The slippery slopes of failed environmental governance: Who accounts for the regulators?

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By David Salt

Liberia is having problems with its environmental governance. And so are we.

Deforesting a biodiversity hotspot

Logging companies are exploiting weak monitoring and enforcement of Liberia’s forestry laws. Apparently, a 2019 audit had found that around 14,000 cubic metres of timber supposedly harvested legally was actually untraceable (and therefore probably illegal) yet permits for the sale and export of much of the timber were still approved. Authorities have known about the case for more than two years, and done nothing. What’s more, the logging company responsible has a long and troubled history of violations.

Well, is anyone surprised? Liberia, a biodiversity hotspot, is one of the poorest and least developed countries in the world. It’s been ripped apart by civil war and disease, and corruption is endemic at every level of the Liberian government. Illegal timber harvesting has, in particular, been an ongoing running sore; as is the case in so many developing countries (like our nearest neighbours, PNG).

Thank God we can trust environmental governance in Australia.

Or can we?

Too steep to log

Over the last year it’s come to light that Victoria’s state-owned timber corporation, VicForests, has been illegally harvesting timber on some of the Central Highland’s steepest slopes, thereby risking the quality of water flowing from these landscapes. This is not a metaphorical slippery slope we’re talking about here.

If that wasn’t bad enough, an investigation undertaken by the ABC suggests the government regulator, whose job it is to monitor VicForests, was alerted to the breaches but failed to properly investigate.

Unfortunately, it’s not the first time the timber corporation has been accused of illegal logging, nor the first time the regulator has been accused of ignoring it.

According to leading ecologist Professor David Lindenmayer, who has been researching these forested landscapes for decades, it’s the story of Australia’s “lawless” loggers, and a regulator failing to regulate.

Buried without consent

And then there’s the sad tale of the mining company Whitehaven Coal attempting to carry out the mass disposal of its mining tyres by burying them in the Leard Forest Precinct, on the ancestral lands of the Gomeroi traditional owners. The land is under a Native Title claim. Under the Environmental Planning and Assessment Regulation 2000, approval of the NSW Aboriginal Land Council is required. Whitehaven has no such approval, something the Land Council has pointed out to them. Allegations have been circulating in the region that Whitehaven attempted to threaten Gomeroi with loss of jobs if they do not sign off on the tyre landfilling.

Sad as this sounds, the more worrying aspect of this story is that the primary environmental regulator for New South Wales, the NSW Environment Protection Authority (EPA), has given the okay to conduct the mass burial of mining tyres. While technically termed “agency advice” and not “approval”, the NSW EPA’s approval of Whitehaven Coal’s application to bury off-the-road mining tyres for the life of the Maules Creek mine, would be subject only to a “review” every two years.

This has led some to suggest that the NSW EPA has been captured by the coal industry in north west NSW.

Against the flow of law

Maybe you think a few thousand giant tyres buried on Aboriginal land against its owners wishes is small beer not worthy of losing any sleep over. If so, what’s your view on the state’s water supply being governed for the interests of irrigators and not the public interest? Impossible you say? Well, not according to the NSW Independent Commission Against Corruption (ICAC). It found that the New South Wales Government was favouring irrigators over other water users in a manner that went against its own laws!

In November of last year, ICAC released a damning report on water mismanagement in New South Wales (NSW), Australia. The report detailed a history of water agencies’ ‘undue focus on irrigator’s interests’, including more than a decade of failure to give ‘proper and full effect to the objects, principles and duties’ of the Water Management Act 2000.

For example, the ICAC found that one of the State’s former top water bureaucrats had held a clear bias in favour of irrigators. It confirmed that this person had provided a select group of irrigator lobbyists with confidential legal advice as part of a strategy to undermine national water laws; that he conflated the commercial interests of certain irrigator groups with the broader interests of the entire state; and that he assumed that the interests of ‘direct’ water users trumped those of ‘indirect’ users (whom he helpfully identified as the environment and First Nations peoples).

Despite this clear finding, the Commission did not find that this approach (let’s call it ‘business-as-usual’) was ‘corrupt’ behaviour. This has led many to suggest that anti-corruption watchdogs are perhaps unable – or unwilling – to take on ‘regulatory capture’ of entire agencies. Regulatory capture might be defined as decision making by public servants that favours particular and regulated interests, rather than incorporating the broader public interest, or the objects of the relevant legislation.

A slippery slope

Corruption is a slippery slope.

There will always be bad actors out there attempting to get the most they can out of a system. That’s why we have laws to constrain them. But those laws are meaningless unless there is monitoring and enforcement to ensure they are respected. And that’s why we have environmental regulators established with these powers.

But we kid ourselves if we believe you can simply set up an environmental regulator and then just leave it – set and forget – because over time things change. Environmental regulators often face funding cuts making it difficult for them to fulfil their mission. Lobbyists influence political parties to modify regulation and oversight to benefit their industry groups, and companies do everything in their power to get the regulators to smile on their enterprise.

The examples I cite here are just those that have come to light in recent months, but it’s happening all the time. That’s why, with the best will in the world, it’s not enough to believe our environmental regulators can be left alone, out of sight, to get on with the job.

Their accountability, transparency and capacity to operate at arm’s length from companies they regulate all need to be constantly reviewed and tested. They need to be examined by a robust free press, questioned by an enquiring general public, and audited and interrogated by anti-corruption government agencies (auditors and independent corruption commissions).

And even if this all happens, things can still turn rotten. It’s a big challenge.

However, in Australia, our national leaders are still unable to create a decent anti-corruption agency despite years of promises. It’s clearly not a priority despite multiple failures over time.

There are so many reasons to feel sorry for Liberia and its attempts curb environmental degradation.

We don’t have those excuses. And we kid ourselves if we believe our environmental regulators are fit for purpose.

Banner image: tmcreynolds at Pixabay

Sharma v Minister for the Environment

A big win for children on climate change, but for how long?

By Peter Burnett

Never underestimate children. Last week I was telling my family, over dinner, about a recent decision by Justice Bromberg in the Federal Court, concerning climate change. You’ve probably seen media reports of the case, Sharma v Minister for the Environment; in part because it features a group of children.

“The case was brought by half a dozen teenagers,” I pronounced, pleased to be able to talk about my work, “represented by a nun in her eighties.

“There were eight children,” corrected my 11-year-old granddaughter, who is in Year 6.

Well picked up granddaughter, there were indeed eight.

While my main purpose here is to discuss the court case, I have to say it’s heart-warming to see such awareness in one so young. After all, the case concerned her future. Yet it is also heart rending, given the Court’s finding that the climate future facing today’s children was ‘potentially catastrophic’.

The court challenge

The children sought a declaration that the federal environment minister owed them a duty of care in relation to a proposal by a subsidiary of Whitehaven Coal to undertake a major expansion of its Vickery mine in northern NSW.

The Environment Minister came into the equation because the mine could only proceed if she approved it under the EPBC Act, an approval the minister had not yet given.

The expansion would extract an additional 33 million tonnes of coal over 25 years, which would generate 100 million tonnes of C02 when burned.

This is equivalent to about a quarter of Australia’s annual emissions. Although the Court found that, in isolation, these emissions would result in a global temperature increase of only one eighteen-thousandth of a degree Celsius, it rejected an argument that it should disregard this increase as negligible under a legal rule known as de minimis.

The argument for the Minister owing a duty of care was that potentially catastrophic future climate impacts were the foreseeable result of approving the mine and that the children were so vulnerable and so closely and directly affected by a decision under the control of the Minister that she ought to take reasonable care to avoid personal injury to them.

The Minister’s arguments in reply were based on the EPBC Act being a statutory scheme that should, for reasons of both principle and legal interpretation, be regarded as not amenable to common law principles of negligence. A common law duty of care would, the Minister argued, skew her regulatory task.

Interestingly, the minister did not challenge evidence from Emeritus Professor Will Steffen and other experts about the future impacts of climate change on the children. Clearly the government did not want to open itself to accusations of denialism by putting the facts in question, and so it relied exclusively on legal arguments.

The court decision

The Court accepted the argument that the minister owed the children a duty of care not to injure them when exercising her power under the EPBC Act to approve or not approve the mine extension. However, because the judge was not satisfied that there was a reasonable apprehension that this duty would be breached (basically because it was too early to know what the minister might decide), he refused to grant an injunction.

This simple decision sits atop nearly 150 pages of complex legal analysis about the law of negligence, the circumstances in which the courts might find a novel duty of care, such as the one here, and the interaction between statutory schemes such as the EPBC Act and the common law of negligence.

Implications of the decision

There’s enough raw material in this decision for a PhD thesis. So for present circumstances, let’s just look at implications and prospects.

If the decision stands, the implication of the case for decisions under the EPBC Act is that the Minister, when considering whether to approve a development, must now turn her mind to an additional mandatory consideration, the likelihood of personal injury, at least to children if not to others.

This would most likely be of relevance in situations similar to this case; ie, to very large fossil fuel projects, given their climate impacts. The ironic fact that the EPBC Act does not directly regulate climate impacts would not affect this outcome.

It is also conceivable that the precedent might apply to other projects with very large impacts, for example where a project might lead to extensive contamination of the waters of the Great Artesian Basin.

The decision also has potential implications far beyond the EPBC Act. If this duty exists under that Act, it may also apply to other government decisions, possibly even to Cabinet and Budget decisions. And if the duty applies to the minister in approving a mine, it may also apply to those, like Whitehaven, who build and operate mines.

The prospects of the decision standing

This is only the latest in a series of cases which have put fairly adventurous arguments before the courts in the hope of giving the EPBC Act some real teeth. Unlike most of the other cases, on this occasion the arguments have been successful.

However, I think this decision will be appealed and overturned. The arguments would be complex, but in my view, the one most likely to succeed is straight-forward: that the EPBC Act contains a specific direction to the minister to the effect that, in deciding whether or not to approve a development, he or she must only consider the things listed in the relevant division of the Act. That division makes no mention of a duty of care.

If I am right, in one sense it will be back to business as usual, with the Environment Minister approving individual developments on the basis that their impacts are ‘not unacceptable’, while the environment continues to decline.

However, climate litigation is becoming more common around the world as climate risks and impacts increase. Corporations are becoming increasingly responsive to those risks. Even if the case is reversed on appeal, the decision will have given Australian businesses pause for thought and can only add to the momentum towards ‘net zero by 2050′, even in the absence of a government policy to that effect.

Image by Wi Pa from Pixabay