The choir – lobbyists and powerbrokers

Who is singing and who is listening in the biggest environmental game in town?

By David Salt

The biggest environmental policy game in town at the moment is the review of the EPBC Act. That’s because the outcome of this review will have a major bearing on how governments deal with the perennial tension between economic development and environmental protection. It could influence how our nation looks after our environmental values for years, maybe decades, to come. It is a big deal.

Last week the government belatedly released the draft report of the review (led by Professor Graeme Samuel). This draft pointed out the EPBC Act was failing on multiple fronts. It was failing to protect the environment and it was too slow in processing development approvals. It proposed a range of reforms (and these have been discussed at length by many).

I’m always fascinated by what lobby groups say when reviews such as this are released. Their public statements come out so fast on the heels of the release I really wonder if they have even read the document (or even its executive summary). Reading their statements it quickly becomes apparent that most of their words are simple rehashes of their lobby platforms – what they want the public to think about them, and what they want the government to do in respect of the stakeholders they represent.

Let’s look at a few of those statements

Political statements

First up, there’s the draft review itself. It’s released by the Department of Agriculture and Environment (DAWE), the Department that oversees the EPBC Act (we’re already getting a signal even in the Department’s title on the priority given to the environment). The media statement provides a fairly good summary of the draft review with a link to the review itself.

Central to Samuel’s review is the belief that a set of National Environment Standards need to be developed, duplication between state and federal levels needs to be reduced and that an enforcement regulator needs to be established. On this final point, he said: “Community trust in the EPBC Act and its administration is low. To build confidence, the Interim Report proposes that an independent cop on the beat is required to deliver rigorous, transparent compliance and enforcement.”

Following simultaneously on this release comes the statement from the Government which thanks Professor Samuel for delivering the report, agrees we must end duplication and instantly squashes any idea that an ‘independent cop’ will be brought in. The government will not “support additional layers of bureaucracy such as the establishment of an independent regulator.” (It should be noted that when Labor was in government when the EPBC Act was last reviewed in 2009 that it similarly rejected the proposal for a ‘greenhouse trigger’ because it added layers of bureaucracy to the Act.)

The opposition party then follows with a statement saying it’s all the government’s fault: “In considering the Samuel Review Interim Report, it’s important to understand that Australia’s biggest problem in environmental management has been blue tape: delays and poor decision-making caused by Liberal and National cuts and mismanagement.”

Predictably, the Greens are also blaming the government for everything that’s wrong, and bitterly disappointed in their flat rejection of a regulator: “Environmental standards will be worthless if there is no one there to enforce them. This report shows the government can’t be trusted.”

Business statements

The Business Council of Australia was complimentary in its appraisal of the review: “What has been achieved in this review is a way forward that increases accountability, increases the transparency of decision making and retains the central goal of protecting the environment.” Pity the government’s already killed the prime mechanism for enhanced accountability.

The Minerals Council of Australia sees it as a greenlight for development: “Faster approvals, greater national cooperation and clearer guidelines on environmental management will boost jobs and investment and improve biodiversity outcomes.” They’re delighted by the government’s commitment to develop a ‘single touch’ approach to assessment: “The interim report highlights the need to address unnecessary regulatory complexity and duplication – including overlapping state and federal processes which deter investment.”

The Association of Mining and Exploration Companies and the Australian Petroleum Production and Exploration Association pretty much parrot the Minerals Council’s thoughts. Less duplication and faster approvals are essential; though they don’t have much to say about improved environmental outcomes beyond suggesting they think they are important too.

But it’s not just the miners who see gold in the report, the farmers see carrots. The National Farmers Federation said: ““For too long the regulatory stick has been preferred, despite biodiversity outcomes actually declining. The solution is in a market-based approach rather than a stronger stick. It is time for some carrots.” I think the NFF are also not a fan of the ‘independent cop’ idea.

The foresters are also keen to support the report’s call for greater clarity, in their case clarity between the EPBC Act the Regional Forestry Agreement process. The Australian Forestry Products Association said: “This is our chance to ensure the right protection for our environment while also unlocking job-creating projects to strengthen our economy and improve the livelihoods of every-day Australians.”

Environmental sector statements

So business interests everywhere are in furious concord, the review is good if it reduces transaction costs around environmental protection. What are environmental NGOs saying? They are somewhat worried.

The Australian Conservation Foundation said: “the Federal Government would be lining up Australian wildlife for extinction if it rushes to devolve environmental approval powers to states”.

The Wilderness Society is also concerned by an apparent devolution to the states. It said: “Professor Samuel’s report outlines that environment laws are rarely policed, that endangered species recovery plans are rarely implemented, that Australia’s most important environmental values are in decline and yet the central Government response is to seek to hand environmental approval powers to the states with no concrete proposals to address any of the main environmental challenges facing Australia.”

The Invasive Species Council’s response was that it welcomed what it said was a “less reactive, more comprehensive response to Australia’s growing biodiversity crisis”. It supported the call for ‘strategic national plans’ and ‘regional plans’ but was “greatly disappointed that the Environment Minister today ruled out Samuel’s proposal for an ‘independent monitoring, compliance, enforcement and assurance regulator’.”

The choir

These were just the statements I saw in response to the release of the draft review of the EPBC Act. I’m sure there were many more but they give you a good flavour of the push and shove following such an announcement.

Most people never see these statements beyond, maybe, a quote here and there used in news stories, normally to add a bit of colour to the otherwise drier reportage. However, these statements are always coming out from the different lobby groups whenever the government makes a statement on anything, the story being reported here is just one from the environment sector.

These statements telegraph to the government what different stakeholder groups are expecting from our political leaders. You’ll often see lobby groups repeating phrases used by the government (like ‘single touch’ approval processes) giving them credence and solidity. Sometimes it’s the other way around; the government will pick up on phrases coined by a lobby group.

And, of course, this is just the visible signs of the lobbying process. There’s a whole industry based on cultivating influence of the government and most of it happens behind closed doors and is unseen by the public.

Having worked for many years in science communication connected with biodiversity conservation I’ve seen this game of duelling public statements many times. It amazes me the seeming co-ordination with which it happens, with each side singing to their own constituency and maybe pulling the strings behind some of the important decisions.

In this current situation relating to the EPBC Act, the industry groups seem to be at one with the government’s message of shorter approval times, less regulation and less bureaucracy. This is only an interim report but it provides a clear idea of what the final report will contain, and we also have a good idea which bits the government will act on (and which bits it will reject).

Missed the boat

The review is currently calling for public feedback on the interim report. But you’ll have to be quick. Having been given the report by Graeme Samuels last month but only releasing it last week, the government will only accept feedback till 17 August. The final report is due in October.

Though, even if you respond through the official channels, it could be you’ve already missed the boat. It seems the Government is not waiting for the final report and have promised legislation in late August. The Prime Minister’s statement from the most recent National Cabinet yesterday said the Premiers were all on board and keen to sign up to ‘single touch’ asap (why wouldn’t they)?

It is quite clear which choir the Government is listening to.

Image by stanbalik from Pixabay

Environmental regulation and the Productivity Commission

Is ‘efficiency’ the sole solution to the challenge of ‘sustainability’?

By Peter Burnett

Last week the Australian Government announced a new inquiry by the Productivity Commission (PC) into regulation of the resources sector. While not confined to environmental regulation, in announcing the review Treasurer Josh Frydenberg made specific reference to improving the efficiency of environmental approvals to reduce the ‘regulatory burden’ on business. Frydenberg also said that the review would complement the forthcoming statutory review of national environmental protection law, the Environment Protection and Biodiversity Conservation Act. (For more on this review, see my recent blog).

In his media release, Frydenberg repeated the mantra of recent governments: that the aim was to ensure that projects were assessed efficiently while ‘upholding robust environmental standards’. This largely reflects the terms of reference of the PC inquiry, which talk of removing unnecessary costs while ‘ensuring robust protections for the environment are maintained’.

The week before the inquiry was announced, the new chair of the Minerals Council of Australia, Helen Coonan (a former Howard Government minister), identified efficient regulation as one of her top priorities. She claimed that if project approvals were sped up by one year, this would release some $160 billion and 69,000 jobs to the economy. I’m not sure where this figure came from, but it may have been based on a PC inquiry into the upstream oil and gas industry in 2009, which estimated that expediting the regulatory approval process for a major project by one year could increase its net present value by up to 18%. In any event, that’s a juicy target for efficiency savings.

The PC’s role on sustainability

On its website, the PC advertises itself as ‘providing independent research and advice to Government on economic, social and environmental issues affecting the welfare of Australians’. That’s not bad for a slogan but the substance is a little more complicated.

Under the Productivity Commission Act 1998 the substantive functions of the PC are all cast in terms of industry development and productivity. And the PC’s statutory policy guidelines, to which it must have regard, are dominated by considerations of improving economic performance through higher productivity; reducing regulation and increasing efficiency.

The statutory guidelines do, however, include considerations relevant to sustainability. Beyond a direct reference to the need ‘to ensure that industry develops in a way that is ecologically sustainable’, there are also references to other things connected to sustainability such as regional development; avoiding hardship from structural change; and meeting Australia’s international obligations. Further, one of the Commissioners must be experienced in sustainability and conservation while another must be experienced in social issues.

So, while the PC is definitely about efficiency and growth, it doesn’t have a one-track mind. Environmental and social impacts are definitely members of the cast, though in supporting roles. As we’ll see below, the problem doesn’t seem to be the PC but what the government does or doesn’t do with its recommendations.

We’ve been here before

Industry keeps complaining about inefficiency and duplication in environmental regulation, and governments keep returning to this theme, often through references to the PC. In recent years, in addition to sector-specific reports on regulation (including environmental regulation) of transport, agriculture, fisheries, water, upstream oil and gas, and mineral exploration, the PC has produced general reports on native vegetation and biodiversity regulation (2004); planning, zoning and development assessment (2011); COAG’s regulatory reform agenda including environmental regulation (2012); and major project assessment (2013).

This is in addition to the statutory review of the EPBC Act itself by Allan Hawke in 2009, which also included significant recommendations for regulatory streamlining.

The PC has also conducted other relevant review activities, such as convening a roundtable on Promoting Better Environmental Outcomes (2009).

And it looks like we’ll do it again

The terms of reference for this latest review focus on identifying practices for project approval that have led to streamlining the process without compromising environmental standards. This is rather unimaginative and I think will simply lead the PC back to places it has already gone, such as recommending increased use of regional plans and other landscape scale approaches; increased regulatory guidance; and a single national threatened species list.

In response to past recommendations, governments have done some of all these things. For example, there is a process underway to adopt a common assessment method for threatened species listings.

But governments don’t seem to tackle the issues in a fulsome and vigorous way, to deal with them once and for all. In fact, they attempt to walk on both sides of the street, pursuing reforms in an incremental way while simultaneously cutting environment department budgets. On this basis, one must even question their appetite for reform.

So much at stake

So is environmental regulation just a convenient whipping boy? There’s so much at stake that I don’t think so. Perhaps governments are wedged between their own policies and the politics: they don’t want to increase spending and can’t be seen to water down existing standards, yet remain frustrated by the processes that those standards bring with them.

If governments want real improvements to regulatory efficiency, without simply winding environmental laws back, they have to front-load the regulatory process with information and guidance and resources, ie with things that the PC and others have already recommended. These boil down pretty much to landscape-scale approaches such as regional planning (done comprehensively) supported by increased levels of regulatory service, including detailed guidance on what will and won’t be approved.

It’s not rocket science, but it will take serious money. But keep in mind that such an investment would lead to saving even more serious money.

And there’s an incidental benefit in such an approach. Proper environmental information and planning will also improve the quality of decision-making, which should improve environmental outcomes.

Image: Image by Gerd Altmann from Pixabay