Words are cheap, but conservation is expensive

The new Threatened Species Strategy is big on rhetoric and small on resources.

By Peter Burnett

What is it the Government is trying to achieve with its new Threatened Species Strategy? It’s stated aim, as its title suggests, is saving threatened species. However, if you consider the evidence it’s hard not to conclude its real aim is something very different.

Saving species

Several years ago, Professor Brendan Wintle of the University of Melbourne and his colleagues published a study, Spending to save: What will it cost to halt Australia’s extinction crisis?, which found that, based on US expenditure, Australia would need to spend something between $910 million and $1.7 billion per year to avoid extinctions and recover threatened species.

This was roughly 7 to 14 times the $122 million that federal and state governments were spending each year between them on threatened species recovery. In other words, on a median figure, we’re spending around 10% of what is needed.

If you think that’s a lot, argued the authors, Australians spend twice as much on pet care. In fact, as Professor Wintle explained recently to a Senate Committee, it’s about the same as Australians spend on pet trinkets – diamanté collars and the like. [

What price the new threatened species strategy?

Last week, federal Environment Minister Sussan Ley released the Australian Government’s new 10 year Threatened Species Strategy. According to the minister, this new strategy builds on the momentum of the first strategy, which was launched in 2015.

It’s not easy to tie actions under these strategies to expenditure, as successive governments have worked hard to make evaluation and thus accountability difficult. However, in the recent 2021-22 Budget the Government announced $18 million to protect ‘iconic’ threatened marine species such as turtles and seabirds, and $29.1 million to protect native species from invasive pests.

The Budget papers don’t break these particular figures down over the four year period that is generally used for budget funding, but on average that’s an extra $11.8m per year, roughly a 10% increase on the $122 million figure from the Wintle et al study or an extra 1% of what is needed. That’s very small beer.

The strategy will be underpinned by consecutive five year action plans, which are intended to identify priority spaces and places, along with ‘concrete actions and practical, measurable targets to assess progress’. The first action plan is in preparation.

A little history

Before releasing the new strategy, the Government released a discussion paper, in October 2020. The discussion paper described the previous strategy, which had concluded four months earlier, but gave no information on how successful the completed strategy had been.

It simply stated that the Threatened Species Commissioner was ‘working on a final report which will present a robust, evidence-based analysis of progress against these 2020 targets’.

Now, some seven months later, we have a new strategy, but still no evaluation on the previous one. So we don’t know if the new strategy addresses the failings of the old.

Unfortunately I’ve seen this happen before, with Australia’s overarching national biodiversity strategy as well: roll out the new strategy without evaluating the old. This conveniently avoids unnecessary embarrassment about poor performance, or, perhaps worse, the inability even to measure performance.

Anyone who contributed to developing the strategy would have had to make do with the Threatened Species Commissioner’s annual progress reports, which include extremely general statements such as the Year 3 report that ‘eleven of these targets were met, four were partially met and six were unmet’ and the Year 4 headline that ‘we continued work to support all targets, with a sharpened focus on those the year 3 report identified as needing greater effort’.

A little strategy

So now we have new strategy, but it’s all high level stuff, broad descriptions on problems and approaches that few could disagree with, such as the vision that ‘Australia’s threatened species are valued, protected and on the path to recovery’.

We do know that, responding to stakeholder comments, the new strategy has been broadened to add reptiles, frogs, insects and fish to the priority birds, mammals and plants identified in the first Strategy. And that it will include marine and freshwater species, as well as terrestrials.

The strategy also includes a new focus on ‘priority places’ to ‘expand the new Strategy’s influence across our land and seascapes’. These priority places will include sites where threat mitigation and habitat protection efforts will benefit multiple species and ecological communities.

The strategy will also expand the number of key action areas to focus Australian Government efforts to landscape-scale actions, including major threats like weeds and diseases.

The devil’s in the detail

As to the detail, well that’s coming in the first action plan, development of which will commence in June; ie, 12 months after the last plan expired. This delay in dealing with such an urgent problem doesn’t fill one with confidence.

But we know that the action plan will cover at least 100 priority species and 20 priority places. There will be a continued focus on feral cats and a new focus on invasive pests and weeds.

We also know that the action plan will attempt to foster greater community engagement through citizen science and partnerships between First Nations people, business and non-government organisations.

Forgive my cynicism, but references to partnerships with business and the like are often code for Government attempts to avoid responsibility and share blame. It reminds me of the statement in our national biodiversity strategy that ‘caring for nature is the shared responsibility of all Australians’.

But one problem is already apparent: the broader the plan the more thinly the meagre available resources are likely to be spread, because I can’t see the government suddenly turning on the money taps. (At least not in a properly targeted way. As I discussed in an earlier blog, the government announced a $100m Environmental Restoration Fund just before the last election, and then promptly committed most of it through election announcements, without any expert advice as to how this money might best be spent.)

What’s the real strategy?

From a policy point of view, there is a complete disconnect between the size of the problem (enormous) and the approach to the solution (narrow focus, tiny resources). Governments are not irrational; when they do something that seems irrational it’s usually because they are actually solving a different problem.

In this case, I think the problem they are solving is the political problem of being seen to be doing something credible about a problem that they either don’t acknowledge or don’t want to engage with.

On that logic, the recipe of conferring the title of Threatened Species Commissioner on a public servant; engaging stakeholders in lots of consultation; producing a glossy strategy and sprinkling a little money around looks quite good to me.

Unfortunately, unless and until there’s a real groundswell of concern among voters about biodiversity loss, that’s the way it’s likely to stay.

Banner image: The Endangered cassowary is threatened by a loss of habitat, vehicle strikes, dog attacks and disease. Recovering just this species alone requires serious resources. (Image by Jessica Rockeman from Pixabay)

How good is Australia?!!

How deep have we stuck our head in the sand when it comes to the environment?

By David Salt

On May 19 2019 the Prime Minister of Australia, Scott Morrison, tweeted his now trademark catchcry following his ‘miracle’ election victory: “How good is Australia! How good are Australians!” (noting he was making a statement, not asking a question).

It’s now a standard part of his language of spin (how good is this, how good is that…) and it’s also much parodied. But in parodying ‘Scotty from Marketing’ I fear we often trivialise some of the damage his government is presiding over.

The opposition claims Australia is going backwards when it comes to productivity, equity, corruption, debt and trust; and have put forward numbers suggesting Australia is slipping back when compared with other nations.

However, for my money, the true problem with Australia’s performance is what we’re allowing to happen to the environment. We’re witnessing collapse after environmental collapse and our response it to talk up small victories (like our fight against plastic pollution) while ignoring the big picture. Our PM would have has pat ourselves on the back rather than focus on our withering natural heritage. We refuse to accept any form of responsible stewardship for our own environment while also shirking international effort to do better.

How good is Australia? How good are Australians? Consider these recent reports.

Australia the only developed nation on world list of deforestation hotspots
Australia remains one of the world’s hotspots for deforestation according to a new report by WWF, which finds an area six times the size of Tasmania has been cleared globally since 2004. The analysis identifies 24 “deforestation fronts” worldwide where a total of 43 million hectares of forest was destroyed in the period from 2004 until 2017.

Urgent action needed to save 19 ‘collapsing’ Australian ecosystemsA ‘confronting and sobering’ report details degradation of coral reefs, outback deserts, tropical savanna, Murray-Darling waterways, mangroves and forests.

Great Barrier Reef found to be in failing health as world heritage review loomsA government report card has found the marine environment along the Great Barrier Reef’s coastline remains in poor health, prompting conservationists to call for urgent action ahead of a world heritage committee meeting this year.

Implications of the 2019–2020 megafires for the conservation of Australian vegetation
More than 150 species of native vascular plants are estimated to have experienced fire across 90% or more of their ranges. More than three quarters of rainforest communities were burnt in parts of New South Wales. These contain many ancient Gondwanan plant lineages that are now only found in small, fragmented ranges.

The 2020 Threatened Species Index
Australia’s new Threatened Species Index (TSX) for birds, mammals and plants was released in December last year. According to the data released in the 2020 TSX, threatened plants have declined by 72% between 1995 and 2017 on average across all sites. At sites where conservation management actions were taken this decline is less pronounced, with a 60% average decline over the same time period. At sites with no known management, the average decline was 80%.

Australia confirms extinction of 13 more species, including first reptile since colonisationThis latest update cements Australia’s reputation as the mammal extinction capital of the world with 34 extinct mammal species. The next nearest nation is Haiti with 9 extinct mammal species.

These are all recent reports and they are all saying the same thing. Our environment is in severe decline.

How good is Australia? Well, in one respect we are world leaders. As Suzanne Milthorpe from the Wilderness Society puts it (following on from the announcement that 13 more species are now confirmed as extinct): “It’s official; 34 mammal species have been lost from Australia and as these species are found nowhere else, we’ve also lost them from the planet and from all of time. There’s not another country, rich or poor, that has anything like this record.”

Unaccountable, opaque and disingenuous

If that wasn’t bad enough, our national government is telling the world we’re doing a great job when it comes to reducing carbon emissions (something I discussed a year ago in Five lies that stain a nation’s soul) and we’re the world’s best coral reef managers (again, something the evidence categorically refutes, see ‘Best managed reef in the world’ down the drain).

The world is struggling with global change and climate disruption. In Australia, we’re doing our best to ignore what’s happening in our own backyard while denying we have any culpability.

To add injury to insult, our national government is attempting to shirk its responsibility to protect our national heritage by disabling key powers in our national environmental law (the Environmental Protection and Biodiversity Conservation Act, EPBC Act); reducing accountability by cutting funds to the Auditor General; and reducing transparency by abusing Freedom of Information (FOI) provisions surrounding environmental decisions.

Just yesterday the Australian Conservation Foundation (ACF) filed a case at the Administrative Appeals Tribunal challenging Environment Minister Sussan Ley’s refusal to release documents requested under Freedom of Information laws about 15 ‘fast tracked’ environmental approvals. ACF’s case will challenge the Government’s use of ‘national cabinet’ exemptions to avoid FOI disclosures.

How good is Australia? How good are Australians? Given our sad record of environmental decline and wretched environmental stewardship, our repeated and growing failure to protect those natural values we told ourselves and the world we would look after, these questions/assertions border on the obscene; and yet they constantly go unchallenged.

Australia is doing an awful job of looking after its environmental heritage for today’s generation and generations to come. It’s time we stopped burying our head in the sand, for that is exactly what we are doing when we allow our national leaders to discount our common future. Consider Australia’s Deputy Prime Minister’s recent declaration (reported in The Guardian): “We are not worried, or I’m certainly not worried, about what might happen in 30 years’ time.”

How good is Australia?

Image: Image by smadalsl from Pixabay

A major report excoriated Australia’s environment laws. Sussan Ley’s response is confused and risky

By Peter Burnett

This article is republished from The Conversation under a Creative Commons license. Read the original article.

It’s official: Australia’s natural environment and iconic places are in deep trouble. They can’t withstand current and future threats, including climate change. And the national laws protecting them are flawed and badly outdated.

You could hardly imagine a worse report on the state of Australia’s environment, and the law’s capacity to protect it, than that released yesterday. The review of the Environment Protection and Biodiversity (EPBC) Act, by former competition watchdog chair Professor Graeme Samuel, did not mince words. Without urgent changes, most of Australia’s threatened plants, animals and ecosystems will become extinct.

Federal environment minister Sussan Ley released the report yesterday after sitting on it for three months. And she showed little sign of being spurred into action by Samuel’s scathing assessment.

Her response was confusing and contradictory. And the Morrison government seems hellbent on pushing through its preferred reforms without safeguards that Samuel says are crucial.

A bleak assessment

I was a federal environment official for 13 years, and from 2007 to 2012 was responsible for administering and reforming the EPBC Act. I believe Samuel’s report is a very good one.

Samuel has maintained the course laid out in his interim report last July. He found the state of Australia’s natural environment and iconic places is declining and under increasing threat.

Moreover, he says, the EPBC Act is outdated and requires fundamental reform. The current approach results in piecemeal decisions rather than holistic environmental management, which he sees as essential for success. He went on:

The resounding message that I heard throughout the review is that Australians do not trust that the EPBC Act is delivering for the environment, for business or for the community.

A proposed way forward

Samuel recommended a suite of reforms, many of which were foreshadowed in his interim report. They include:

  • national environmental standards, legally binding on the states and others, to guide development decisions and provide the ability to measure outcomes
  • applying the new standards to existing Regional Forest Agreements (RFAs). Such a move could open up the forest debate in a way not seen since the 1990s
  • accrediting the regulatory processes and environmental policies of the states and territories, to ensure they can meet the new standards. Accredited regimes would be audited by an Environment Assurance Commissioner
  • a “quantum shift” in the availability of environmental information, such as accurate mapping of habitat for threatened species
  • an overhaul of environmental offsets, which compensate for environmental destruction by improving nature elsewhere. Offsets have become a routine development cost applied to proponents, rather than last-resort compensation invested in environmental restoration.

Under-resourcing is a major problem with the EPBC Act, and Samuel’s report reiterates this. For example, as I’ve noted previously, “bioregional plans” of land areas – intended to define the environmental values and objectives of a region – have never been funded.

Respecting Indigenous knowledge

One long-overdue reform would require decision-makers to respectfully consider Indigenous views and knowledge. Samuel found the law was failing in this regard.

He recommended national standards for Indigenous engagement and participation in decision-making. This would be developed through an Indigenous-led process and complemented by a comprehensive review of national cultural heritage protections.

The recommendations follow an international outcry last year over mining giant Rio Tinto’s destruction of 46,000-year-old caves at Juukan Gorge in Western Australia. In Samuel’s words:

National-level protection of the cultural heritage of Indigenous Australians is a long way out of step with community expectations. As a nation, we must do better.

Confusing signals

The government’s position on Samuel’s reforms is confusing. Ley yesterday welcomed the review and said the government was “committed to working through the full detail of the recommendations with stakeholders”.

But she last year ruled out Samuel’s call for an independent regulator to oversee federal environment laws. And her government is still prepared to devolve federal approvals to the states before Samuel’s new national standards are in place.

In July last year, Ley seized on interim reforms proposed by Samuel that suited her government’s agenda – streamlining the environmental approvals process – and started working towards them.

In September, the government pushed the change through parliament’s lower house, denying independent MP Zali Steggall the chance to move amendments to allow national environment standards.

Ley yesterday reiterated the government’s commitment to the standards – yet indicated the government would soon seek to progress the legislation through the Senate, then develop the new standards later.

Samuel did include devolution to the states in his first of three tranches of reform – the first to start by early 2021. But his first tranche also includes important safeguards. These include the new national environmental standards, the Environment Assurance Commissioner, various statutory committees, Indigenous reforms and more.

The government’s proposed unbundling of the reforms doesn’t pass the pub test. It would tempt the states to take accreditation under the existing, discredited rules and resist later attempts to hold them to higher standards. In this, they’d be supported by developers who don’t like the prospect of a higher approvals bar.

A big year ahead

Samuel noted “governments should avoid the temptation to cherry pick from a highly interconnected suite of recommendations”. But this is exactly what the Morrison government is doing.

I hope the Senate will force the government to work through the full detail of the recommendations with stakeholders, as Ley says she’d like to.

But at this stage there’s little sign the government plans to embrace the reforms in full, or indeed that it has any vision for Australia’s environment.

All this plays out against still-raw memories of last summer’s bushfires, and expected pressure from the United States, under President Joe Biden, for developed economies such as Australia to lift their climate game.

With the United Nations climate change conference in Glasgow in November, it seems certain the environment will be high on Australia’s national agenda in 2021.

Peter Burnett, Honorary Associate Professor, ANU College of Law, Australian National University

Image by pen_ash from Pixabay

Red lines for green values

What ‘standards’ are we prepared to accept in an overhaul of Australia’s national environment protection laws?

By Peter Burnett

When Professor Graeme Samuel’s Independent Review of the Environmental Protection and Biodiversity Conservation Act (EPBC Act) is tabled, which must occur by early February, we can expect to see recommendations for a complete overhaul of Australia’s national environment protection laws.

In an interim report in July, Samuel declared the EPBC Act to be a failure. Auditor-General Grant Hehir reached similar conclusions in his contemporaneous review of federal environmental approval processes under the same Act.

Despite having received the Samuel Review on 30 October, the Government continued to press a bill it had introduced in August to ‘streamline’ environmental approvals by devolving approval powers to the States in advance of the Review.

Professor Samuel had supported devolution in his interim report in July, but only in the context of a full reform package built on a foundation of his proposed National Environmental Standards.

A Senate Inquiry into the streamlining bill prompted key crossbench Senators to oppose it, not because they were necessarily opposed to devolution but because the government refused to provide them with the Samuel Review and other key supporting documents.

At the last moment, environment minister Sussan Ley provided the Inquiry, and thus all of us, with a copy of the draft Standards from the Samuel Report.

The draft Standards are the key to national environmental reform and thus worth a closer look, even without the benefit of the full Samuel Report.

Why set standards?

The standards deal with the so-called ‘matters of national environmental significance’ that are protected by the EPBC Act. Some of these like World Heritage and threatened species are well known. Others, such as internationally significant ‘Ramsar’ wetlands, are not.

Despite being confined to the Commonwealth’s responsibilities, the standards address the bulk of Australia’s most significant natural environmental and heritage values (other than climate), and have implications for the rest.

A key problem with many environment protection laws, including the EPBC Act, is that they require decision makers to follow due process and to consider various policies and principles (in Australia, often built around the concept of ‘ecologically sustainable development’) but without setting a bottom line based on maintaining essential environmental values and functions.

This enables a culture in which decision-makers can, and often do, pay lip service to the environment while approving its ongoing decline. Sometimes this lip service is paid by burdening industry with numerous ‘strict conditions’, thus delivering a ‘lose-lose’ outcome.

National Environmental Standards could change all that. Their key purpose is to set minimum environmental outcomes, including for decisions devolved to states.

A good set of environmental standards will identify our most important environment and heritage values and define the level of environmental function needed to maintain those values over time. The effect of standards is to place off-limits any deliberate degrading of these values and functions. One result is that significant or irreversible environmental loss cannot be traded for an economic or social gain, no matter how large, except possibly in national emergencies.

The Samuel Standards

Professor Samuel delivered a set of 10 national environmental standards, one overarching and one for each of nine matters of national environmental significance. The Standards would be relevant to activities and decisions at all scales but their most obvious application would be in assessing development proposals.

Apart from being innovative in themselves, the standards introduce policy concepts such as a ‘principle of non-regression’ and the ‘ecological feasibility’ of biodiversity offsets.

They also give new recognition to some not-so-new concepts such as the need to consider the impacts of development proposals on a cumulative basis. This would address a long-standing concern of environmentalists that individual developments chip away at environmental values, a process known colloquially as ‘the death of a thousand cuts’.

Addressing cumulative impacts implies there should be a bottom line for each species and ecosystem. To take a current example, it implies that government should determine a minimum viable habitat and population for koalas, probably for each population region. As this threshold of viability was approached, development approvals with koala impacts would become increasingly difficult and ultimately impossible to obtain. (The corollary is that if the threshold has been crossed, investment in recovery and restoration is an imperitive).

The standards are certainly not perfect. In discussions within a consultative group of which I was a member, Professor Samuel made clear his dislike for ‘weasel words’, a dislike that I share.

Unfortunately, the standards retain too many of these undesirable creatures. Some, such as ‘promote’ and ‘not inconsistent with’ come from the existing Act, while others such as ‘all reasonable efforts’ are new.

There is much to welcome and discuss in these standards, but I would start with an edit. This would be for policy clarity, not drafting elegance.

Red lines for a green solution?

The standards present the Government with a conundrum. On the one hand, with the EPBC Act declared a failure and the environment in ongoing and increasingly obvious decline, the case for reform is overwhelming and the potential of the standards as a foundation for action is great.

On the other hand, implementing standards would require a major and costly upgrade of our regulatory infrastructure, starting with what Samuel has described as a ‘quantum shift’ in the availability of environmental information.

Setting standards would also amount to drawing red lines for nature. As the Brexit negotiations most-recently illustrate, red lines can attract a world of political pain.

Image by Shell brown from Pixabay

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

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

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

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

Washing off the virus

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?

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