By Peter Burnett
My recent blogs have argued that there are five transformations implicit in Professor Graeme Samuels review of national environmental law, to which the Albanese government is about to respond.* The first transformation was to be driven by environmental outcomes rather than processes, while the second was to take Indigenous knowledge and values seriously.
Today I write about the third transformation, which is to simplify the processes of environmental regulation and harmonise regulatory outcomes between federal and state systems.
No more picking cherries
Proposals for regulatory streamlining, and for the alignment of federal and state environmental assessment laws, have been floated at various times over the last 30 years. Yet this goal remains elusive. Most recently, the Morrison government tried to pass streamlining amendments to the EPBC Act, but failed in the Senate.
The problem with the former Prime Minister’s proposals was that he picked the cherries (as he would have seen them) from the reforms proposed by Professor Samuel and pushed the other reforms out into the never-never. One of the messages from the (previous) Senate was that a majority of Senators wanted action that was comprehensive, not piecemeal.
Morrison’s reforms were dressed up as streamlining; however, they were better described as a devolution of responsibility from the Commonwealth to the states. Vacating the field is not a solution to duplication (at least, not here).
To my observation, the former Prime Minister didn’t have an environmental bone in his body. I’m convinced that he wanted to achieve ‘single touch’ approvals by simply extracting the Federal government from environmental decision-making as far as possible, rather than by negotiating a genuine compatability of different systems.
Officially, maintenance of environmental standards was part of the deal. In practice, it was a hollow promise: Morrison’s initial set of draft ‘standards’ were just a collection of process-based words taken from the existing law. They would have guaranteed nothing in terms of outcomes.
Easy as 1, 2, 3 …
In contrast, Graeme Samuel recommended a harmonising of both environmental processes and outcomes between federal and state jurisdictions. This is a much more ambitious proposal, although it’s easy enough to summarise.
In effect, Samuel wants to transform not just federal environmental regulation, but state regulation as well. His template is easy as 1, 2, 3:
- Develop national standards for ecologically sustainable outcomes and give these standards shape locally through regional environmental plans
- Build a leading edge, risk-based decision-making system, including comprehensive environmental information, extensive policy guidance, streamlined processes and strong quality control
- Accredit states to take most of the decisions, which should be easy because everyone will be singing from the same song-sheet!
But in practice …
Step 2 is perhaps the easiest of a difficult bunch. With enough time and money, information systems can be built, processes automated, helpful policy guidance prepared, and so on. All this would speed up decision-making but alone it doesn’t remove duplication or guarantee improved environmental outcomes.
It’s the harmonised standards that holds the most potential. If the standards were sufficiently high to stop environmental decline and the environmental planning processes met the standards, the feds really could accredit the states and then drop back to a ‘trust but verify’ brief.
The major challenge lies with securing the necessary genuine federal-state partnership to deliver on this ambition. The underlying problem is that, constitutionally, Federal and state environmental responsibilities overlap and, with the possible exception of the Morrison proposals above, neither side wants to play second fiddle to the other.
At first glance, the states are responsible for managing the major components of the environment — land, water and air.
However, environmental problems have been recognised increasingly over the last 50 years as ubiquitous and broad-scale — often national, sometimes global. As the pioneering ecologist Barry Commoner put it in the 1970s, ‘everything’s connected to everything else.’
Federal responsibilities for international matters, along with the federal government’s ability to use non-environmental powers such as its power to regulate corporations, have enabled the Commonwealth to deal with concerns such as the extinction of species, by overlaying State land-management responsibilities with internationally- and nationally-driven policy imperatives.
In response, the states have pushed back against what they see as creeping federal control, and continue to do so.
Another problem is that although Samuel’s proposed national standards are, on their face, for federally-protected matters only, if the states were to sign up to them to secure federal accreditation, it would be hard for them to apply lower standards to the rest of the environment.
To adapt Alfred Deakin’s famous 1902 prophecy about Commonwealth dominance in fiscal matters, the states could find themselves, ‘legally free but environmentally bound to the chariot wheels of the central government’.
Hardly a recipe for success, is it?
Yet I think Samuel’s policy prescriptions are the right ones. The threats posed by environmental degradation operate at landscape, if not global, scale and are, ultimately, existential, as is becoming increasingly obvious as more and more ordinary Australians feel the impacts of extraordinary natural disasters.
And the solution is …
We simply have to find a way to unravel this impossibly-intricate Gordian knot of a problem. These problems are wicked enough without adding inconsistent and even conflicting regulation to the mix.
Tradition has it that Alexander the Great solved the problem by drawing his sword and cutting the knot. Might Tanya Plibersek turn out to be a modern Alexander?
Stay tuned for my own Alexander-like solution in a forthcoming blog.
* Independent Review of the Environment Protection and Biodiversity Conservation (EPBC) Act, 2020.
Banner image: So much complexity, so much variation in the manner in which the federal government and state governments regulate the environment. What would it take to wipe the slate clean and start afresh? (Image by David Salt)