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 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