Reforming national environmental law: first get rid of it, then fix it?

By Peter Burnett

While our country (and the world) has been gripped by the unravelling saga of the CoVID pandemic, our national government has been conducting a quiet plan to devolve most decision-making under our national environmental law, the Environment Protection and Biodiversity Conservation Act (EPBC Act), to the States, before a major review of the Act hit the deck.

I think this plan has now been derailed, though as I write, a couple of sitting days remain for cross-bench deal making in the Senate.

Some background

Regular readers will know that I often write about the EPBC Act. In part this is because I have worked with this law for a long time (both as a public servant and as a researcher) and have developed a strange kind of affection for its labyrinthine ways.

But I am also keenly interested in the performance of this legislation because its ups and downs are a reasonable proxy for the general health of Australian environmental policy. Unfortunately, the EPBC Act has been having a lot more downs than ups recently.

The Act has just undergone its second 10-year review by Professor Graeme Samuel AC. Professor Samuel was scathing in his Interim Report delivered in July. He found that the Act was ineffective and had lost the trust of business and environmentalists alike. An Auditor-General’s report tabled at the same time was equally scathing of the way the Act was being administered.

The key recommendation of Samuel’s Interim Report was that a revamped EPBC Act should be based on National Environmental Standards. These would actually set some bottom lines for environmental approvals and put an end to the current ‘tick-the-process-boxes-and-then-decide-anything-you-like’ approach.

The Government received Professor Samuel’s Final Report at the end of October 2020. The Government has yet to release it.

The ‘green tape’ narrative and ‘streamlining’ environmental decisions

In the meantime, and even after the Interim Report revealed the story of a failed law and ongoing environmental decline, the Government has maintained its single-track narrative of ‘cutting green tape’ and the need for ‘streamlining’ to increase regulatory efficiency.

In fact, the Government has long wanted to devolve Federal environmental approvals to the States and it would be fair to say that since it won the 2019 election it has been champing at the bit to make it happen.

Unfortunately for the Government, the mechanism built into the EPBC Act to allow this devolution cannot work without some mostly-minor legislative tweaks, requiring the support of a Senate it does not control.

The Government’s sense of urgency seems to have got the better of it, possibly because the Prime Minister tagged environmental devolution as one of the ingredients for a post-Covid economic recovery. Documents released under freedom of information reveal that back in February the Prime Minister’s position was that to avoid pre-empting the Samuel review, the legislative tweaks would need bipartisan support.

By August, when the ‘Streamlining Bill’ was introduced, this was no longer the Government’s position. Now, the narrative was that the Streamlining Bill, although a replica of a failed bill from back in 2014 (when Tony Abbott was in charge) and lacking any of the Samuel reforms including provision for National Environmental Standards, was in fact the first tranche of reform linked to the Samuel Review.

It was left to others to make the argument that the Streamlining Bill was pre-emptive and should not proceed ahead of Samuel’s Final Report.

Initially the Government was in a great hurry, to the point that it guillotined the vote in the House of Representatives and prevented independent MP Zali Steggall from introducing an amendment to provide for National Environmental Standards.

Still in a hurry, the Government successfully opposed two attempts to have the Bill considered by a Senate Committee. Eventually however it rolled over and supported a third motion to refer the bill to committee; presumably when it became clear that the Government would not have any chance or wooing the cross-bench without committee consideration.

Senate Inquiry

So the Senate Environment and Communications Committee established an Inquiry into the Bill. Normally these things take some months, but on this occasion the Inquiry was to report within several weeks, which meant that submissions had to be written quickly and a hearing conducted within days of submissions closing.

Was this part of a deal with the cross-bench, I wondered? Is there any point in dropping everything to dash off a submission? Putting my doubts aside I wrote a submission and was lucky enough to be invited to give evidence before this Committee.

Although I had often appeared before Senate Estimates Committees as a public servant, this was the first time in which I had appeared on my own behalf and was free to say pretty much anything I wanted.

I have to say I enjoyed the experience. It was good to be having my say and to be heard by members of our apex institution.

What’s more, the questions were relevant and informed. A colleague had recently been on the receiving end of some politically-loaded questions in another committee, but there were no such antics here.

The Committee reported quickly. At the end of the day the crucial cross-bench Senators accepted the argument that it was pre-emptive to be pushing this bill through ahead of Samuel’s Final Report.

So it looks like the Streamlining Bill will not pass before that report is tabled; this must occur before the end of February.

An unexpected revelation

Sometimes this kind of proceeding produces some unexpected revelations, which is one reason that governments don’t like them: such developments can derail a carefully constructed narrative.

On this occasion, officials revealed that in addition to the Streamlining Bill, the Government had drafted, but not tabled, a provision to provide for the making of National Environmental Standards by legislative instrument (ie, something similar to what Ms Zali Steggall MP had tried to do).

This is significant because by long-standing policy, set out in the Legislation Handbook, legislation is only drafted once the Government has approved the underlying policy. In other words, laws are only drafted for introduction. The system does not allow for drafting on a contingent or speculative basis, including by individual ministers.

The implication is that the Government has actually decided to support the idea of legislated National Environmental Standards. The fact that draft legislation for the standards has not been tabled suggests one of two things.

The first is that the government is breaking its own rules by drafting legislation on a contingent basis, presumably to introduce only if it couldn’t get its Streamlining Bill through. This would be an attempt to game the Senate and is a display of bad faith.

An alternative explanation is that there was some kind of rear-guard action within the Government, most likely a move from conservatives to block legislation for national standards that might constrain State development approvals under devolved arrangements.

Both explanations seem somewhat unikely but I favour the second, as a display of bad faith towards the Senate could cruel the pitch for other government proposals. If I am right, the cause of reforming biodiversity and heritage protections could be as fraught as that of climate policy reform.

Assuming the Streamlining Bill is dead, the next step is for the Government to table the Samuel Review. Hopefully this will trigger a wide-ranging debate on the environment, focused around a set of draft environmental standards and overwhelm the government’s one-track focus on ‘green tape’.

In my view we have never really had this debate and it would be good for us all to be confronted with the question, in the broad, of how much environment protection we want and whether we are prepared to pay for it.

But will the Government table an effective reform package to replace an Act which, all seem to agree, is a failure? Or, based on the climate policy precedent, should we expect a continued one-track focus on ‘green tape’ and ‘reforms’ that do little to address the policy failures that Professor Samuel and the Auditor General have identified?

Image by 3Dinaani from Pixabay

The zero sum game – from biodiversity to emissions

A game for mugs or a magic pudding that just keeps giving?

By David Salt

Zero net emissions by 2050! It’s the goal proclaimed by many countries around the world*, and it’s aimed at stemming the tide of climate change.

Zero net emissions is the recipe for enabling business as usual (ie, strong economic growth) while supposedly dealing with the externalities resulting from business as usual (ie, civilisation-ending climate change).

And it’s a political winner because governments aren’t targeting specific economic sectors (ie, the fossil fuel industry). Indeed, this far away from 2050, they aren’t being pegged down by too many specifics on how it will be achieved. The generic solution, implicitly and explicitly rolled out everytime, is that technology will save the day.

The magic in the pudding

So where is the magic that drives this ‘zero-net’ proposition? It’s in the ‘net’ bit. This framing means you don’t have to be ‘zero’ in your emissions in any specific activity, like burning coal if that’s what tickles your fancy.

But you do have to be zero in your cumulative effort. If you produce carbon emissions in one area then you need to do something somewhere else that removes that carbon so the cumulative impact (the net effect) is zero.

How do you remove carbon from the atmosphere? The traditional way has been to plant trees or do existing activities in ways that emit less carbon, a good example being using renewable energy instead of fossil fuel energy.

It works as a political solution because it means you don’t have to explicitly say who is going to bear the burden of reducing their emissions. At some point, however, someone, somewhere is going to have to change their behaviour – after all, sustainability bites!

Experience so far with zero sum policy games suggests they are tricky to establish and easy to work around (ie, cheat).

Offset this

What, you weren’t aware of other zero-sum games? They’re actually quite popular and one place where it’s really taking off is in the arena of biodiversity conservation. The name of this specific game is called biodiversity offsetting.

When it comes to any economic activity with impacts on biodiversity there are many rules and regulations to prevent the loss of species and ecosystems.

To begin with, the proposer of a new economic development must demonstrate their proposal isn’t adversely impacting any native species or ecosystems. If it does, the developer is required to state what they will do about it to remove that impact.

Indeed, developers are expected to apply a mitigation hierarchy to their proposal (see the South Australian Government for an example) in which they need to show how they will first:
1. avoid the negative impacts of their development but doing it in a different way. But if there is still impact, they need to then demonstrate how they will
2. minimise the size of the impact of the development; and then
3. restore the area to make up for the impact.

However, if the developer can’t avoid, minimise or restore the impact they create, they can now offset the damage of the development by doing something good for the environment somewhere else. If you clear a stand of native trees over here for a shopping centre, you might offset this impact by planting the same species of tree somewhere nearby.

The aim is to achieve ‘no net loss of biodiversity’ over time. See, it’s a zero-sum policy game.

The trouble is, in many places it’s been seen by developers as a green light for development and has resulted in many perverse outcomes.

A green light for decline?

For starters, many developers don’t even bother with the mitigation hierarchy (because avoiding, minimising and restoring all cost considerable resources and regulators often don’t check to see whether the impact can be mitigated) and jump straight to some form of offset proposal. But proposing offsets for developments are usually quite complex and there’s a lot of research around to show they often don’t actually offset the impacts of the development (in space or time).

In some cases, the development impact is on something that is irreplaceable like the potential loss of threatened species. In these situations it’s impossible to offset the potential loss and the development should be blocked. Instead, the developer is sometimes asked to do something that might be ‘equivalent’ to a direct offset, like contributing money to an education awareness program that may help save the species. Such indirect offsets are not actually offsets at all but they do give cover for economic development to proceed.

The overall outcome is that while there is a goal of no net loss of biodiversity, biodiversity is lost anyway. Around the world we are seeing a mass extinction event taking place and biodiversity offsetting does not seem to be making any difference.

The devil is in the detail

The lesson here is that great care needs to be applied to the establishment of any zero sum policy game. It needs to be transparent, accountable and enforceable. And it cannot be applied merely as cover for business as usual to proceed without any checks and balances.

Economic activity that generates positive carbon emissions (ie, above zero) needs to be accountable for matching these emissions with activities elsewhere that generate negative carbon emissions (ie, activities that remove carbon).

Governments oversee this process and need to establish robust and transparent frameworks that keep track of these activities and their emissions, and report this tracking in a clear and simple way so everyone has faith in the system. To sustain this faith, the monitoring and measurement will need to be independent of government; something along the lines of what Zali Stegall recommended in her climate bill.

A lot of thought will need to go into how you trade emissions across time (eg, savings emissions today to pay for extra emissions in the future) and space (eg, buying emissions savings from another country for an emission heavy activity in our own backyard).

While the law surrounding such net zero policies will be enacted at the national level, it’s likely this game will involve the trading of positive and negative emissions between countries so the net zero frameworks will need to operate with agreed international norms.

The System of Environmental-Economic Accounts is one existing framework that might help with all of these issues.

Maybe net zero emissions is a policy pathway that might engage opposing political forces, something that efforts to date have failed to do. However, to transform the call for zero net emissions by 2050 into workable and effective policy, much effort will need to go into creating intuitions that will hold governments to account and prevent them from fudging the figures.

Image: the cover of the UN Emissions Gap Report for 2019

*According to the UN Emissions Gap Report for 2019, most emissions — 78%— come from the top 20 economies, the G20. Of these, only five had pledged to long-term zero net targets (and this did not include the three big emitters: China, the US and India). Around 70 countries worldwide have made pledges of being carbon neutral by 2050.

A tale of two climate bills

One is about meaningful reform, the other more about politics

By Peter Burnett

Last month, Zali Stegall released her long-anticipated climate change bill. This month, the Australian Greens released a climate bill of their own. They are quite different pieces of legislation. One is quite solid, I think, while the other is more about politics than meaningful outcomes.

Zali Stegall, of course, is the Independent MP for Warringah. She stood against Tony Abbott, one of Australia’s leading climate change deniers (and former PM), on a platform of introducing meaningful climate change policy; and she won. Her bill has been under development since her election in May 2019. Against the backdrop of Australia’s horror summer, and the resulting rocketing of the environment to the top of the political agenda, it could not have been better timed.

The Greens’ climate bill, on the other hand, looks to me like it might have been drafted in a hurry, for reasons I will explain below.

Given the contrasting approaches of the two bills and the possibility that a Parliamentary committee might end up looking at both, it’s instructive to consider what they contain.

The Stegall Bill

The full title of Stegall’s bill is Climate Change (National Framework for Adaptation and Mitigation) Bill 2020. As the title suggests, the bill establishes a framework for climate policy leaving it up to the government to develop climate mitigation programs that meet the targets set by the framework.

The bill would legislate a target of net zero emissions by 2050 and establish an independent Climate Change Commission, tasked with preparing a national National Climate Risk Assessment every five years. In response, the Government must prepare a national adaptation plan, together with five-year national emissions budgets and emissions reduction plans to meet those budgets.

Space doesn’t allow a more detailed examination, but you get the drift: the Bill sets the overarching target, while the independent Commission looks after the framework and keeps an eye on the Government. The Government’s job is to develop and implement detailed plans to meet the targets. If both parties do their job properly, national emissions follow a trajectory down to net zero 2050 while inflicting the least possible pain.

The Greens’ Bill

By contrast, the Greens’ bill has a much narrower focus. It’s full title is the Environment Protection and Biodiversity Conservation Amendment (Climate Trigger) Bill 2020, and it seeks to amend parts of the Environment Protection and Biodiversity Conservation Act 1999 (EPBC Act) to introduce a climate ‘trigger’ for ‘emissions-intensive actions’; specifically land clearing, drilling exploration and mining (with the capacity to add others later by regulation).

The EPBC Act has nine triggers, for example one for threatened species and one for large coal and gas projects affecting water resources. The basic idea is that if a trigger is, well, triggered, by a development proposal, the development can’t go ahead unless it has been the subject of an environmental impact assessment (EIA) and a decision by the environment minister as to whether the project can go ahead, and if so, on what conditions.

In short, the Greens’ bill extends existing environmental regulation to land clearing and mining projects in order to reduce their climate impacts.

Two bills compared

Stegall’s bill is impressive. Although she was able to draw heavily on overseas precedents, the bill is well drafted and specific to Australian law and circumstances. It is complete to every last detail, including administrative matters like pay-and-leave entitlements for the Commission’s CEO.

I know Stegall is a lawyer and probably had lots of free expert advice. Nevertheless, she’s a first term Independent MP, with no party colleagues or resources to draw on. Yet she has produced a bill that is just as good as one that might have been produced by the Government with the full resources of the public service.

The Greens bill on the other hand is disappointing. The Greens have been around for a long time and have a much greater depth of resources available to them. Yet the bill is narrow, doing little more than bringing two major categories of development into an existing regulatory net, one which leaves it almost entirely to the environment minister to decide what, if any, emissions-reducing conditions to impose.

Even within this narrow scope, the bill doesn’t seem to have been well thought through.

A mining or land clearing project will only trigger an EIA if its emissions would likely have a ‘significant impact’ on the environment. Under the EPBC act, the environment is defined in wide terms. And ‘significant impact’ is not defined. Greenhouse gas emissions do not have a direct impact on living things; they have an indirect impact in that they change the climate and it is the changed climate which has an adverse impact on the animals and plants.

Finally, the Act doesn’t regulate cumulative emissions, which means that a decision about whether a project triggers the Act only considers the project in isolation.

When you take these factors together, it means that the emissions from a single project, such as a proposed mine, may not be ‘significant’ under the act unless they are so great as to change the climate, by themselves, something that would only occur with an enormous project.

As a result, I think there is a good argument that the Greens’ climate trigger would never operate.

The politics and the process from here

It’s important to emphasise that Stegall’s bill has not been introduced in parliament. Rather, Ms Stegall has simply released it by public announcement. A key reason for doing this is that the government controls the numbers in the House of Representatives, where Ms Stegall is a member. It is very unlikely that the Government will ever allow her to introduce the bill formally, because this would cause the government to lose control of the climate change debate (more than it already has).

Significantly, the bill is supported by Rebecca Sharkey of the Centre Alliance Party, which also has members in the Senate. One scenario is that, once it becomes clear that the Government will not allow the Stegall bill to be introduced in the House of Representatives, Centre Alliance may introduce it in the Senate, which the Government does not control.

Once introduced, a bill can be referred to committee, which provides a good platform for public hearings and a committee report to keep public debate on the boil.

This may be where the Greens bill comes in. Rather than have a first-time Independent MP steal their thunder, perhaps the Greens foresaw this scenario and want to have their own bill that can be referred to committee as well. This way they would not be left dancing to someone else’s tune.

Outside Parliament, the temperatures will be dropping as we head towards winter. Inside, it’s likely that the Stegall bill will warm up the Winter Sittings one way or another, whether under my scenario or another. If that’s the case, let’s hope the deliberations produce some light as well as heat.

Image by enriquelopezgarre from Pixabay