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The need for speed: can we buy faster environmental approvals to enable Australia to become a clean energy superpower?

by | May 23, 2024 | 0 comments

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It’s been a tough couple of months for Nature in Australia.

In April, federal environment minister Tanya Plibersek shunted most of the reforms in her Nature Positive Plan onto the slow track, although she will still proceed with a new federal Environmental Protection Agency (EPA). This new body will issue and enforce environmental approvals.

Meanwhile, there were slim pickings for the environment portfolio in May’s federal Budget, especially given one of the larger measures, $121 million for a new EPA, had already been announced last year.

However, this doesn’t mean there’s nothing going on, environmentally.

The centrepiece of the Budget was the Future Made in Australia program, a $22.7 billion program designed to transform Australia into a ‘clean energy superpower’. Although aimed mostly at the economy, the program would deliver indirect environmental benefits, by facilitating our existing emissions-reduction targets of 82% renewables by 2030 and Net Zero by 2050, targets on which we have fallen behind significantly. And our ‘superpower’ exports would also facilitate emissions reduction abroad.

Need for speed

Achieving a ‘future made in Australia’ rests on building new industries and infrastructure at unprecedented speed. This in turn depends on securing quick environmental approvals for new mining and infrastructure projects.

That means we have a single point of failure in an area in which we have traditionally performed pretty poorly. Slow approvals and duplicatory federal and state approval requirements are long-standing industry bugbears, described recently by one CEO as ‘reams of red tape’. And the federal Auditor-General has been highly critical of federal approval processes.

As a result, environmental approval systems have been the subject of various reform proposals, most recently in the federal Samuel Review (2020) and the WA Vogel-McFerran Review (2023).

WA has begun implementing its response to its review, legislatively and otherwise, but given that the Nature Positive Plan reforms are mostly on the slow track, the feds are limited to the budgetary measures for the time being.

Hence the allocation in the Budget of a small but important slice of the Future Made in Australia program, $134.2 million over four years, to streamlining environmental approval decisions, especially for renewables and critical minerals projects.

This includes $19.9 million to assess priority renewable energy projects; $65.1 million to gather additional threatened species data (to save gathering the data once approvals are sought); and $24.5 million for better planning in seven priority regions, so that it’s clearer to business where development can or can’t occur.

This need for a rapid transition to clean energy has put environmental impact assessment (EIA) front and centre. By the way, that’s not just here, but around the world.

Hold your horses, it’s not that simple

But how easy is it to speed up an environmental approval process?

While it’s easy enough to throw money at regulators for more staff, there are underlying problems that are much harder to shift.

The first of these is a lack of data. Having the right environmental data at hand makes for faster decisions, as it saves having to collect it during the assessment process. (It also makes for better decisions, killing a second bird with the same stone.)

However, we’re coming from a long way behind. Australian governments agreed to pool environmental data over 30 years ago, but those commitments have languished. The government’s decision to establish and fund Environment Information Australia is thus long overdue, but environmental data doesn’t grow on trees. It will take sustained data-gathering effort, supported by sustained funding and strong intergovernmental cooperation, to make a real difference here.

Next, regulators could issue a lot more guidance. But this too is easier said than done, especially at the federal level, where the government is proposing significant changes to the system. That puts everyone on a learning curve. What’s more, good guidance requires good consultation, and that’s time-consuming.

But the most important underlying problem is that EIA resembles a lopsided tennis match between applicant and regulator.

It’s lopsided, because the assessment ‘ball’ is, on average, in the applicant’s court for more than three quarters of the total assessment time. That’s because applicants have to do most of the work, gathering data, undertaking consultation and addressing likely environmental impacts.

And in this game of regulatory tennis, there are frequent appeals to the umpire (that’s us, society).

Applicants complain, not just of red tape, but even of deliberate delay, through spurious information requests that ‘stop the clock’. Equally, assessment officers complain about everything from poor-quality documentation from proponents to more concerning attempts to game the system, for example by pressuring officials to make an approval ‘consistent’ with earlier decisions, rather than with official policy.

Fixing the problems will require significant effort from players on both sides of the regulatory net. Indeed, because applicants do most of the work, it’s possible that speeding up approvals may require more effort from them than from government.

What else can we do?

Apart from hiring more staff, gathering data and issuing more regulatory guidance, we can better manage the regulatory process itself.

This is where case management, also called project facilitation, comes in.

The underlying idea, that professionals and agencies with differing skills or roles should collaborate to deliver a complex and integrated outcome is not new, and governments have already applied it to projects involving EIA. In Queensland for example, the Coordinator General coordinates environmental approval of major projects, while WA, following a Vogel-McFerran recommendation, is establishing a case management office in the EPA, including an escalation protocol to address delay.

There’s more juice in the efficiency lemon

But if we are going to transform the Australian economy in the next couple of decades, without weakening environment protection, I think we are going to have to go further in squeezing more juice from the efficiency lemon.

In fact, I think we have to look outside the square, to an unlikely source: not to another EIA system, but to the courts, where there has been a case management revolution over the last 40 years.

In the bad old days, cases used to drift along in the courts and stories of litigation long in the tooth were legion. The problem was that the courts were purely reactive, leaving it to the parties — or in reality their lawyers — to manage litigation. For various reasons, lawyers were often in no particular hurry.

But things began to change in the 1980s, when courts became increasingly proactive in managing litigation.

Take the Federal Court’s ‘docket system’. The secret is that the court assigns new cases to the ‘docket’ of a particular judge as soon as the claim is filed. This judge then uses ‘directions hearings’ to keep the case moving through the system. If the parties don’t follow these directions, the judge can impose sanctions.

Out of the box – assign a convenor

What if EIA worked on a docket system? I’m not suggesting we ‘judicialise’ the new federal EPA, but that we leverage the convening and directing power of a body that could have, like the courts, independent authority and high expertise.

It would work like this. Leave the EIA staff in the environment department. Instead, give the EPA a skilled board and small team of senior practitioners, expert in environmental assessment and project management. Call them ‘convenors’.

When a proponent sought an environmental approval, the EPA would assign the application to the ‘docket’ of a convenor, who would meet the applicant and the environment department to plan the assessment.

This convenor would then issue, not just the usual directions about the scope and content of the assessment, but an assessment plan. The convenor would then work with the parties during the assessment process, dealing with problems and issuing directions as needed.

This EPA would need teeth. If an applicant disobeyed a direction, the convenor’s ultimate power would be to stop the assessment. If the environment department dragged the chain, the convenor’s ultimate power would be to name and shame the department publicly. Repeated naming would attract Parliamentary scrutiny.

Rapid EIA, without diluting environment protection — indeed, while meeting new national environmental standards — has now become a national priority. What was once a problem of red tape and substandard practice, of concern only to a few, is now central to the clean energy revolution and vital to our collective future.

Throwing money at the problem won’t solve it. Even more data and regulatory guidance won’t solve it, though of course it will make inroads.

Solving the problem completely, achieving complete regulatory efficiency and removing a major bottleneck to Australia’s transition to a carbon-neutral economy, will take something out of the box. That’s why I think we should be looking at the courts.

Banner image: Image by winterseitler from Pixabay

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