Sustainability Bites

The Government’s ambitious ‘Nature Positive’ initiative appears to have founded on the rocks of realpolitik. Peter Burnett has been closely following the saga of Nature Positive policy reform and believes while the chances are small that legislation establishing an EPA and EIA will be passed before the next election, they are not zero. Indeed, as he explains here, there is a credible pathway that might enable the reforms to be acceptable to all parties and still achieve significant environmental outcomes. This might be critical if the Government wants to burnish its rather dull environmental credentials as it heads into what is expected to be a tight electoral race.

Last month, in the dying days of Parliament for 2024, environment minister Tanya Plibersek reportedly did a deal (‘the Plibersek deal’) with the Greens and several cross-benchers to pass stage two of her ‘Nature Positive’ reforms to Australia’s national environmental law.

As proposed by the government, these reforms would establish twin environmental institutions, a federal Environmental Protection Agency (EPA) and a new body for collecting and analysing data, Environment Information Australia (EIA). The deal apparently involved adding provision for the minister to make environmental standards, something the government was already committed to.

It also included something on logging in native forests. We don’t know what that was, although it is said to have fallen short of the ban sought by the Greens. I’ll hazard a guess that the deal involved applying the new environmental standards to forestry, though possibly only to new, rather than existing, operations.

Whatever the content of the deal, it quickly came to the attention of Western Australian Premier Roger Cook, who called Prime Minister Anthony Albanese to express his strong concerns. Albanese then scuttled the deal in a meeting with the Greens, breaking the news to Plibersek after the event.

Not much to sing about

‘Tanya’s pretty mad’ said a source to the Australian Financial Review. I’ll bet she is. Apart from the humiliation of having the shots on national policy called from Perth, the failure of the Nature Positive reforms leaves ‘Back on Track in the Murray-Darling’ as the only recognisable tune on Plibersek’s ‘greatest hits’ environmental playlist. That’s not nearly good enough for someone of her talent and seniority.

In the wash-up, and despite the fact that Parliament will probably sit for three weeks in February and March before Albanese calls the federal election, the Greens environment spokesperson Sarah Hanson-Young says the prospects for the Nature Positive reforms are now grim.

Hanson-Young is almost certainly right, if for no other reason than two of these three sitting weeks fall during the WA state election campaign, which Albanese will not want to contaminate with federal distractions.

But is there still a glimmer of hope for a deal in the single (and likely last) Parliamentary sitting week in March? Despite the slim prospects, I’m feeling a little whimsical as the year winds down, so I thought I’d take a speculative look.

A quick refresher on Nature Positive

If you’re reading this you are probably familiar with the back story, but just in case I’ve managed to attract a new reader, Tanya Plibersek announced her sweeping Nature Positive Plan reforms with great fanfare almost exactly two years ago, in December 2022. The reforms contained a fair dash of policy ambition, but unfortunately, it’s been all downhill from there.

The consultation process was drawn out and marked by several changes of approach, ultimately leading to a much-criticised series of ‘secret’ sessions in which selected stakeholders (including myself as a member of the Biodiversity Council) were shown prototypes of various policies and laws.

Strangely, we were not allowed to copy the consultation documents, even though we were completely free to discuss what we had seen.

All of this generated a lot of frustration. Those ‘in the room’ complained about many hours spent either copying out material, or making extensive notes from memory.

For my part, the sessions reminded me of the high school exam room, complete with invigilators who issued instructions that although we could make notes, we could not to copy slabs of text word for word. (And, just like high school, this seems to have prompted some ‘naughty students’ among us to do just that!)

Meanwhile, some who were not in the room complained, naturally, about being excluded. Various people fed the media with lines about these ‘secret consultations’. If the process had been designed to frustrate media commentary, it backfired.

Then, about this time last year, the government made the call that there was not enough time left in the Parliamentary term to legislate the full package of reforms. It decided to legislate only to establish the EPA and EIA, labelling these bills retrospectively as ‘stage 2’ of the reform process.

Laws already passed, to enable markets in biodiversity, were now said to have constituted a successful ‘stage 1’, while everything else, the great bulk of the reforms, was relegated to a new ‘stage 3’ and shunted onto a slow track, which now turns out to have been a siding.

Off the rails

Now introduced in Parliament, the EPA and EIA bills drew a torrent of criticism. Much of this concerned things that were not in the text: the poor consultation process, the missing stage 3 reforms, and the absence of things the government had never signed up to, particularly a so-called ‘climate trigger’, which would require developers to meet climate-related requirements in seeking development approvals.

As to the content of the bills themselves, the key criticisms related to the proposed EPA. Environment groups criticised the fact that the government had watered down the original independence of the EPA, supposedly on an interim basis, to make it a mere delegate of the minister. Industry groups had the opposite concern, that the EPA, lacking the policy discretion and political accountability of the minister, would make unaccountable and economically-harmful decisions on environmental grounds alone.

In short, the EPA and EIA bills had no friends. Despite that, it seems that Tanya Plibersek found a path to a deal, which fell only at the final, prime ministerial, hurdle.

Is there another path to a deal?

Given that Plibersek has found a path to a deal once, might she try again, with success this time? The odds are very much against this, but let’s see if there’s a scenario for success.

First, the WA election has to be out of the way, meaning that any deal has to be introduced and passed in the three sitting days 25-27 March. This is doable, although at the political cost of the Opposition and others crying foul about secret deals and lack of consultation.

In fact, it’s been done before, as you can see in my blog on the manoeuvring that secured the passage of the Nature Repair Act in 2023.

The bigger hurdle, however, is policy substance. Given that the Plibersek deal did not gain the Albo seal of approval, but the Greens have said there’ll be no more concessions, there’s an impasse, right?

I think the Greens will hold the line on any further weakening of what was already a much watered-down package. But might there be options for a federal EPA that Labor, the Greens and other pro-environment senators could support because they are different, rather than stronger or weaker?

One option that strikes me is to change models and adopt the WA EPA model for development assessment and approval, federally. Policy-wise, the WA model is a good one. The EPA has a board, which helps to guarantee its independence. While the WA is not a decision-maker, and only advises government, its advice is published and governments must defend any decision that departs from EPA advice. This helps maintain both scientific rigour and political accountability.

Politically, this model would give each side a win: stronger EPA independence and transparency for the environment side; political control of trade-offs for the industry side.

And it would be hard for WA Premier Cook to criticise the adoption of his own model. Of course, the government would take a hit for abandoning key elements of their own reform, but they might find a major environmental policy win just before an election tastes sweeter overall.

But could there be a deal on forests? Albanese is desperate to hold every marginal seat, not just those in WA, where forestry is no longer an issue. In particular, Labor has two seats at risk in Tasmania, where forestry is big.

It’s harder to speculate here, because we don’t know the detail of what the Plibersek deal said about forestry.

But there are well established precedents for dealing with the impact of government policy on existing industries. These involve ‘structural adjustment’ packages, covering financial compensation, retraining for workers and even support for new industries. If a structural adjustment package were generous enough, it might offset the political negatives.

So, I think there’s still a path to a deal on ‘Nature Positive’, but only if the PM wants it.

Does he want it? Probably not, but ‘no deal’ means taking Labor to the election without much of a story to tell on protecting the natural environment.

Banner image: The Government’s ambitious ‘Nature Positive’ initiative appears to have founded on the rocks of realpolitik. However, there is a credible pathway that might enable nature reforms to be acceptable to all parties and still achieve significant environmental outcomes. (Image by David Salt)