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

A tale of two climate bills

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One is about meaningful reform, the other more about politics

By Peter Burnett

Last month, Zali Stegall released her long-anticipated climate change bill. This month, the Australian Greens released a climate bill of their own. They are quite different pieces of legislation. One is quite solid, I think, while the other is more about politics than meaningful outcomes.

Zali Stegall, of course, is the Independent MP for Warringah. She stood against Tony Abbott, one of Australia’s leading climate change deniers (and former PM), on a platform of introducing meaningful climate change policy; and she won. Her bill has been under development since her election in May 2019. Against the backdrop of Australia’s horror summer, and the resulting rocketing of the environment to the top of the political agenda, it could not have been better timed.

The Greens’ climate bill, on the other hand, looks to me like it might have been drafted in a hurry, for reasons I will explain below.

Given the contrasting approaches of the two bills and the possibility that a Parliamentary committee might end up looking at both, it’s instructive to consider what they contain.

The Stegall Bill

The full title of Stegall’s bill is Climate Change (National Framework for Adaptation and Mitigation) Bill 2020. As the title suggests, the bill establishes a framework for climate policy leaving it up to the government to develop climate mitigation programs that meet the targets set by the framework.

The bill would legislate a target of net zero emissions by 2050 and establish an independent Climate Change Commission, tasked with preparing a national National Climate Risk Assessment every five years. In response, the Government must prepare a national adaptation plan, together with five-year national emissions budgets and emissions reduction plans to meet those budgets.

Space doesn’t allow a more detailed examination, but you get the drift: the Bill sets the overarching target, while the independent Commission looks after the framework and keeps an eye on the Government. The Government’s job is to develop and implement detailed plans to meet the targets. If both parties do their job properly, national emissions follow a trajectory down to net zero 2050 while inflicting the least possible pain.

The Greens’ Bill

By contrast, the Greens’ bill has a much narrower focus. It’s full title is the Environment Protection and Biodiversity Conservation Amendment (Climate Trigger) Bill 2020, and it seeks to amend parts of the Environment Protection and Biodiversity Conservation Act 1999 (EPBC Act) to introduce a climate ‘trigger’ for ‘emissions-intensive actions’; specifically land clearing, drilling exploration and mining (with the capacity to add others later by regulation).

The EPBC Act has nine triggers, for example one for threatened species and one for large coal and gas projects affecting water resources. The basic idea is that if a trigger is, well, triggered, by a development proposal, the development can’t go ahead unless it has been the subject of an environmental impact assessment (EIA) and a decision by the environment minister as to whether the project can go ahead, and if so, on what conditions.

In short, the Greens’ bill extends existing environmental regulation to land clearing and mining projects in order to reduce their climate impacts.

Two bills compared

Stegall’s bill is impressive. Although she was able to draw heavily on overseas precedents, the bill is well drafted and specific to Australian law and circumstances. It is complete to every last detail, including administrative matters like pay-and-leave entitlements for the Commission’s CEO.

I know Stegall is a lawyer and probably had lots of free expert advice. Nevertheless, she’s a first term Independent MP, with no party colleagues or resources to draw on. Yet she has produced a bill that is just as good as one that might have been produced by the Government with the full resources of the public service.

The Greens bill on the other hand is disappointing. The Greens have been around for a long time and have a much greater depth of resources available to them. Yet the bill is narrow, doing little more than bringing two major categories of development into an existing regulatory net, one which leaves it almost entirely to the environment minister to decide what, if any, emissions-reducing conditions to impose.

Even within this narrow scope, the bill doesn’t seem to have been well thought through.

A mining or land clearing project will only trigger an EIA if its emissions would likely have a ‘significant impact’ on the environment. Under the EPBC act, the environment is defined in wide terms. And ‘significant impact’ is not defined. Greenhouse gas emissions do not have a direct impact on living things; they have an indirect impact in that they change the climate and it is the changed climate which has an adverse impact on the animals and plants.

Finally, the Act doesn’t regulate cumulative emissions, which means that a decision about whether a project triggers the Act only considers the project in isolation.

When you take these factors together, it means that the emissions from a single project, such as a proposed mine, may not be ‘significant’ under the act unless they are so great as to change the climate, by themselves, something that would only occur with an enormous project.

As a result, I think there is a good argument that the Greens’ climate trigger would never operate.

The politics and the process from here

It’s important to emphasise that Stegall’s bill has not been introduced in parliament. Rather, Ms Stegall has simply released it by public announcement. A key reason for doing this is that the government controls the numbers in the House of Representatives, where Ms Stegall is a member. It is very unlikely that the Government will ever allow her to introduce the bill formally, because this would cause the government to lose control of the climate change debate (more than it already has).

Significantly, the bill is supported by Rebecca Sharkey of the Centre Alliance Party, which also has members in the Senate. One scenario is that, once it becomes clear that the Government will not allow the Stegall bill to be introduced in the House of Representatives, Centre Alliance may introduce it in the Senate, which the Government does not control.

Once introduced, a bill can be referred to committee, which provides a good platform for public hearings and a committee report to keep public debate on the boil.

This may be where the Greens bill comes in. Rather than have a first-time Independent MP steal their thunder, perhaps the Greens foresaw this scenario and want to have their own bill that can be referred to committee as well. This way they would not be left dancing to someone else’s tune.

Outside Parliament, the temperatures will be dropping as we head towards winter. Inside, it’s likely that the Stegall bill will warm up the Winter Sittings one way or another, whether under my scenario or another. If that’s the case, let’s hope the deliberations produce some light as well as heat.

Image by enriquelopezgarre from Pixabay

2020 hindsight – insights on government thinking from 20 years ago

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1998 and 1999 were important years for environmental policy in Australia

By Peter Burnett

As policy researcher, I love New Year’s Day. Not because it’s a public holiday but because it’s when the National Archives of Australia release government records, including Cabinet papers, from several decades earlier. Documents used to be released after 30 years but, under a Rudd Government reform, this is being reduced progressively to 20 years. And this is great for anyone seeking deeper insights into how policies are conceived and developed.

This year Archives released documents from 1998 and 1999. I’ve been looking at the Cabinet submissions and decisions from these two years to see what environmental issues were preoccupying the first and second Howard Cabinets (there was an election in 1998).

At least, I’ve been looking at the ones that are available. Even though there are only a few hundred cabinet documents prepared each year, and their annual release is of significant media interest, Archives actually only release the ones that their history adviser regards as newsworthy. Most of the others are available on application, but you have to wait, sometimes for many months, for these files to be ‘examined’, to decide whether they contain any exempt material, usually related to national security.

The need to apply for files and then wait for some months has limited what I can write about one of the major issues, as you’ll see below. Such are the frustrations of anyone seeking insight from the official records.

What were the issues in 1998–99?

The final years of last century were very important for environmental policy, nationally and around the world.

Internationally the Kyoto Protocol had been concluded at the end of the previous year, with Australia securing a special deal, sometimes called the Australia Clause. This allowed us to increase our emissions by 8% on 1990 levels in the coming decade, when other developed countries had committed to a 5% reduction.

We had based our case on the principle of ‘common but differentiated responsibilities’, a principle developed originally to accommodate the circumstances of developing countries. We argued that this should apply to us because of our population growth and fossil fuel-intensive economy. (Which, of course, has great relevance in current debates on whether Australia is pulling its weight on climate change.)

Domestically, the Government was busy rolling out the first tranche of spending under the Natural Heritage Trust, which had been funded through the partial sale of the national telecommunications utility, Telstra. It was also in the midst of reforming national environmental law, tabling the Environment Protection and Biodiversity Conservation (EPBC) Bill, later passed in 1999 as the EPBC Act (now up for its second decadal review).

While all this was important, top of the Government’s reform agenda was the introduction of a goods and services tax (GST). This reform would deliver unexpected, possibly even accidental, environmental benefits (as I discuss below).

Winning our emissions bargain

As you might expect in the immediate aftermath of the Kyoto climate meeting, the environmental issue taking most of Cabinet’s attention was whether to ratify the protocol, and its implications for domestic policy.

Having been worried in the lead up to Kyoto that Australia’s hard line might lead to diplomatic isolation, the Government could rest easy. Australia’s tough negotiating stance had been very successful and the three ministers with climate responsibilities were able to report that the Kyoto agreement had met all of Australia’s primary objectives. (I once heard that Environment Minister Robert Hill was applauded when he entered the Cabinet room on return from Kyoto.)

They advised Cabinet that the 108% target represented a cut to business-as-usual growth of 30%, which was ‘comparable to the average for industrialised countries as a whole’. Another important achievement was international agreement that emissions from land use change and forestry (now known as Land Use, Land Use Change and Forestry, or LULUCF) would be treated much the same as other anthropogenic emissions. This was important for Australia because much of our target would be obtained through a reduction in emissions from a reduction in land clearing.

Even though Kyoto was done, the climate change caravan kept on rolling. Australia also had to settle its position for the fourth Conference of the Parties to the Climate Change Convention (COP 4 – we’ve just had COP 25).

The interesting point in our position was that we decided to push for the widest possible and most flexible international emissions trading scheme. This did not come from any government convictions about the efficacy of emissions trading, but simply to keep our options open: the US had estimated that they might meet up to 75% of their emissions task by purchasing international permits, reducing compliance costs by something between 60 and 90%!

Domestically, Cabinet agreed to update the National Greenhouse Strategy (‘National’ indicating that the States were parties) in light of Kyoto, but without allocating extra money. This was because the Government had already announced a $180 million package in the lead-up to Kyoto.

But nothing on the EPBC Act

To my surprise, there was no Cabinet submission on the EPBC Bill. I find it hard to believe that Environment Minister Robert Hill got such a major reform through without a stand-alone Cabinet submission, but I double-checked and Archives does not list any submission related to this reform beyond an earlier authority to negotiate an EPBC precursor, what became the 1997 COAG Heads of Agreement on Roles and Responsibilities for the Environment. This was the document by which the States endorsed Hill’s set of ‘Matters of National Environmental Significance’.

So I’ve requested access to some related files to dig deeper. Watch this space: I’ll report what I find.

Show me the money

There were a number of submissions relating to environmental spending. Most are no longer interesting but there was one interesting money story.

In 1999 the Government persuaded the Australian Democrats to support the introduction of the Goods and Services Tax (GST) by funding a new environmental package, known as Measures for a Better Environment. This package included some significant reforms designed to reduce transport emissions and greenhouse gases.

Some reforms were vehicle-based, including incentives for buses and trucks to shift to CNG and LPG, while others were fuels- based, including a commitment to develop national fuel standards. There were also rebates for installing solar panels and increased support for the commercialisation of renewable energy.

I heard an interesting story recently that suggests that the strength of this package might have been fortuitous. Apparently Prime Minister John Howard asked Treasurer Peter Costello how much they should be prepared to spend on such initiatives. ‘About 400’ was the reply. Howard duly offered $400m. It seems Costello was thinking $400,000.

Could it be that this is how we get significant environmental reform? Through horse-trading or accident?

Image by Pexels from Pixabay

Announcing ‘Australia’s Strategy for Nature’

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The strategy you have when you have to have a strategy (without actually having one)

By Peter Burnett

In November 2019 Australia’s federal and state environment ministers signed off on a new national biodiversity strategy. Under the title Australia’s Strategy for Nature, it replaces the previous strategy, Australia’s Biodiversity Conservation Strategy 2010–2030 (the 2010 Strategy), even though the 2010 strategy had more than 10 years to run.

The new strategy comes with its own shiny new website, Australia’s Nature Hub, and it reads pretty well. But here’s the kicker: the new strategy doesn’t actually contain any strategies (ie means to achieving ends).

And there’s no new money or programs to support it, although the new website does serve as an aggregator for existing strategies and programs from various governments. As we’ll see below, the implication seems to be that if you think we need to do more to halt biodiversity decline, do it yourself!

It’s a ‘compliance model’

So what’s going on? If the new strategy were a car, it would be a ‘compliance model’, a car that manufacturers produce in limited numbers to comply with a regulatory requirement to sell ‘zero emission’ vehicles.

The best known example of a compliance car was the EV1, an electric car that General Motors produced in America in the late 1990s. Instead of selling the car to customers, GM leased it to them; once the leases expired it recalled the cars and sent them to the crusher.*

In this case, the requirement generating a compliance mentality is Article 6 of the Convention on Biological Diversity (CBD). Australia joined the CBD, along with most other countries, soon after it was opened for signature in 1992. Article 6 requires each member country to ‘develop national strategies … for the conservation and sustainable use of biological diversity’.

Australia’s history with biodiversity strategies

Australia had started work on a national biodiversity strategy even before the CBD was signed. In fact, in his 1989 Environment Statement, Our Country, Our Future, Prime Minister Hawke made commitments, not just to develop a national biodiversity strategy, but for Australia to play a leading role in what would become the CBD. In marketing terms, we weren’t just ‘early adopters’ in biodiversity policy, we were ‘innovators’.

As they say in the classics, it’s been all downhill from there. The strategy was ready in 1993 but languished when it proved difficult to get the states on board. It was eventually adopted by all Australian governments in 1995, under the title National Strategy for the Conservation of Australia’s Biological Diversity. It’s most significant measures were a national commitment to undertake bioregional planning and a target of arresting and reversing the decline of native vegetation by 2000. The strategy also had major flaws, setting the unfortunate precedent of being adopted without new resourcing, on the basis that many of its measures fell within the scope of existing programs.

There was a change of government federally soon after the strategy was adopted and incoming environment minister Robert Hill worked hard, but with limited success, to give it life. He included provisions for bioregional planning in Australia’s new national environmental law, the Environment Protection and Biodiversity Conservation Act 1999, but these have barely been used. Later, following a five year review of the strategy, he would develop ‘national objectives and targets’, including an objective of halting land clearing, and seek to incorporate these into bilateral agreements with states under the National Heritage Trust, a major funding program. Despite some success, state resistance was ultimately too great to deliver much of significance.

In 2009 another environment minister, Peter Garrett, succeeded in getting a new strategy (the 2010 strategy) endorsed, including 10 ambitious national targets for 2015. In their foreword to the 2010 strategy, ministers noted that despite much effort, biodiversity continued to decline and, as a result, ‘we need to take immediate and sustained action to conserve biodiversity.’

In fact, the problem was so serious that ‘business as usual is no longer an option’. Despite these strong words, most of the 2015 targets were not met (or could not be measured) and I suspect this was the real reason why environment ministers decided to replace the 2010 strategy early: to make the strong language and unmeasurable targets disappear.

A ‘zero emissions vehicle’ for the wrong reasons

Now governments are taking a new tack. Strong warnings and ambitious targets have been replaced by an exhortation that we all work together. The new strategy is sold as an ‘overarching framework’ and is said not only to ‘set the framework for local, state/territory and federal government actions’, but also to ‘help those outside government identify where they can contribute to support national areas of focus’.

I see this as code for ‘all care but no responsibility’: government will identify the problem and the point to both solutions and ways to measure progress, but without specifying any actual strategies in the document. As a result, if ‘those outside government’ (ie, you and me) want to halt the relentless decline of biodiversity it Australia, we will have to do it ourselves, as none of our governments have seen the need to announce any new measures to support this new ‘strategy’.

The only conclusion to be drawn is that Australia’s Nature Strategy has been produced only to comply with the CBD. It’s a ‘compliance model’ and if I were its owner I’d follow GM’s recipe by recalling it and sending it to the crusher. The difference is that I would be doing this, not because its success threatens business, but because its likely failure threatens business (and everything else that depends on biodiversity). This is a ‘zero emissions vehicle’, not because it is propelled by the latest technology, but because it only works if self-propelled. Fred Flintstone would feel right at home in it.

*Killing the electric car: if you’d like to know more about the EV1, it was the subject of a 2006 documentary, Who Killed the Electric Car?

Image by David Zapata from Pixabay

Federal environmental planning: the broken leg of the stool

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

By Peter Burnett

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

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

One leg is half-missing

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

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

Dated plans

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

Underdone plans

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

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

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

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

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

Missing plans

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

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

It’s the politics stupid

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

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

The bottom line

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

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

Who wants a stool with two and half legs?

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

What’s in the EPBC Box?

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Unpackaging Australia’s national environmental law

By Peter Burnett

I’ve decided to pull apart Australia’s national environmental law, the Environment Protection and Biodiversity Act 1999 (EPBC Act). I want to see what makes it tick and, perhaps more significantly, to see if I can explain what makes it tick.

I’m not doing this for fun; there are two major reviews coming up that will delve into this important law and I’d like to have my say in these reviews. If I’m going to have my say, I’ll have to go beyond just knowing what I’m talking about. I have to be able to communicate my understanding to support my point of view.

This is no easy task. A colleague of mine, with extensive experience in public policy but not environmental policy, recently tried to read the EPBC Act. He told me, with considerable frustration, that he found it virtually impenetrable.

I can also draw on personal experience. I recently gave a guest lecture about the Act as part of an environmental law course (the course was for non-lawyers). The blank looks I got from the students, and the absence of questions, challenged me to try a new approach to explaining what this important piece of legislation does.

The two upcoming reviews of the EPBC Act could have significant consequences for environmental law in Australia. The first is being carried out by the Productivity Commission and examines regulation of the resources sector. This review has just started and I discussed it in an earlier blog.

The second review examines the operation of the entire EPBC Act, something that the law requires every 10 years. This review is due to be announced in October.

Only for the ardent

The EPBC Act is around a thousand pages long! And that’s just the Act itself. This doesn’t include supporting regulations and guidelines. There are reasons for this length (and complexity).

Because of the peculiarities of Australian constitutional law, parts of the Act use arcane legal language to attach themselves to certain constitutional hooks.

The Act is also repetitive, because it applies similar processes to different things. The alternative would be to draft master provisions and apply them in multiple places through frequent cross-references. I’ve heard drafters argue that repetition makes the law easier to read but I’m not entirely convinced – what the Act gains in readability through repetition may be lost in the added length.

All in all, reading the Act is only for the ardent.

So, with the blank looks of the students still fresh in my memory, I decided to draw some pictures of it. I’d seen some well-drawn flow charts of some of the Act’s regulatory processes and thought I could do something similar, with a broad readership in mind.

I started with the idea of reverse-engineering a piece of equipment, say an espresso machine: first identify the major components, such as reservoir, boiler and coffee grinder, further dismantling each as necessary to see what it does. Then assemble the machine and observe how the components complement each other to produce a finished product.

So what’s in the box?

It turns out that the Act has 16 major components, at least as I’ve counted them (and leaving out ‘ancillary equipment’ such as compliance powers).

You can see these in my diagram below (Figure 1). The parts fall into three streams, indicating that the Act has three broad functions.

Figure 1: The main components of the EPBC Act (omitting supporting provisions such as compliance powers)

The first stream is about identifying various environmental values for protection. This mostly covers threatened species and special places. Once these values are identified, usually through a formal listing process, they are ‘protected’ by the Act. This means it becomes an offence to do something likely to harm them significantly, unless one obtains permission to do so (see stream three).

Because this is a national law, the values protected are predominantly things of high significance, such as World Heritage places or nationally-threatened species. Hence the term for many of them is ‘matters of national environmental significance’ (or MNES).

Apart from MNES, some values are there because they fall into categories that are protected by federal law alone. For example, marine species are included because the jurisdiction of the Australian states ends three nautical miles from the coast, while our Exclusive Economic Zone goes out 200 nautical miles.

The second stream is about planning for conservation. The Act doesn’t just cover planning connected to MNES and Commonwealth areas. It also provides for bioregional plans across the continent and its territorial sea, although with the major qualifier that for a region within a state (ie most of terrestrial Australia), the plans can only be done in cooperation with that state.

So far, there haven’t been any bioregional plans done with states, something I’ll discuss in another blog.

The third stream is about assessing and approving things that might harm the environmental values protected by the Act, or in the case of trade, the environment generally. The best known component in the third stream is project-based environmental impact assessment, but there is also provision for strategic environmental assessment of development.

This stream also covers assessment and approval of trade in species, whether these be endangered species under the Convention on International Trade in Endangered Species (CITES), native species for export or exotics for import.

Putting the parts together

Despite the complexity of the Act, its components do seem to fit relatively comfortably into these three broad streams. These are based on the protection and conservation of many of Australia’s most important environmental values, plus the power to assess and, if appropriate, approve (usually subject to conditions) developments that might harm what is protected and conserved.

In the broad this seems like a reasonable approach to looking after the environment while allowing for development. However, as I’ll explain in future blogs, there’s devil in the detail. In its current form, the framework does not realise its potential.

Review of ‘green tape’ for farmers throws up old conundrums – but also contains one gem

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By Peter Burnett and Philip Gibbons

Wendy Craik’s review of the impact of national environmental law on farmers (Craik Review) was released quietly late last week by new federal environment minister Sussan Ley, nine months after it was received by her predecessor, Melissa Price. (That law, of course, is the Environmental Protection and Biodiversity Conservation Act 1999, or EPBC Act. It’s up for review later this year and for many years farmers have been complaining it places an unfair burden on their agricultural activities.)

Craik is a former Executive Director of the National Farmers’ Federation (NFF) and former head of the Great Barrier Reef Marine Park Authority. She is well respected by government, the farm and conservation sectors.

Useful but mostly problematic

Craik has handed over a good report. The review has produced some useful proposals, including ways to improve environmental information and to align existing research with regulatory objectives.

It does however throw up some old conundrums for government. Maybe this is why its release was delayed till after the election, and then done with little fanfare.

The review recommends keeping farmers informed about what they can and can’t do on their land by investing in environment department services and systems, yet Coalition governments have cut federal environmental resources by 40% in six years (ACF 2019). You can’t make an omelette without breaking eggs.

It also prescribes a new $1 billion National Biodiversity Conservation Trust as a remedy for biodiversity decline, an amount exceeding existing funding under the National Landcare Program. Same problem, a good proposal but requiring considerable additional resourcing.

Craik also made a number of recommendations, including nationally-aligned policies and encouraging environmental markets, that would require genuine and ongoing federal-state collaboration on policy, something that has mostly eluded federal and state governments over nearly 50 years of trying.

The conundrums are not confined to the recommendations.

The review found that only 2.7% of the 6000 referrals considered under the EPBC Act have been for agriculture.

This is a striking statistic given nearly 90% of all land clearing in Australia is for agriculture, suggesting that the EPBC Act is significantly under-applied and (from the government’s perspective) an indigestible outcome from a review originating in farmer complaints of regulatory burden.

Ley’s brief media release implies that she will defer responding until completion of a much larger review, the forthcoming second 10-year statutory review of the EPBC Act.

It is little wonder Ley is kicking the can down the road, a decision no doubt aided by current controversy concerning Minister Angus Taylor’s involvement in some of the events behind the review (Guardian 2019).

A gem of an opportunity

There is one recommendation however that presents a gem of an opportunity for immediate action.

One of the triggers for the review was complaints by farmers in the Monaro region of southern NSW about the combined effect of federal and state laws affecting the management of native grasslands on their properties (farmonline 2017).

The review prompted a ‘well-resourced’ offer from NSW that federal and state officials work together on two pilot studies, one in the Monaro, to identify what biodiversity needs protecting under both federal and state law and how to achieve this.

Craik supported the idea, proposing the production of non-statutory regional plans under an independent chair.

The NSW offer is significant. The traditional approach of the states towards federal environmental regulation has been to resist and contain, especially in regard to on-ground management, which the states have seen as their exclusive role and a major bulwark against federal jurisdiction creep.

Previous attempts at regulatory collaboration, such as the ‘one-stop-shop’ for development approvals, have focused on regulatory change negotiated between officials rather than on-ground management and service-delivery, and have been conducted in an atmosphere that was at least lacking in trust, if not adversarial.

A genuine attempt to work together on the ground, along with local stakeholders and twin aims of protecting what is ecologically significant while also making life easier for farmers and other businesses, has much better prospects of building the trust necessary for effective regulation. It would also be a valuable investment in social capital.

Cynics may regard the prospects of successful on-ground collaboration as limited. The problem is, we have tried most of the other options with limited success, especially over time.

The environment continues to decline, dramatically according to the latest UN report. The opportunity to trial collaborative regional planning is too good to leave in the in-tray.

All the way with EIA

There’s still value in persisting with Environmental Impact Assessment

By Peter Burnett

For more than a decade I’ve been working and researching in the field of Environmental Impact Assessment (EIA). I keep telling myself to move on, that my priorities lie in overarching environmental policy frameworks and that EIA is just one decision-support tool (admittedly one that is very popular), best adapted for dealing with local issues. But I can’t stay away from EIA. Is there new life for this old tool?

Why can’t I stay away from EIA?

It’s partly a ‘boys-and-their-toys’ thing. I’m a lawyer by training and EIA has developed from a simple idea of gathering all the relevant environmental information for decision-making into a complex nested set of processes that can take up hundreds of legislative pages. It’s even more complicated in Australia’s federal system, which has EIA at national and state levels. I admire the sophistication of the EIA process as it has evolved and enjoy nutting out how this complicated system applies to any particular development project.

It’s partly an ‘in-the-club’ thing. Having been responsible for administering EIA under Australia’s national environmental law, the Environment Protection and Biodiversity Conservation Act 1999 (EPBC Act) and having been accepted by peers as having some knowledge and expertise, I found myself reluctant to let this ‘club membership’ expire when I changed status from senior public servant to PhD candidate in 2013. So I found a way to make EIA one of my case studies in a thesis that was focused on high level policy relating to sustainability.

But the strongest reason was my belief in the potential of this tool. My instinct was that even though EIA didn’t seem to be achieving its original aspirations of leading to decisions that would protect the environment, not just in particular cases but across the board, it still had potential to play a major role in doing so.

But I wasn’t quite sure why it didn’t seem to work or how it might be improved, beyond the consensus view to make more use of strategic approaches to EIA. This would avoid the ‘salami slicing’ or ‘death of a thousand cuts’ involved in project-based EIA decisions such as the approval of individual mines or housing divisions.

Regulating discretion

One of my research findings concerned the way in which discretionary decision-making works in our legal system. EIA decisions need to be at least partly discretionary to allow decision-makers to tailor approval conditions to a multitude of cases and circumstances. Yet if that discretion is to be exercised consistently, it must also be constrained.

The problem here stems from the way the legal system has evolved to regulate discretion. First there are general principles of administrative law, which are directed to making sure that decision-makers takes fair decisions based on all the relevant information, at the same time preventing them from straying off the reservation by taking irrelevant factors into account or doing someone else’s bidding. These general rules are usually supplemented in EIA by statutory directions to consider specific environmental factors, such as the principles of Ecologically Sustainable Development (ESD).

But in either case the courts treat these as rules of due process. Short of the rare instances in which a substantive decision has no apparent rational basis (or in special cases such as the NSW Land and Environment Court) they won’t go into the merits of the decision. They regard merits as the province of governments or their appointed statutory expert decision-makers.

So they won’t tell a decision-maker what to decide. Fair enough. But Parliament can tell the decision-maker what to decide, although this is harder than it seems.

Take the EPBC Act. At first blush, it seems to be steering decision-makers towards a goal of ESD. But on closer examination the Act uses qualified language, saying it wants to ‘promote’ ESD. Then it takes a reductionist approach and breaks (an undefined) ESD into five ‘principles of ESD’ which the decision-maker must simply ‘consider’.

We’re back to due process. If he or she chooses, the decision-maker can pay lip service to these ‘considerations’ and then take any decision at all, short of irrationality.

Even if the Act used the clearest of language to define ESD and direct decision-makers to achieve that goal in all their decisions, this is probably not enforceable, because in such a broad context the courts would regard the question of whether any given decision achieved ESD (or other clearly defined policy goal) was one of merits or expertise, not law.

Can we fix it?

My research conclusion was that there were only two ways to ensure that individual EIA-based decisions deliver environmental policy goals in an enforceable way. Both involve translating the policy goal into limits of acceptable action at any given place and narrowing the scope for discretion, and the two approaches are related.

The first is environmental planning. In an ideal world of environmental plans, if you want to build a mine, the relevant plan will tell you whether this is possible on an unrestricted basis, or on conditions; for example that there were offsets available for certain vegetation losses.

The second, a combination of specific decision rules plus comprehensive environmental information (which often needs to be geospatial, thus bearing some resemblance to planning) will achieve a similar result. If you want to build a mine and there is a rule against clearing critical habitat, the answer depends in part on whether the mine site is listed as critical habitat. And a decision to approve a mine in an area of critical habitat would be challengeable in court, because this is not an instance of discretion but the breach of a rule.

There would still be a role for EIA and discretion under both these approaches, but its task would be more oriented to the detailed conditions under which the proposal should proceed. Of course, these approaches would be expensive and, in our federal system, particularly complex.

They also shift decision-making away from pluralism and trade-offs towards a more constrained application of rules. This is uncomfortable territory for politicians, but a necessary evil if we are to make EIA an instrument of our high-level policy goals.

Sticking with EIA

So I found a way to satisfy my urge to stay involved with EIA, by connecting it to policy and information. To highlight that connection, consider this poetic metaphor inspired by John Masefield’s poem, Sea Fever. We need to shift our attention from the ‘tall ship’ of EIA to the entire voyage of environmental decision-making, which requires both a clear sense of destination (policy) and fulsome environmental information, ‘a star to steer her by’.

EIA is an important tool but unless we have a clear sense of where we want it to take us and ensure the necessary information is available to guide its application, then this venerable tool will not be delivering the environmental outcomes it was established for.

Image by MonikaP from Pixabay