Environmental Standards: are they really the treasure at the end of the rainbow?

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What would happen if we actually got decent environmental standards?

By Peter Burnett

After several months of turbulent debate over what will become of Australia’s Environmental Protection and Biodiversity Conservation Act, we are approaching the end zone of Professor Graeme Samuel’s review. ‘Environmental Standards’ look set to become part of environmental regulation in Australia and many people, including me, are wondering whether they will be good enough and, even if they are, how will it change things.

Professor Samuel’s Independent Review of the EPBC Act is due in a month. The Government has jumped the reform gun by introducing ‘streamlining’ amendments to the Act designed to enable ‘single touch’ environmental decisions by states, replacing the dual system of federal and state decisions that we have now.

Although pitched by federal environment minister Sussan Ley as ‘the first tranche of EPBC Act reforms linked to the independent statutory review of the Act’, [link: ] this Bill is no more than a rebadged version of the Abbott Government’s 2014 ‘one stop shop’ Bill that failed to pass the Senate. It doesn’t include any of the reforms identified by Professor Samuel in his Interim Report, such as the application of binding National Environmental Standards to accredited State environmental decisions.

Once again the Government finds its path blocked in the Senate, although this time the three cross-benchers concerned are not necessarily opposed to the Bill, but only to the idea of passing ‘reforms’ without seeing the report to which the Government links them, or without a Senate Inquiry into the Bill, or perhaps both.

How will things play out?

My crystal ball isn’t good enough to see how all this might play out. Perhaps we’ll see a Senate Inquiry, not just into the streamlining Bill but into the full Samuel Report. This would put everything on the table, from threatened species protection to Indigenous heritage failures (think Juukan Gorge).

On this scenario, instead of being able to deliver the ‘single touch’ model by Christmas as part of its COVID-19 recovery plan, the Government might find itself wading through the environmental policy swamp in the Senate for months, where it does not control the numbers.

Another scenario is that, in an effort to avoid wading into the swamp, that the government cuts a deal with Labor on the policy. What if we ended up with bipartisan support for accreditation based on standards?

Are standards the answer?

On the surface, such a deal could be attractive politically and environmentally. We’d get the efficiency of ‘single touch’ decisions, with checks and balances in the form of standards: quick decisions, but not at the expense of the environment.

Unfortunately it’s not that simple.

Professor Samuel recommended a phased approach, starting with interim standards, but refined over time with increasing ‘granularity’. This might mean that early standards are too general to be enforceable and so make little difference on the ground. Moreover, once interim standards were in place, States and developers alike would probably resist the progressive tightening that would come if the Commonwealth embarked on a program of rolling out progressively more-detailed standards.

Standards would be a new element in the environmental decision-making equation. As such, they represent something of a wild card and would probably attract legal challenges as environment groups tried to establish that standards should make a real difference to decisions.

So we could get standards that don’t really work, or standards that generate controversy. Not all standards are good standards.

But what if we actually got a decent set of standards?

But what if the standards were ideal, clearly and accurately identifying what was needed to maintain or enhance the condition of important environmental values such as threatened species?

We’d still face significant problems.

First, we lack the ability to measure what’s happening to the environment on a routine and ongoing basis. We’d need to complement the standards with quality and up-to-date information. Professor Samuels said a ‘quantum shift is required in the quality of information, accessible data and information available to decision-makers’. This would be expensive and take years to implement.

Then there’s the politics. Given the parlous state of the environment, well-defined standards, applied with precision, would often throw up the answer ‘You can’t approve that. It would result in the degradation or loss of [insert environmental value here, eg significant area of critical habitat, river-flow needed to maintain a Ramsar wetland, etc]’.

I think many politicians know this, if not consciously, at least instinctively, and would not wish to go down this track. We’d be tapping into what makes the environment such a wicked problem.

‘Doing the right thing’ could come at significant opportunity cost to the economy, not to mention direct impacts on various vested interests, while the standards would place any failure to do so in stark relief. There’d be nowhere to hide, no fudges available.

The recent threatened walk-out from Government by the National Party in NSW, over new and more precise guidelines concerning koala habitat provides a foretaste of this.

Standards alone are not enough

To me, the missing link is a means to bring society along with new standards, to create a broad acceptance that maintaining a quality of life for our children, even our future selves, will require difficult decisions.

The Gillard Government sought to do this in its ‘Clean Energy Future’ climate package in 2011. One element of the package was a Climate Commission, charged with engaging with the ordinary person, through ‘town hall’ meetings and the like, to explain the need for climate action. Unfortunately, the Commission bit the dust along with the carbon price, in 2014.

I know that anything associated with the repealed carbon price is political anathema, but this is where we need to go. We need broad community acceptance that we can’t live beyond our environmental means, and to explain what that means.

After 75 years of ‘jobs and growth’ messages from Western governments, going back to US President Truman’s urging in his State of the Union address in 1945 to ‘move forward … to the full utilisation and development of our physical and human resources’, that’s a tall order indeed.

Image by Albrecht Fietz from Pixabay

Trust us? Well let’s look at your record

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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.

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

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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

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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

Washing off the virus

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Will we throw the environmental baby out with the bathwater?

By Peter Burnett

In canvassing our recovery from the COVID-19 crisis, Prime Minister Scott Morrison has made bold statements about giving first priority to growing the economy through a business-led recovery. Finance Minister Mathias Cormann has deployed equally strong language about an ‘aggressive’ deregulation agenda.

The strength of such language must give anyone concerned about the environment pause for thought. There’s no doubt the economy will need some heavy duty kick-starting as we recover from the COVID-19 disaster.

However, might this crisis be used to justify a political narrative about environmental regulation being ‘green tape’? Could we, in the name of curing the current big crisis, end up accelerating the next big crisis, brought on by environmental decline?

Wrapped in green tape

Federal Environment Minister Sussan Ley already has a predilection for the green tape narrative. Announcing the current review of the Australia’s national environmental law, the Environment Protection and Biodiversity Conservation Act (EPBC Act) last October, she cast the review as an opportunity to cut ‘green tape’ and increase certainty for business.

The environment itself was only mentioned in the context of ‘maintaining high environmental standards’. Ley expressed no concern about the ongoing decline of the environment itself. And this was well before the COVID-19 crisis.

It is fair enough for the Government to look for increased efficiency, including in regulatory processes, as part of a plan for environmental recovery.

In federal environmental regulation, my first suggestion for efficiency would have been to fund the regulatory process properly. Successive governments have reduced efficiency by whittling departmental resources away through inflated ‘efficiency dividends’, code for general cuts. As a result, delays have gotten longer and longer, but of course they could have been reduced again by restoring the money.

But it seems that the Government is already on top of this one.

In November 2019 (ie, still before the crisis), it announced a $25m ‘congestion busting’ initiative to reduce delays in federal environmental assessments, including by establishing a major projects team ‘to ensure assessments can be completed efficiently and thoroughly in accordance with the Act.’

Recently, Ley announced that this initiative was delivering what appears to be significant progress. As of December, only 19% of ‘key assessment decision points’ were being met. But by March 2020 this had improved dramatically, to 87%. What’s more, the Minister says that figure should reach 100% by June 2020, all without relaxing any environmental safeguards under the EPBC Act.

In other words, the problem of slow environmental approvals will be solved in a couple of months.

I must admit to scepticism about this claim. I suspect that the assessments are much more superficial than they once were, more reliant now on accepting information provided by proponents and state regulators.

I also suspect that the introduction of user-charging for federal environmental assessments a few years ago, together with limited resources for compliance, mean that there are fewer projects under assessment. This is because proponents abandon a bias towards referring projects on a ‘just-in-case’ basis, in favour of a risk management approach, under which proponents weigh the costs of referral against knowledge that compliance action for failure to refer is unlikely.

However, let’s take the Government’s claims at face value for the moment and accept that regulatory delays, at least at the federal end, are on the way out. What else could they do to speed up environmental approvals?

More juice in the efficiency lemon

Even if individual statutory timelines are met, overall timelines can still be reduced, first by removing duplication between federal and state processes and also by removing delay at the proponent’s end. This latter kind doesn’t count as regulatory delay but is, of course, still delay.

Duplication is a complex issue and reform is a medium term task. But short-term gains could be achieved administratively, by forming federal-state task forces, ie by putting regulatory staff from both levels of government into a single team, tasked with shepherding the project through all processes as quickly as possible.

In the past I would have said the politics wouldn’t allow this, but I would also have said that a thing called ‘National Cabinet’ would never work. These are extraordinary times.

Proponents could also contribute to a task force model. I wouldn’t recommend direct secondment of proponent staff to task forces, as this is mixing the foxes in with the hens, but by increasing resources for their own project teams proponents could improve quality and responsiveness, both of which are essential to timely environmental assessment.

Avoiding the temptations of short-termism

So there are some gains to be had. Yet the temptation in a crisis is to grab onto anything and everything that might conceivably help deal with the problem at hand, taking a ‘tomorrow-can-look-after-itself’ attitude to any longer term consequences. And this is no ordinary crisis.

Beyond the marginal gains of efficiency, trading parts of the environment itself for a short term economic hit could look very tempting.

The OECD is alive to this issue and has come out with all guns blazing. In a recent statement, OECD Secretary General Angel Gurría argues, not just against weakening environmental standards, but in favour of stronger standards. In his view, governments should seize ‘a unique chance for a green and inclusive recovery … a recovery that not only provides income and jobs, but also has broader well-being goals at its core, integrates strong climate and biodiversity action, and builds resilience.’

In other words, kill two birds with one stone. Use your spending on post-virus economic recovery to advance longer term environmental recovery. Gurría has a three point plan for this:

First, align short-term emergency responses to long-term economic, social and environmental objectives and international obligations (ie, leverage your investment).

Second, prevent lock-in, not only of high-emissions activities, but also of impacts on vulnerable groups, who have been the worst affected by COVID-19. A key way to do this is through a fair transition to a low-carbon economy.

Third, policy integration. Integrate environmental and equity considerations into the economic recovery. This means that infrastructure investment, as well as government support to virus-affected sectors, should pass the test of contributing to a low carbon economy.

Don’t throw the baby out with the bathwater

The OECD is often described as a club for rich nations. And rich nations, including Australia, could be expected to take a conservative view about maintaining wealth.

Yet this advice sounds rather left of centre. In fact, in an Australian context, it is redolent of the mostly unlamented Rudd/Gillard/Rudd Government, which aligned its short term emergency responses to long term environmental objectives (think Pink Batts, 2008) and also pursued a fair transition to a low-carbon economy by compensating low income earners for the impact of the carbon price (think Clean Energy Future, 2011).

In my view the OECD is right but, in Australia, its advice may be cruelled by our recent political history. If the Government were to take the OECD’s environmentally-responsible but mildly collectivist advice it would be accused of taking the Rudd/Gillard path to disaster.

On the other hand, if the Australian Government follows through on its current rhetoric of a growth-led recovery and aggressive deregulation, we may be headed for solutions that throw the baby out with the bathwater.

Which will it be?

Image by Pezibear from Pixabay

Who’s the BOS?

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The NSW Biodiversity Offset Scheme (BOS) will now apply to federal development approvals in NSW

By Peter Burnett

Federal environment minister Sussan Ley has announced new arrangements with NSW covering the application of biodiversity offsets under federal environmental impact assessment (EIA) laws. Under these arrangements the NSW Biodiversity Offsets Scheme (BOS) will cover both federal and state requirements and the federal policy on offsets will no longer apply.

Sounds complicated and technical, should we care? Absolutely we should. EIA is the cornerstone of our approach to environmental protection in Australia; offsetting has gone from being rare to common over the last 20 years; and the manner in which state and federal governments coordinate their approach to assessing development is key to effective environmental regulation. Everyone with an interest in protecting the environment should care about this new proposal.

Is this an improvement? Do the feds just want to get out of EIA? With offsets becoming the de facto bottom line in EIA, who’s the BOS now?

It is complicated

EIA is complicated, but doubly so under Australia’s federal system, where federal and state governments have overlapping EIA laws. Governments have been trying for decades to reach agreement on reducing the resulting duplication, but with limited success.

When the Environment Protection and Biodiversity Conservation Act (EPBC Act) was passed in 1999, one of its big selling points was that it would put an end to EIA duplication through a mechanism known as bilateral agreements, or ‘bilaterals’ for short.

There are two kinds of bilateral. An ‘assessment bilateral’ accredits a state to undertake a single EIA process to inform two approval decisions, one by the Federal environment minister and one by the state.

The more powerful ‘approvals bilateral’ accredits a state to assess and approve developments, without any federal involvement, on the basis that the state system has been accredited as meeting all federal environmental standards under the EPBC Act. The feds tried to go there twice, once under Julia Gillard and once under Tony Abbott, but these ‘one stop shop’ initiatives failed both times.

So we are only talking about assessment bilaterals here.

One of the problems with assessment bilaterals is that they combine two assessments into one but leave two separate approval decisions to be made, applying two sets of policy, including on offsets.

So this latest decision, under which the Commonwealth will apply the NSW BOS instead of its own offsets policy looks like it should streamline decision-making.

And that’s how Minister Ley and her NSW counterparts are selling it, of course. But what about substantive standards on environmental offsets? Does the BOS deliver environmental outcomes as good as, or better than, the federal offsets policy?

How do the two offsets policies compare?

The NSW BOS has some real strengths, especially that it is a statutory scheme administered by a government-controlled trust. This enhances governance by providing consistency, continuity and transparency. It leaves the non-statutory federal policy, which lacks even the basic transparency of a public offsets register, in the shade.

Nevertheless, some environment groups opposed federal endorsement of the BOS. A key concern was that the BOS is aimed at biodiversity generally, rather than at the threatened species and communities protected under the EPBC Act. As a result, it does not have a requirement that offsets address impacts on a ‘like-for-like’ basis, for example to offset an impact on the Eastern Quoll with something that benefits the Eastern Quoll.

NSW addressed this concern by amending its Biodiversity Regulation to impose a like-for-like requirement, but only for impacts on matters protected by the EPBC Act.

Another key concern raised by environment groups is that the BOS typically delivers smaller offsets than the federal policy, especially for species or ecological communities that have a higher threat status (eg, a species listed as critically endangered). The main reason for this difference is that the federal policy, unlike the NSW BOS, uses a discount factor, related to the likelihood of extinction. This discount factor increases the offset quantum as the threat status increases.

Presumably NSW objected to introducing a similar discount factor for federally protected species and communities. So the Commonwealth accepted the NSW position, justifying this with the argument the level of threat ‘would still be considered’ by the Commonwealth ‘as part of the broader regulatory process’.

Despite these soothing words, I think it’s unlikely that the Commonwealth will impose an additional offset in such cases, which arise regularly, because this would undermine the (streamlining) purpose of endorsing the NSW policy in the first place. At best, this caveat provides an escape clause to be invoked in egregious or highly controversial cases.

Different policies in different states?

One effect of Commonwealth endorsing a NSW-specific offsets policy is that this is likely to lead to different outcomes in different states. This is clearly undesirable from an environmental point of view, as ecosystems and bioregions straddle borders. I imagine Minister Ley might agree in principle but defend the difference in outcomes on pragmatic grounds.

The application of different policies also made my lawyer’s antennae twitch. Not only does the the Constitution prohibit the Commonwealth discriminating between states in certain cases, but the EPBC Act itself contains sections that translate these constitutional prohibitions into specific bans.

For example, sections 55 and 56 of the EPBC Act prohibit the environment minister from discriminating between states and parts of states through bilateral agreements in certain circumstances. However, it turns out that neither the Constitutional prohibitions nor the sections of the EPBC Act apply in this specific case, for reasons too complicated to explain here.

So, as undesirable as it might be to have two different policies on the same thing, there is no law against it in this case.

Streamlining or watering down?

In the short term, whether this is a good initiative, a streamlining or a watering down in the interests of putting the states in the driving seat, is a mixed question.

Clearly it will reduce the regulatory impact of overlapping the EIA schemes. And the NSW BOS does have some significant strengths, which the Commonwealth would do well to imitate when it responds to the current review of the EPBC Act.

But it is a worry that the Commonwealth has adopted a policy specifying what is an acceptable biodiversity offset, but then decided that a lower offset is acceptable if the impact occurs in NSW.

In the longer term, however, the more important policy question is not whether an offset is acceptable under a policy, but whether it is sufficient.

This highlights a fundamental weakness of the EPBC Act itself, which is that the Act doesn’t specify any objective standard of environmental sustainability, but leaves it to the environment minister to decide what is ‘acceptable’. Something that is clearly acceptable to a minister may nevertheless fall far short of sufficient.

Hopefully the current review of the EPBC Act led by Professor Graeme Samuel will recommend an approach that sets clear benchmarks for what is sufficient to maintain biodiversity and ecological integrity, and then requires that those benchmarks be met.

Image by Terri Sharp from Pixabay

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

By Peter Burnett and Philip Gibbons

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

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

Useful but mostly problematic

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

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

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

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

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

The conundrums are not confined to the recommendations.

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

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

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

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

A gem of an opportunity

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

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

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

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

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

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

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

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

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