corollary is that if the threshold has been crossed, investment in recovery and restoration is an imperitive).

The standards are certainly not perfect. In discussions within a consultative group of which I was a member, Professor Samuel made clear his dislike for ‘weasel words’, a dislike that I share.

Unfortunately, the standards retain too many of these undesirable creatures. Some, such as ‘promote’ and ‘not inconsistent with’ come from the existing Act, while others such as ‘all reasonable efforts’ are new.

There is much to welcome and discuss in these standards, but I would start with an edit. This would be for policy clarity, not drafting elegance.

Red lines for a green solution?

The standards present the Government with a conundrum. On the one hand, with the EPBC Act declared a failure and the environment in ongoing and increasingly obvious decline, the case for reform is overwhelming and the potential of the standards as a foundation for action is great.

On the other hand, implementing standards would require a major and costly upgrade of our regulatory infrastructure, starting with what Samuel has described as a ‘quantum shift’ in the availability of environmental information.

Setting standards would also amount to drawing red lines for nature. As the Brexit negotiations most-recently illustrate, red lines can attract a world of political pain.

Image by Shell brown from Pixabay