In a separate article with colleagues from the Biodiversity Council, I have argued for substantive changes to the government’s draft Nature Positive reforms, currently in the Senate. Here, I look at the politics of a possible Senate deal on those reforms.
Although most of the pundits are still tipping Australia’s next federal election will be in April or May next year, the way in which the Albanese government is systematically clearing the Parliamentary decks makes me think the PM is considering the option of a December election.
Why is this relevant to the environment? It’s because one of the packages still sitting on deck in the Senate would set up two new national environmental agencies, Environment Protection Australia (EPA), sometimes pitched as a ‘tough green cop on the beat’ and Environment Information Australia (EIA), a kind of statistical bureau for the environment.
These reforms in turn are but two elements of a much larger overhaul of national environmental law, the Nature Positive Plan, launched by environment minister Tanya Plibersek in December 2022.
I won’t rehash the history of this plan and the frustrations of a reform process that became bogged down, beyond reminding you that in April this year environment minister Tanya Plibersek switched most of the reforms onto a slow track known as ‘stage 3’, leaving only these draft laws for EPA and EIA going forward as ‘stage 2’ of its plan.
Frustrations aside, we are where we are, and the ‘stage 2’ proposals are still significant in themselves, including to a government wanting to lift its low environmental run-rate.
And like other reforms on the government’s legislative wish list, they won’t see the light of day without a cross-party deal in the Senate to pass them.
Is there a Senate deal in the offing?
The Senate Environment Committee was due to report on EPA and EIA bills on 19 August, with debate scheduled soon after. But the report has now been pushed back to 9 September.
Perhaps negotiations are already underway and need more time, but it’s more likely that the government had bigger fish to fry first and simply needed to free up some political bandwidth.
In any event, the government will want a deal on EPA in particular, as it implements an election promise. To land a deal, the government needs either to win over either the Opposition; or the Greens plus three out of nine other senators.
If the government bargains with the Opposition, the main target would be the EPA, which the Opposition see as imposing more bureaucracy on environmental approval processes that are already seen by many as cumbersome and duplicative of state laws.
The Greens on the other hand will more likely push hard for a totemic environmental reform.
Top of the list is the inclusion of a ‘climate trigger’ (ie. regulation of high-emitting development projects) in Australia’s national environmental law, the Environment Protection and Biodiversity Conservation (EPBC) Act. A national phase-out of native forest logging would come a close second.
Either way, a deal almost certainly means giving the Opposition or Greens a headline. Worse, a deal with one lot exposes the government to pre-election attack from the other.
So, the government could settle for ‘no deal’ and blame a recalcitrant Senate. But that too exposes the government generally, and Tanya Plibersek in particular, to charges of promising high, in the form of the Nature Positive Plan, and delivering low.
Look at the stakeholders
In thinking about whether there’s a way through the political maze, it’s worth taking a look at what major stakeholders have been saying in their submissions to the Senate environment committee, to see if they offer ideas that might provide the policy narrative for a deal.
On the environment side, this means looking at the views of environment groups, both the big campaign-based NGOs, Australian Conservation Foundation and WWF, along with expert groups like the Biodiversity Council*. On the industry side, this means looking at the Business Council of Australia and the Minerals Council of Australia in particular, but also the Urban Development Institute and the National Farmers Federation.
I’ve also looked at a couple of other submissions: the WA Chamber of Commerce and Industry, because of the significant role played by WA-based interests in delaying the Nature Positive Plan; and a couple of smaller players, because they had interesting ideas.
This is a valuable exercise because both sides focus on the same themes, but have opposing expectations.
What are environment and business groups saying?
There are two basic lines from environment groups. First, the EPA and EIA should be fully independent of government, not just (as they see it) semi-independent. There’s too much risk of being under the government’s thumb.
Second, having an EPA and EIA is fine, but it won’t change things on the ground. However, there are other Nature Positive Plan reforms that would deliver on-ground change, and which could be promoted into the current package from the slow-track ‘stage 3’, such as providing for new National Environmental Standards.
Even better, they argue, you could give us something we’ve long wanted, but which the government has never put on the table, a climate trigger.
Business has almost the opposite narrative:
First, they say they’re glad the government put most of the reforms on the slow track, because they weren’t ready.
Second, they claim the government is creating an EPA with too much power and too little accountability; in particular, the big decisions about whether to approve major development projects require a balancing of competing economic, social and environmental factors; only government should be making these decisions because only government can make, and be properly accountable for, the necessary trade-offs.
Finally, business won’t have a bar of a climate change trigger, which they see as both heavy-handed and outdated in light of other climate laws and policies.
And the path through the maze is…?
Is there a path through the political maze?
One common thread is that everyone seems to be in favour of ‘better protecting the environment’, although they can’t agree on what that means or how it should be done. So we can all agree on … bland generalisations. That’s no help.
What about precedents? If we look at the government’s deal with the Greens last year on the Nature Markets bill (to enable markets in biodiversity), the government sacrificed one key element of the reform — the inclusion of markets in biodiversity offsets, known a ‘compliance markets’.
It also gave the Greens a headline win by bringing forward one of its other reforms, wider federal jurisdiction over mining projects with impacts on water, a reform that was unconnected with markets.
This suggests the government might concede a headline win (and some policy ground) in return for a deal, but only one of modest size. (The Greens were targeting unconventional gas projects in the Beetaloo Basin in the NT in particular. As an aside, this modest win now seems more significant given the recent change of government in the NT.)
Which comes first, policy or politics?
As the federal election looms on the horizon, the government has three broad choices on its environmental law reform agenda.
‘No deal’ opens it to a Greens attack of failing the environment and to Opposition attacks of environmental bumbling.
A Greens deal would probably cost either new laws on climate change impacts or an end to native forest logging, both of which may prove a bridge too far for Labor.
That leaves a deal with the Opposition. There is a potential deal here, under which the EPA would still go forward, but shorn of its role in environmental approvals and with boosted accountability measures.
The Opposition could claim a ‘common sense’ victory on behalf of business, while Labor would still claim a headline by delivering its promised ‘tough cop on the beat’ to enforce existing environmental approvals.
Labor would hope that this scaling-back of the EPA would be lost in the wash, but if pressed, it could defend the deal by arguing that it hadn’t abandoned the EPA’s approval role, but simply deferred it to stage 3.
So, there’s a win here for common sense and mainstream politics, just ripe for the picking, right?
For the major parties, maybe. For everyone else, it would be pretty-much business as usual, including for the environment, which would continue its inexorable decline …
*Disclosure: the author is a member of the Biodiversity Council
Banner image: Searching for good environmental policy outcomes in difficult political maze.
(Image by LoggaWiggler from Pixabay)
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