Can Labor reform Australia's environment laws? | Insiders On Background

Key Concepts

EPBC Act (Environment Protection and Biodiversity Conservation Act 1999): Australia's primary national environmental law, which the current legislation aims to reform.
Matters of National Environmental Significance (MNES): Key environmental assets and values protected under the EPBC Act.
Ministerial Override Power: A provision allowing the Environment Minister to approve projects that have been rejected through the environmental assessment process, under specific circumstances.
National Environmental Standards: Regulations and guidelines to be developed under the new legislation to ensure consistent environmental protection.
Bilateral Agreements: Agreements between the Commonwealth and state/territory governments to streamline environmental approvals, aiming for a "one-stop shop."
Regional Forest Agreements (RFAs): Decades-old agreements that exempt certain forestry activities from the EPBC Act.
Continuous Practice Exemption: An exemption in existing law that allows for ongoing deforestation activities without full environmental assessment.
Safeguards Mechanism: A separate policy mechanism for managing industrial greenhouse gas emissions.
Carbon Credits: Financial incentives for activities that reduce or sequester carbon emissions.
Productivity Round Table: A forum where various stakeholders identified the need for environmental law reform to boost productivity.

Environmental Law Reform in Australia: Balancing Protection and Progress

This discussion centers on the Australian government's proposed overhaul of environmental laws, aiming to expedite approvals for housing, mining, and energy projects while simultaneously enhancing environmental protection. The legislation, a substantial 1400-page document, is seen as a necessary step to address long-standing issues with the EPBC Act, which has been criticized for being ineffective in protecting the environment and for causing significant delays in project approvals.

The Need for Reform: A System in Crisis

1. Ineffective Environmental Protection:

Historical Context: Reviews of the EPBC Act, including Professor Graeme Samuel's review five years prior and earlier reviews, have consistently found that the laws are not working to protect the environment.
Degradation: The environment has continued to degrade during the EPBC Act's existence, with Australians experiencing these impacts increasingly each year.

2. Project Approval Delays:

Renewable Energy Projects: Many critical renewable energy projects are facing approval delays of up to nine years due to the complexity and overlap of Commonwealth, state, and local planning laws.
Accumulated Backlog: Projects have been accumulating in the approvals pipeline, exacerbating delays.

3. Economic and Social Impacts:

Housing and Infrastructure: The current laws are seen as holding up housing development and other essential projects.
Productivity: Former Treasury boss Ken Henry argues that fixing environmental laws is crucial for Australia's productivity.

Key Provisions and Controversies in the Proposed Legislation

1. Ministerial Override Power:

Mechanism: The legislation includes a provision for the Environment Minister to override decisions and allow projects to proceed, even if they are initially rejected, in rare circumstances.
Dissonance: This power creates a tension between the goal of protecting Matters of National Environmental Significance (MNES) through environmental standards and the potential for political intervention.
Justification: The Minister has indicated this power would be used for matters of national defense or national security.
Clarification Needed: There is a debate about whether the criteria for overriding standards need to be more specific, particularly concerning fossil fuel projects (coal and gas). Ken Henry suggests that fossil fuel projects might not warrant overriding environmental standards due to their inherent environmental impact.
Trust in Future Ministers: The reliance on ministerial discretion raises concerns about consistency and fairness across different administrations.

2. National Environmental Standards:

Purpose: These standards are intended to ensure that MNES are protected and to provide clearer guidance for decision-makers.
Development: The standards will be developed after the law passes and will be subject to intense scrutiny.
Codification vs. Standards: While some argue for codifying standards directly into legislation for greater certainty, others believe that well-developed standards, created through transparent consultation, could be sufficient. There is a possibility that standards could be written into law at a later stage.

3. Climate Change Impacts:

No Climate Trigger: The legislation will not include a specific "climate trigger" to reject projects based on their emissions profile. Emissions will be managed through the Safeguards Mechanism.
Interconnectedness: Ken Henry highlights the scientific link between climate and nature protection, noting that achieving net-zero by 2050 requires the Australian landscape to sequester significantly more carbon, which is impossible if the environment continues to be degraded.
Land Clearing and Deforestation: The proposed law's effectiveness in addressing deforestation is questioned.

4. Deforestation and Land Clearing:

Exemptions: Two significant exemptions hinder efforts to combat deforestation:
- Continuous Practice Exemption: Allows ongoing deforestation activities without full legal application.
- Regional Forest Agreements (RFAs): These decades-old agreements exempt forestry activities from the EPBC Act.
Argument for Removal: Ken Henry strongly advocates for removing the RFA exemption, arguing that forests are critical for biodiversity and that their protection is essential for any meaningful environmental law.
Impact of Removal: Removing the RFA exemption would have a significant positive impact on protecting forests that provide habitat for threatened species like koalas and greater gliders. However, in areas already severely degraded, the impact might be less pronounced.
Standards vs. Legislation: While the Minister suggests these issues could be addressed through national environmental standards, Ken Henry believes it would be more robust if addressed directly in the law.

5. Bilateral Agreements and Streamlined Approvals:

Aim: To create a "one-stop shop" for environmental approvals by establishing bilateral agreements between the Commonwealth and states/territories, reducing duplication.
Concerns: Ken Henry expresses significant concern that this streamlining, particularly if state governments have less stringent environmental oversight, could lead to the approval of environmentally damaging projects, citing the Browse Basin gas field and Queensland coal mine expansions as examples. He emphasizes that if accredited state processes lead to unacceptable damage to MNES, the legislation would lose its integrity.
Underlying Issue: The delays are not solely due to duplication but also the uncertainty and lack of guidance in existing laws. The proposed legislation aims to clarify these issues.

Perspectives and Arguments

Ken Henry's Stance: A strong advocate for fixing environmental laws to benefit both nature and productivity. He believes the proposed legislation provides a framework to work with but emphasizes the need for clarity, particularly regarding the ministerial override and the handling of deforestation. He is cautiously optimistic about the potential for better outcomes if implemented effectively.
Government's Confidence: Environment Minister Murray Watt is confident that the legislation can be passed by the end of the year, requiring support from either the Coalition or the Greens.
Productivity Round Table: The consensus from this round table was that environmental law reform was a priority for improving productivity. The failure to pass this legislation would undermine the significance of that discussion.

Data and Statistics Mentioned

1400 pages: The approximate length of the proposed legislation.
9 years: The potential delay for renewable energy projects under the current system.
Two and a half times: The projected increase in carbon sequestration required from the Australian landscape by 2050 to achieve net-zero emissions.
176,000 hectares: The size of the proposed Great Koala National Park in New South Wales.

Logical Connections and Synthesis

The proposed legislation attempts to reconcile two seemingly opposing goals: environmental protection and economic development. The core argument is that the current EPBC Act fails at both, causing environmental degradation and hindering crucial projects. The reform aims to create a more efficient and effective system by:

Establishing clear National Environmental Standards: To provide a consistent baseline for environmental protection.
Streamlining Approvals: Through bilateral agreements to reduce duplication and speed up processes.
Addressing Deficiencies: By tackling issues like the RFA exemption and continuous practice exemptions.

However, the legislation's success hinges on the careful implementation of these provisions, particularly the ministerial override power and the development of robust standards. The debate highlights the inherent tension between political expediency and long-term environmental stewardship. Ken Henry's perspective underscores the need for specificity and transparency to ensure that the legislation genuinely delivers on its promises, rather than becoming a mechanism for further environmental compromise. The success of this reform is seen as critical for Australia's future environmental and economic well-being, as evidenced by the strong consensus from the Productivity Round Table.

Conclusion

The proposed environmental law reform in Australia represents a significant attempt to modernize a system widely acknowledged as failing. While the legislation offers a pathway towards faster project approvals and improved environmental outcomes, its effectiveness will depend on the clarity of its standards, the responsible exercise of ministerial powers, and the commitment to addressing critical issues like deforestation. The success of this reform is crucial for Australia to meet its environmental and economic aspirations.