Simplicity, harmony and the third transformation

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)

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.

Reforming national environmental law: first get rid of it, then fix it?

By Peter Burnett

While our country (and the world) has been gripped by the unravelling saga of the CoVID pandemic, our national government has been conducting a quiet plan to devolve most decision-making under our national environmental law, the Environment Protection and Biodiversity Conservation Act (EPBC Act), to the States, before a major review of the Act hit the deck.

I think this plan has now been derailed, though as I write, a couple of sitting days remain for cross-bench deal making in the Senate.

Some background

Regular readers will know that I often write about the EPBC Act. In part this is because I have worked with this law for a long time (both as a public servant and as a researcher) and have developed a strange kind of affection for its labyrinthine ways.

But I am also keenly interested in the performance of this legislation because its ups and downs are a reasonable proxy for the general health of Australian environmental policy. Unfortunately, the EPBC Act has been having a lot more downs than ups recently.

The Act has just undergone its second 10-year review by Professor Graeme Samuel AC. Professor Samuel was scathing in his Interim Report delivered in July. He found that the Act was ineffective and had lost the trust of business and environmentalists alike. An Auditor-General’s report tabled at the same time was equally scathing of the way the Act was being administered.

The key recommendation of Samuel’s Interim Report was that a revamped EPBC Act should be based on National Environmental Standards. These would actually set some bottom lines for environmental approvals and put an end to the current ‘tick-the-process-boxes-and-then-decide-anything-you-like’ approach.

The Government received Professor Samuel’s Final Report at the end of October 2020. The Government has yet to release it.

The ‘green tape’ narrative and ‘streamlining’ environmental decisions

In the meantime, and even after the Interim Report revealed the story of a failed law and ongoing environmental decline, the Government has maintained its single-track narrative of ‘cutting green tape’ and the need for ‘streamlining’ to increase regulatory efficiency.

In fact, the Government has long wanted to devolve Federal environmental approvals to the States and it would be fair to say that since it won the 2019 election it has been champing at the bit to make it happen.

Unfortunately for the Government, the mechanism built into the EPBC Act to allow this devolution cannot work without some mostly-minor legislative tweaks, requiring the support of a Senate it does not control.

The Government’s sense of urgency seems to have got the better of it, possibly because the Prime Minister tagged environmental devolution as one of the ingredients for a post-Covid economic recovery. Documents released under freedom of information reveal that back in February the Prime Minister’s position was that to avoid pre-empting the Samuel review, the legislative tweaks would need bipartisan support.

By August, when the ‘Streamlining Bill’ was introduced, this was no longer the Government’s position. Now, the narrative was that the Streamlining Bill, although a replica of a failed bill from back in 2014 (when Tony Abbott was in charge) and lacking any of the Samuel reforms including provision for National Environmental Standards, was in fact the first tranche of reform linked to the Samuel Review.

It was left to others to make the argument that the Streamlining Bill was pre-emptive and should not proceed ahead of Samuel’s Final Report.

Initially the Government was in a great hurry, to the point that it guillotined the vote in the House of Representatives and prevented independent MP Zali Steggall from introducing an amendment to provide for National Environmental Standards.

Still in a hurry, the Government successfully opposed two attempts to have the Bill considered by a Senate Committee. Eventually however it rolled over and supported a third motion to refer the bill to committee; presumably when it became clear that the Government would not have any chance or wooing the cross-bench without committee consideration.

Senate Inquiry

So the Senate Environment and Communications Committee established an Inquiry into the Bill. Normally these things take some months, but on this occasion the Inquiry was to report within several weeks, which meant that submissions had to be written quickly and a hearing conducted within days of submissions closing.

Was this part of a deal with the cross-bench, I wondered? Is there any point in dropping everything to dash off a submission? Putting my doubts aside I wrote a submission and was lucky enough to be invited to give evidence before this Committee.

Although I had often appeared before Senate Estimates Committees as a public servant, this was the first time in which I had appeared on my own behalf and was free to say pretty much anything I wanted.

I have to say I enjoyed the experience. It was good to be having my say and to be heard by members of our apex institution.

What’s more, the questions were relevant and informed. A colleague had recently been on the receiving end of some politically-loaded questions in another committee, but there were no such antics here.

The Committee reported quickly. At the end of the day the crucial cross-bench Senators accepted the argument that it was pre-emptive to be pushing this bill through ahead of Samuel’s Final Report.

So it looks like the Streamlining Bill will not pass before that report is tabled; this must occur before the end of February.

An unexpected revelation

Sometimes this kind of proceeding produces some unexpected revelations, which is one reason that governments don’t like them: such developments can derail a carefully constructed narrative.

On this occasion, officials revealed that in addition to the Streamlining Bill, the Government had drafted, but not tabled, a provision to provide for the making of National Environmental Standards by legislative instrument (ie, something similar to what Ms Zali Steggall MP had tried to do).

This is significant because by long-standing policy, set out in the Legislation Handbook, legislation is only drafted once the Government has approved the underlying policy. In other words, laws are only drafted for introduction. The system does not allow for drafting on a contingent or speculative basis, including by individual ministers.

The implication is that the Government has actually decided to support the idea of legislated National Environmental Standards. The fact that draft legislation for the standards has not been tabled suggests one of two things.

The first is that the government is breaking its own rules by drafting legislation on a contingent basis, presumably to introduce only if it couldn’t get its Streamlining Bill through. This would be an attempt to game the Senate and is a display of bad faith.

An alternative explanation is that there was some kind of rear-guard action within the Government, most likely a move from conservatives to block legislation for national standards that might constrain State development approvals under devolved arrangements.

Both explanations seem somewhat unikely but I favour the second, as a display of bad faith towards the Senate could cruel the pitch for other government proposals. If I am right, the cause of reforming biodiversity and heritage protections could be as fraught as that of climate policy reform.

Assuming the Streamlining Bill is dead, the next step is for the Government to table the Samuel Review. Hopefully this will trigger a wide-ranging debate on the environment, focused around a set of draft environmental standards and overwhelm the government’s one-track focus on ‘green tape’.

In my view we have never really had this debate and it would be good for us all to be confronted with the question, in the broad, of how much environment protection we want and whether we are prepared to pay for it.

But will the Government table an effective reform package to replace an Act which, all seem to agree, is a failure? Or, based on the climate policy precedent, should we expect a continued one-track focus on ‘green tape’ and ‘reforms’ that do little to address the policy failures that Professor Samuel and the Auditor General have identified?

Image by 3Dinaani from Pixabay

Trust us? Well let’s look at your record

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

By Peter Burnett

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

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

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

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

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

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

Trust us on the forests

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

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

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

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

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

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

Trust us on endangered possums

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

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

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

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

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

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

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

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

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

Trust us on restoration

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

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

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

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

So, who do ya trust?

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

The politics are just too hard.

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

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

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

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

Image by Pixabay

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

The bumblebee conspiracy

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

By Peter Burnett

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

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

Before I reveal the bumblebee, some background.

The buzz of ‘green tape’

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

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

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

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

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

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

Enter the bumblebee

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

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

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

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

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

Could a bumblebee buy a vote?

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

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

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

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

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

The shock of the bumblebee

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

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

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

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

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

Image by Nel Botha from Pixabay

Effective environmental reform: What are the prospects?

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

By Peter Burnett

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

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

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

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

The positives

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

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

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

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

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

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

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

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

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

Negatives

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

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

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

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

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

And on balance?

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

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

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

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

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

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

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

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

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

Image: Image by christels from Pixabay

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

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

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

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

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

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

‘Fundamental reform’ needed: Samuel

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

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

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

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

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

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

Streamlined approvals

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

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

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

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

I believe this timeframe is unwise, and wildly ambitious.

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

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

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

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

More haste, less speed

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

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

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

Image by MrsKirk72 from Pixabay

This story originally appeared in The Conversation.

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

And that conversation should include national goals and environmental measurement

By Peter Burnett

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

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

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

So it’s about time to start that conversation.

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

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

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

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

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

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

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

Earlier efforts at defining that national goal

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

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

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

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

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

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

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

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

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

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

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

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

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

You can’t manage what you can’t measure

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

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

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

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

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

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

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

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

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

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

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

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

The coming national conversation?

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

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

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

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

Image by Gerd Altmann from Pixabay

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

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?

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 16^th 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