The government’s National Environmental Standards don’t do what you might expect
By Peter Burnett
Last month the federal government introduced the Environment Protection and Biodiversity Conservation Amendment (Standards and Assurance) Bill 2021 (the Standards and Assurance Bill).
The Standards and Assurance Bill is a follow-on to an earlier bill (the Streamlining Bill), which I’ve written about before (see Red Lines for Green Values).
The Streamlining Bill would amend the EPBC Act to ‘streamline’ environmental decision-making by enabling development approvals, following environmental impact assessment, to be devolved to states and territories. This idea used to be called the ‘one-stop shop’ approach but the government now calls it ‘single-touch approvals’.
The Standards and Assurance Bill provides for National Environmental Standards; it also establishes an independent statutory position of Environment Assurance Commissioner, tasked mainly with monitoring and auditing decision-making by states under devolved arrangements.
The standards should set hard environmental bottom lines, but if this bill goes through, they won’t. More on this in a minute, but first a little context.
Where are we going with this?
The government presents both bills as first steps in responding to the comprehensive reforms recommended by Professor Graham Samuel in his 2020 Independent Review of the EPBC Act.
While it is true that Professor Samuel envisaged the devolution of development approvals to the states as part of his reform package, it is quite a stretch to argue that these two bills are the first steps of a comprehensive reform process, for several reasons.
The most significant reason is that the government has not tabled a response to the Samuel Review and so we have no idea what the government’s environmental reform agenda is, if indeed it has one.
If these two bills are the first steps, then they are steps towards a secret, perhaps even unknown, destination. All we know about the government’s intentions is that its policy narrative on environmental reform has rarely strayed beyond its ‘cutting-green-tape’ mantra of regulatory efficiency.
Stuck in the Senate
But back to the two bills. The Streamlining Bill got stuck in the Senate after three crucial cross-benchers opposed it, not because they were fundamentally opposed to devolution, but because they wanted to be satisfied that devolved approvals would be made properly.
At that point, in November 2020, the government had tabled neither the Samuel Review, nor the template for bilateral agreements setting out accreditation arrangements. In other words, it was asking the Parliament to take it on trust (see Trust us? Well let’s look at your record.)
The government then introduced the Standards and Assurance Bill in February 2021. Environment minister Sussan Ley presented the Bill as a step in the reform process but, in the absence of a broader vision from the government, it’s hard not to see the Bill as an attempt to get the Streamlining Bill over the line by responding to cross bench concerns.
At first blush, the Standards and Assurance Bill does advance two key recommendations from Professor Samuel.
The problem is, that’s all it does. It’s very concerning that the government is resorting to a piecemeal approach to legislative reform.
With yet more horrific environmental news emerging in recent weeks (see ‘Existential threat to our survival’: see the 19 Australian ecosystems already collapsing), the government’s approach is mystifying: they just don’t seem to get how urgent the need for action is, or don’t want to.
When is a standard not a standard?
As to the Standards and Assurance Bill itself, it’s the provisions on the standards that worry me.
In fact, I don’t think the ‘standards’ are standards at all. If standards for decisions are set by law, you’d be forgiven for expecting that an environmental approval that failed to meet the standards would automatically be invalid and that an interested party could get a court decision to that effect.
Not so with these standards. Here, compliance with standards will be a subjective question for the decision-maker. And the question will not be about compliance, but inconsistency. In other words, the question for the federal environment minister, or an accredited state decision-maker, won’t be ‘have I complied with the standard?’ but ‘in my opinion, is this decision not inconsistent with the standards?’
Because the question of inconsistency is made a matter of opinion, the courts will tend to uphold any decision based on that opinion, provided there is a rationality of some sort to it, because the courts are extremely reluctant to substitute their opinion for that of a statutory decision-maker.
This is particularly the case when one reads on in the bill and discovers that, in forming her or his opinion about inconsistency, the decision-maker can have regard to federal or state policy, plans, programs or spending decisions, indeed anything that might conceivably be relevant.
Lowering the bar
This opens up a giant back door to ‘trade-off’ decisions, the very antithesis of meeting standards.
The explanatory memorandum tabled by the government gives the example of a decision-maker approving impacts on the values of a National Heritage place if those impacts are ‘balanced by mechanisms that promote those values (which may, for example, be delivered through funding of activities by a state relating to the promotion of those values)’.
I have my own examples, hypothetical of course.
The federal environment minister might decide that a decision to demolish part of the Australian War Memorial (a National Heritage place) is ‘balanced’ by a government decision to spend a lot of money on building a new exhibition hall. Thus a standard that says the fabric of heritage buildings should be conserved could be met by demolishing some of that fabric!
Or a state minister might decide that the loss of a population of a critically endangered species is ‘balanced’ by an investment in research on the species, even if the standard says that all populations of critically endangered species should be maintained.
Note that these ‘balancing’ decisions would not required to comply with federal offsets policy, even though they are offsets by another name. So the bill opens a possible reduction in standards.
And just in case a nervous state decision-maker thought they couldn’t come up with a ‘balancing’ state policy, plan, program or spending decision (hardly likely), they can apply to the federal minister for an exemption in the ‘public interest’! Perhaps states will resort to this if they want to approve a controversial development and shift the environmental blame to Canberra!
But wait, there’s more
As if this wasn’t enough, the minister said in her second reading speech that the initial set of standards would reflect the existing EPBC Act, ie she will ignore the standards recommended by Professor Samuel, even though she’s had them since 30 October last year. The problem with the existing standards is that they are all either process driven, or so broad that only the most extreme decision would contravene them.
Moreover, once the states are accredited under existing standards, they, and development interests, can be expected to push back hard against any proposals to tighten the standards, probably relying on arguments about moving the goal posts and costing jobs.
Standards in name only
It all boils down to this: if the Standards and Assurance Bill is passed, the standards we will get will be standards in name only. They won’t be a step forward, but backwards.
Cross-benchers looking to be satisfied that devolved approvals would protect the environment are surely facing disappointment.
Postscript: The Senate Environment and Communications Committee is conducting an Inquiry into the Standards and Assurance Bill. Submissions are due by 25 March. See: https://www.aph.gov.au/Parliamentary_Business/Committees/Senate/Environment_and_Communications/Protectionandbiocon