Can governments be trusted to set and enforce effective environmental standards?
By Peter Burnett
Can Governments be trusted to set and enforce effective environmental standards? By ‘effective’, I mean standards that protect the environment to the point of halting long-term environmental decline?
I’m asking this question because in the current debate about reform of Australia’s national environmental law, the EPBC Act, environment minister Sussan Ley is saying ‘trust me’ on two major issues, both arising from Professor Graeme Samuel’s Independent Review of the EPBC Act.
First, she is rushing through a small but controversial set of legislative changes while promising more extensive reforms to come.
These initial changes are about reducing duplication and ‘green tape’ by introducing ‘single touch’ environmental decisions. They are posing as the first tranche of reform but are in fact a recycled version of the Abbott government’s ‘one stop shop’.
Second, the Government has rejected the recommendation of the Independent Review that there should be an ‘independent cop on the beat’ to regulate States accredited to make ‘single touch’ decisions. Without such a regulator, it would be up to Minister Ley to call to account any State making decisions that didn’t comply with Samuel’s proposed National Environmental Standards.
Unfortunately, I don’t think the government can be trusted on this. But it’s not about anyone’s personal qualities. It’s about the politics. I base my argument on two examples, Regional Forest Agreements (RFAs) and the Environment Restoration Fund (ERF).
Trust us on the forests
RFA’s were developed in the 1990s as the solution to the ‘forest wars’, especially over the harvesting of old growth forests to produce wood chips. The idea was that, following an environmental assessment, Federal and State governments would produce a 20-year plan, in the form of an RFA, for each forestry region.
There are 10 RFAs across southern Australia. Each one identifies areas for harvest and sets out how the State will conserve ecological values such as threatened species. In return, the Commonwealth grants export licences for forest products covered by the RFA and exempts forestry in RFA areas from the need for development approvals under the EPBC Act.
In 2006 Bob Brown challenged a Tasmanian RFA on the ground that Forestry Tasmania were failing to deliver the protection required by the RFA for several threatened species. He won the initial challenge but lost on appeal.
The interesting point however is not who won or lost but what happened between the initial case and the appeal.
Obviously the Federal and Tasmanian governments were concerned that the appeal court would uphold Brown’s win. So they changed the wording of the RFA. Instead of requiring that the species be protected (by applying agreed management prescriptions), the amended RFA specified that the establishment of the CAR (Comprehensive Adequate and Representative) Reserve System, together with the application of the agreed prescriptions, protected the species.
In other words, instead of requiring an actual environmental outcome, the RFA deemed the agreed inputs to be delivering the outcome.* The two governments were concerned that the law might require, not just that they take action, but that they actually achieve a result!
Trust us on endangered possums
Similar sentiments can be seen at play in the Leadbeater’s Possum Cases of 2018 and 2020, in which environment group Friends of Leadbeater’s Possum took VicForests to court, twice, arguing that the corporation was failing to comply with the RFA and that as a result it had lost its RFA exemption under the EPBC Act. (The cases also related to the Greater Glider.)
The cases are complex, but in brief the Court held that to maintain its EPBC Act exemption, VicForests had to conduct its forestry operations ‘in accordance with’ the RFA.
The first challenge failed because it was based on the failure of the Federal and Victorian governments to conduct, in a timely way, the five year reviews required under RFAs. The court said these reviews, though performing a ‘critical’ role in preserving the currency, appropriateness and effectiveness of the RFA, were not integral to forestry operations.
The second challenge was based on VicForests’ failure to comply to apply the precautionary principle, as required by the Victorian Code of Practice for Timber Production, in planning its logging activities. This time the challenge succeed, because the planning process was integral to forestry operations.
Again, the interesting point here is not so much the outcomes of the cases but the attitude of governments.
First, the Federal and Victorian governments were significantly late in conducting regular reviews of the RFAs. In fact, they missed the first one altogether. And, in playing ‘catch up’, they didn’t review the five Victorian agreements individually but rolled the reviews into one.
This creates a strong impression of initial neglect on both sides, followed by a scramble to get into compliance.
Second, rather than comply with the precautionary principle by undertaking serious on-ground monitoring work, VicForests relied on ‘desktop and other theoretical methods’ which the Court found to be flawed. In fact, the Court said that VicForests had prepared ‘defensive documents … suggesting VicForests felt obliged to have a policy addressing further protection for the Greater Glider, but was reluctant to implement it’.
Again, one is left with the strong impression that protecting the environment was far from the minds of those concerned.
Trust us on restoration
As I’ve written about the Environment Restoration Fund before, I’ll just recap briefly.
This $100m fund was announced in the 2019 Federal Budget, just before the election. The fund was presented as representing ‘practical environmental action’.
The government committed nearly 80% of the funds in the form of election commitments, ie. immediately, without calling for applications and without access to the usual expert advice about how to prioritise the spending for best environmental effect.
In other words, despite serious and ongoing environmental decline, the government’s ‘practical environmental action’ was, in reality, a pork barrel. When challenged about their approach in the Senate, the government’s main defence was that the Opposition did this sort of thing too.
So, who do ya trust?
I could go on, but in my view these two significant examples alone suggest strongly that governments, irrespective of political persuasion, or whether Federal or State, cannot be trusted to implement good environmental policy. Without ginger groups such as Friends of Leadbeater’s Possum to keep them honest, or Professor Samuel’s ‘independent cop on the beat’, they have a strong tendency to ‘talk the talk’ but not ‘walk the walk’.
The politics are just too hard.
With the RFA’s, I’m betting politicians still have an indelible memory of the timber trucks encircling Parliament House, like ‘Indians’ riding around the circled wagons in an old Western, even though this occurred more than 25 years ago. Once bitten, not just twice shy but pathologically averse to stirring up the timber industry.
With the ERF, the Morrison Government was widely expected to lose the 2019 election and perhaps this was an initiative born of desperation. The fact that it worked will only suffice as justification to the most rusted-on Coalition supporters. For the rest of us, it’s only helped to reinforce the widely held view that governments can’t be trusted.
So, 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.
Bring on Professor Samuel’s independent cop on the beat!
Image by Pixabay
*On appeal, the Full Federal Court said that the change was unnecessary and that, as a matter of interpretation, the original words only required the application of the agreed prescriptions and not the achievement of protection, but this is beside the point.