There is no such thing as a free lunch
The Albanese government is now the latest in a string of governments that have tried and failed to reform the law known formally as the Environmental Protection and Biodiversity Conservation (EPBC) Act. This is despite two major independent reviews calling for wholesale change. Labor’s capitulation does not, however, change the facts. Australia’s natural environment is deteriorating rapidly. Laws are urgently needed to protect our nation’s valuable natural assets.
For policymakers, this suggests environmental laws should define minimum viability thresholds. Some thresholds would be absolute; others would be crossable in one location provided equivalent restoration was done in another. Environmental groups could take satisfaction that thresholds would be maintained in most cases. Ecosystems would function, rivers would flow. But governments would still override thresholds for important economic and social reasons, say to approve a critical minerals project. What’s in it for corporate Australia? Business would gain upfront certainty about what can be approved and quicker approvals for projects. Environmental litigation would fall. But development options would be narrowed and offsets would become more expensive. The government would achieve a key goal: major environmental reform. But it would have to say no more often, and be transparent about crossing environmental thresholds.
The unwritten rule of environmental policy is that economy trumps environment. ‘Nature positive’ reforms threaten to put it the other way round, or at least to shift the dial in that direction. And the states (beginning with Western Australia) are not happy about it. Crunch time is approaching.
Proposals for regulatory streamlining, and for the alignment of federal and state environmental assessment laws have been floated at various times over the last 30 years. Graeme Samuel’s review recommended a harmonising of both environmental processes and outcomes between federal and state jurisdictions. To do this we need to: Develop national standards; build a risk-based decision-making system; accredit states to take most of the decisions.
The pathway could lead to anywhere or to nowhere in particular. There is no vision, no sense of where the government wants to go in terms of substantive policy, beyond the barebones commitment to moving to standards-based decisions.
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. It looks like they’ve failed but their machinations behind the scenes bear scrutiny.
While it’s possible that we’ll get a reasonable set of National Environmental Standards out of the current national environmental law review, because talk and even laws are cheap, it’s much less likely that governments would implement them effectively, if left to their own devices.
I was shocked again to find that even though the Bill had lapsed, the bumblebee proposal was later considered by a Senate Committee, which supported the idea unanimously! Even Senator Whish-Wilson of The Greens supported it!
At this stage then, the likely scenario is that Professor Samuel’s final report in October will make strong recommendations for National Environmental Standards and supporting measures, but that the Government will pre-empt that by securing passage pf EPBC Act amendments that will see States accredited to make the Prime Minister’s ‘single touch’ development decisions on the basis of ‘interim’ standards by Christmas.
After years of substantive policy inaction it seems the government wants to set a new land-speed record for environmental reform.
We badly need a national conversation on protecting the environment, but will we get one?
At the end of the day, every piece of law is only as good as its implementation. If the government is failing in its duty of care for the nation’s natural heritage then we should be holding the government to account, not blaming the law that is supposed to protect that heritage.
Is there a tangle of ‘green tape’ out there that needs to be ‘busted’? What about an environmental conspiracy to bog down coal mines and other development projects in litigation? Or are we witnessing another round in the seemingly endless political struggle to control the environmental policy agenda?
Could we, in the name of curing the current big corona crisis, end up accelerating the next big crisis, brought on by environmental decline?
The review found that only 2.7% of the 6000 referrals considered under the EPBC Act have been for agriculture. This is a striking statistic given nearly 90% of all land clearing in Australia is for agriculture.