Environmental Law Reform [S1-04]

Show Notes

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Music: “Insurrection”
Written by Pierre Chrétien
Performed by the Soul Jazz Orchestra
Courtesy of Do Right Music Inc.

Transcript

William Sinclair
Welcome to Why Can’t They Just, looking at politics, policy and getting stuff done. My name is William Sinclair. I’m a Labor member. I’m a member of Labor Environmental Action Network and joining me is Janaline Oh.

Janaline Oh
Hi I’m Janaline Oh. I’m also a member of the Labor Party and a member of the Labor Environmental Action Network, and before we start, I would like to acknowledge that Will and I are both recording on traditional lands of First Nations people of Australia, and we would like to extend our respects to the elders, past and present, of the lands on which we are respectively recording, and also extend those respects to other First Nations people who might be listening.

William Sinclair
So today’s episode, recorded on the 24th of July, is focusing on the environmental laws which are in the news cycle right now as the Labor Party is trying to push through new EPA legislation. Janaline, could you just give us a bit of a background as to what’s going on, why there needs to be new EPA and EPBC legislation and what it all means.

Janaline Oh
OK, so first of all, EPA refers to what the Government called in a number of bills that they put forward last term that didn’t get passed Environment Protection Australia. EPA is variously referred to Environmental Protection authorities. The idea of an EPA is to have an independent authority that makes decisions about environmental impact, assessments of development projects.

In brief, the EPBC that you just referred to, Will, is the Environmental Protection and Biodiversity Conservation act. This is the main piece of federal environment legislation in Australia. It was passed in 1999 under the Howard government and it was passed to consolidate a lot of different pieces of legislation that dealt with environmental issues, and the idea was to bring together a more comprehensive approach to assessing development approvals with respect to their environmental impact.

Now, before we start, I’m sorry I’m going to have to bore everybody with just a little trip down the constitutional law lane and the reason for that, I’ll explain in a minute, but essentially under the Constitution, the Commonwealth doesn’t have unlimited powers to just legislate on anything. Section 51 of the Constitution outlines those areas in which the Commonwealth government is allowed to make legislation. All other areas are the province of the States and now the Territories as well, and the reason for that is because, of course, Australia is a federation of States.

Under the current under the Environmental Protection and Biodiversity Conservation Act, which for the purposes of this podcast, I will henceforth refer to as the EPBC, and we’ll put that acronym in the notes so that people can refer back if they forget what it means.

But under the EPBC, the Act only deals with what are called matters of national environmental significance. They include the implementation of international treaties, the management of issues that affect more than one State, so cross border issues or cross state issues and regulation of corporations. So the reason that’s important is because there are still a whole lot of areas where the Commonwealth doesn’t have jurisdiction and so federal legislation doesn’t cover them.

But having said that, because Australia has signed a lot of international treaties relating to the environment, most really important national environmental issues are covered by the Act, and that includes threatened species and threatened ecological communities. It includes World Heritage areas. It includes national heritage areas. It includes migratory species and a bunch of other species that are relevant to various international agreements.

The reason that’s important though is that because the EPBC was kind of cobbled together from a whole lot of existing legislation before the Government, before the Australian government signed up to a lot of these treaties. There is a lot of stuff in the current legislation where the Commonwealth kind of limits itself through the text of the legislation to, for example, only dealing with things in Commonwealth areas, which sort of means national parks and Jervis Bay. Obviously very, very limiting.

There are other areas where the Commonwealth is only able to deal with things with the cooperation of the States, which of course is our ideal outcome. Things are better if the Commonwealth and the States work together, but if a State doesn’t choose to cooperate, then it has made it very difficult for the Commonwealth to go ahead and do the things that it should otherwise be doing under the Act.

So the reason I’m going through this slightly boring introduction on constitutional law is because the outcome of all of this has been 25 years of continuing environmental decline. And this has been shown in successive State of the Environment reports and Australia holds the world record for the loss of mammal species. That is a pretty sad record to be holding, and I think the conclusion of a number of reviews of the environment laws has been that the laws are not doing what they were supposed to do. They are not protecting the environment. The other thing the laws are not doing is making things easier for business. So you know, in the old and, in my view, false dichotomy that says you either protect the environment or you make things easier for development. You would think that destroying the environment would have led to a much easier path for development. Actually, these laws have achieved neither, so it is both costly and cumbersome for developers, and it is not protecting the environment. So we need environmental law reform and we need very substantial environmental law reform.

William Sinclair
In terms of what’s making its way through the Parliament right now, what would you like to see in terms of environmental law reform in terms of a new EPA and in terms of reforms to the EPBC, what is the ideal outcome from an environmentalist perspective?

Janaline Oh
LEAN has been campaigning for many, many years for a proper environmental law reform, right? And among the elements that we’ve been looking for have been an independent environmental regulator and the reason that’s important is because, under the current laws, essentially the Minister has an incredible amount of discretion. One of the consequences of that is that powerful lobbyists who want to get a project through regardless of environmental consequence, are able to get political intervention to make that happen.

So this came clear a few years ago when it emerged that the owner of a farming property in NSW, which was clearing some threatened grass land that should have been regulated by the environment laws, was the brother of a senior Liberal Party minister, then in government, and had lobbied the Environment Minister to essentially allow the clearance of this grassland, even though it should normally not have been allowed. Now those sorts of things undermine trust. They destroy the environment, but they also make it difficult for other businesses, which are not so well connected, to get a fair hearing. So I think one of the things that we are hoping is that, if we have an independent environmental regulator, it makes that political interference a lot harder.

To carry out the second thing that we really want, which is also very, very important, is not just to have an independent regulator, but also to have really, really clear rules for decision making and for assessment that the independent regulator has to follow and the reason we want really clear rules is again to reduce the scope of discretion and to ensure that businesses know what is required of them in order to get an approval, and also the businesses know what will not be approved. So the really clear rules will help the environment, but they will also provide more efficient pathways for businesses, because if you know what you have to do in order to get an approval, you can focus your efforts on doing those things. And so you don’t get into these very costly delays and processes where businesses aren’t quite sure what they need to do, so they do certain things, and then the government says, oh, no, you needed to do this other thing. So it’s created a very, very cumbersome inefficient process. So having clear rules, an independent regulator and hopefully efficient decision making should make it less costly and easier for business.

Well, I think what I should probably say as well is that there is nothing going through the Parliament at the moment. So what happened in the previous term was the Government issued a policy paper at the end of 2022, which was called the Nature Positive Plan, and in that paper they basically accepted the recommendations of the last major review of the environment laws which was conducted by Professor Graeme Samuel in 2020 for the previous Environment Minister. So for the Liberal Environment Minister, Sussan Ley, who is now the Leader of the Opposition, and they looked at those recommendations. The plan, the Nature Positive Plan essentially adopts a lot of those recommendations and the key thing that it adopts is outcomes-focused national environmental standards. And the argument that Samuel made was that the current Act is very process driven. So it’s all about the different hoops you have to jump through in order to progress your development approval. It doesn’t look at what are the environmental outcomes that need to be achieved in order for an approval to go ahead. So hence the terrible decline in the environment because, if everybody’s focused on the process and they’re not focused on the environmental outcomes, you’re going to get bad outcomes, basically. So that was one of the key planks of it.

Another key plank, which was not recommended in the Samuel Review, but which has been part of Labor Party policy since 2018, thanks to the efforts of LEAN, is a commitment to an independent environmental regulator. Another really, really important part of this, that again LEAN has been working for years and years to achieve is to have an independent data agency. Now why is this important? Because obviously you cannot save what you do not know is there. So one of the really big missing pieces of environmental management at a federal level over many, many years is just a lack of data. So we are hoping that, if we can have a really good independent data agency that is empowered to collect data from all of the different parts of the country where data is being collected - so there are a lot of research institutions, state agencies, private companies and universities that are collecting different bits of environmental data - the idea is that you will have a national body that can consolidate that data, decide what needs to be made public for the national interest, and provide a kind of repository so that people can find that data easily. It sounds kind of nerdy and dumb, but it’s actually absolutely critical to good decision making.

William Sinclair
Coming around to the politics, the Labor Party committed to passing this EPA and EPBC reform bills when they won the 2022 election, and it didn’t get passed, and there was some media hoo-hah about that. Do you just want to explain what happened there?

Janaline Oh
Yeah. OK. So firstly, the Labor Party said that they would do this reform last term. For various reasons, it turned out to be much more time consuming and difficult than I think they had anticipated. So they had committed to a full reform process. A full reform process means a proper reform of everything from the approvals processes to how the data’s collected to how people are consulted; First Nations consultation was a really important part of that. How you manage restoration because obviously one of the key parts of the Nature Positive Plan was a commitment not just to stop the decline, not just to protect whatever is left of the environment, but also to restore the damage that’s already being done. So that’s sort of behind the concept of Nature Positive. The idea is that you establish what you’ve got. So that’s a data piece. You figure out what your baseline is, and then you commit, by a particular date, to have improved on that baseline. So leave nature in a better position than when you left - than when you started.

So anyway, for a lot of reasons. As I said, that process proved to be more difficult than the government anticipated. So in about April last year, the Environment Minister, Tanya Plibersek, had commissioned a review into how various biodiversity protections had been going and found to nobody’s real surprise that it was terrible, that land clearing in particular was creating a massive toll on Australia’s biodiversity. And so she decided to split off part of the reform and deliver what was in the 2022 election commitment, which was an independent environmental regulator, which she called Environment Protection Australia, and an independent data agency, which she called Environment Information Australia.

She didn’t include in that the wholesale reform of the approval processes. So essentially it would have set up an independent regulator to implement the current laws. The other really important part of what was in her bills, was some amendments to the compliance mechanisms and what it did was it increased penalties very, very substantially for environmental harm, and it also gave the Minister power to conduct audits of projects that were found to have a bigger impact on matters of national environmental significance than had been previously anticipated, and that would have been regardless of its approval status. So if a project had been approved, but it was having a bigger impact than had been anticipated when that approval was given, the Minister would have had powers to look into that and potentially to impose conditions or even shut something down that was actually a really important measure to try to deal with stuff after the fact.

And then the promise was if they passed that last term and then got reelected, they would finish the reform, so then they would do what they called the third tranche of the reform, and that was going to look at those sort of bigger issues about how approvals are done and how people get consulted and you know the relationships with the States and Territories and so on.

William Sinclair
If Tanya put forward these EPA bills and amendments and EPBC reforms, why didn’t they pass the Senate?

Janaline Oh
So I think there was a view within the environment movement and amongst the crossbench that this wasn’t really enough, that Labor had promised a wholesale reform and this was really just a bit of reform.

William Sinclair
Coming around to the Greens in the midst of all this environmental jostling, the Greens said that they wanted an end to native forest logging. So in the theme of our podcast, why can’t Labor just end native forest logging.

Janaline Oh
There is a technical reason that you couldn’t do it through the environmental law reform. There is a political reason you wouldn’t do it through the environmental law reform, and there is an actual social impact reason that you wouldn’t just ban native forest logging.

So the technical reason is that the regional forestry agreements are exempted from the environment law, but they are governed by a specific act which falls under the forestry portfolio. So if you want to ban native forest logging, it’s not actually the Environment Minister’s responsibility to manage those forestry agreements. That goes under a completely different portfolio. Now obviously you could argue well, they’re the government, they’re a whole government, surely they can manage that. But I guess what I’m saying is that in this specific context of the environment laws, it didn’t make sense to chuck it in at this point. That should have been a separate, broader argument with the Government over the forestry laws.

The Greens said we’ll only pass this if firstly you include a climate trigger, so in other words, a mechanism to consider the climate impacts of a project with a view to implementing their policy call to stop new coal and gas. And secondly we want an native forest - an end to native forest logging. Labor said no, neither of those are on the table. We won’t deal with a climate trigger in these laws. We are dealing with the greenhouse gas emissions from coal and gas projects through the Safeguard Mechanism, which is under the climate laws. And for people who want to know my views on the climate trigger, I will refer you to our second episode, which is specifically all about this. But in brief, we in LEAN also looked at a climate trigger and concluded that it would be very, very difficult to craft a meaningful one that would actually reduce global emissions, so encourage you all to listen to episode 2.

On native forest logging, this is a very complicated issue, so at the moment, native forest logging is not considered under the environment laws because there is a specific exemption for what are called Regional Forestry Agreements, and these are agreements that the Commonwealth has struck with individual States, whereby the States undertake to do all of the relevant environmental assessments within their State as it pertains to native forest logging. Now the evidence would show that the States’ management of the environmental protection parts of that have been woefully inadequate.

There is a political reason you wouldn’t do it through the environmental law reform, and there is an actual social impact reason that you wouldn’t just ban native forest logging. The political reason is that Labor is the party of the workers, right? Labor is a party that was born of organised labour in its struggle against capital. Just shutting down native forest logging is not reasonable for the Labor Party to do unless you can deal with the issue of what happens to those workers and communities.

This is what Labor did with the coal communities when it went full on in support of the climate transition. It went to those communities, and it said we can find alternative ways for you to have a sustainable economic future with good, unionised jobs in good industries, but powered by renewable energy instead of coal. And this was about renewables-based manufacturing; it was about replacing fossil fuel power generation with renewable power generation. But it was a commitment from the Government to those communities that we have you firmly in our sights. We are going to centre this transition around your interests and your need to have a future - yourself, your family and your community.

Labour has not yet done that for forestry workers and forestry communities and Labor, in our view, well, in my view, needs to do that and that was kind of the guts of the LEAN campaign to the 2023 National Conference where we argued for a proper forest policy that would look at how we manage and - how we manage our forests for conservation, taking into account the biodiversity and carbon values, and not just see our forests as a source of timber to be harvested, right? So it was about looking at the whole economic value of forests, and also looking at how current forestry workers could be deployed in a management for conservation environment, in a high value manufacturing environment, you know, creating new types of forestry industries in the way that the Party has committed to creating new types of energy industries.

Now the party hasn’t yet done that, and until they do that, I think there is a significant political impediment to banning native forest logging.

The third issue is a social impact, and this is a real thing. So I spoke to a number of members of the Forestry Union in the ACT about these issues, and they told me that when Bob Carr, as NSW Premier, created a bunch of national parks and stopped native forest logging in those parks, including in the South East of NSW, not far from the ACT, the union’s job basically moved to full-time suicide counselling, because those workers were not given an alternative. You know, in Victoria, the Victorian Government announced a couple of years ago an end to native forest logging. There are a number of issues with that, one of which is that the logging is actually continuing. But another issue is that a whole lot of workers who previously had jobs now no longer have jobs. And while the package that the Government put forward included salary compensation for those workers, so they are still being paid, they’re not destitute. But you can’t just take away someone’s job that they’ve been doing for their whole life and expect them to be OK just sitting at home, even if they’re getting paid. So again, you know the union literally goes on suicide watch and we have a major issue in these communities. So I think from a human point of view, apart from anything else, banning native forest logging kind of sounds great, but it’s a complex process that needs to be managed carefully.

So I’m not saying we shouldn’t have that as an end goal. I’m saying that the way in which we get there really, really, really matters to real humans and their communities. So, you know, I’ve heard a number of people from the environment movement and from the Greens say over the years, oh, but, you know, forests, if you have these sort of lovely standing forests, you can develop these fantastic tourism industries around them.

Well, that may be true, but if you think that your average forestry worker who belongs to the union, is on, you know, $90,000 a year, has a good superannuation package, has job security, you know, long service leave, sick leave benefits - you can’t really expect them to get a job for $25.00 an hour as a barista on a casual contract, with no certainty, you know, not much superannuation, and no prospects, apart from the skills issue. I mean it’s just not reasonable to expect people to go from a full time, well protected job with a lot of benefits to a casual contract, you know that is completely uncertain.

So I think there are - and again, I guess what I’m saying is this is just saying this point in a different way, banning native forest logging is not just a swipe of a legislative pen. Banning native forest logging is actually a really, really difficult and complex process of figuring out how to get your outcome without destroying humans and their communities. It needs to be done before you can just ban native forest logging. So for all of these reasons, the Labor Party, when the Greens said we want to ban native forest logging, they said not in this legislation.

William Sinclair
I’d just like to add an addendum to that. One of the things I really like about LEAN and what I think LEAN gets right, which the other environmental groups get wrong, is that kind of strategic empathy for the other side. I’ve been to a couple of Bob Brown events or environmental conferences or meeting groups, and they basically kind of paint loggers as just guys who just want to destroy nature because they just enjoy being evil. It’s kind of the feel I get from these kinds of environmental meetups.

And obviously you get involved in LEAN because you care about the environment. But I think that what I really like is that we get why loggers want to stay logging and we can understand, or at least we go to great effort to understand what the other side feels and I think that that’s lacking in the other environmental groups and in the NGOs and in the Greens.

Janaline Oh
Yeah, well, that’s why we’re Labor. I mean, this is - the quintessential part of being Labor is caring about humans.

William Sinclair
Coming around to the abundance agenda, I’ve only really heard about this vaguely in the United States. Do you just want to talk about what it is?.

Janaline Oh
This is a potentially a very significant issue and it is potentially quite a risk for those of us who want to see strong environment laws that both protect and restore nature, so Abundance is a book that was written by Ezra Klein and Derek Thompson. So Ezra Klein’s a New York Times columnist and podcaster, and Derek Thompson is a journalist with the Atlantic. They were looking at - so their basic premise was why were Democrats so unpopular? And how can Democrats actually demonstrate that government works and is a good thing?

And they looked at California because I think they’re both from California. And California obviously has been a democratic stronghold for many, many years. It has very, very strong social protections and environment laws, and it also has a genuinely terrible track record in delivering infrastructure and development, including clean energy, right?

So part of this was driven by the absolute failure of Democratic states to deliver the energy transition. And what they concluded was that, you know, decades and decades of kind of well meaning provisions forcing people to look carefully at environmental impacts and social impacts and, you know, requiring companies to have certain, you know, workforces and all of these sorts of things, I think they concluded, have contributed to making it almost impossible to build stuff in California.

Now in the California context. I think that is a very a reasonable concern, right? Because the objective fact is California is terrible at building stuff. Having said that, some of the environmental and social justice issues that have been erased in the California context haven’t really been about protecting the environment or social justice. They’ve actually been about other things, from particular interest groups. Some of it’s been just the sort of classic not in my backyard phenomenon. Some of it has been, you know, other issues, right. So all of that is sort of being loaded up into environmental and social protection provisions.

So basically what Klein and Thompson are saying is Democrats need to look really, really carefully at what they’re trying to deliver and how they can actually deliver it and actually streamline processes so that it is possible to deliver them. Now this is a very reasonable proposition.

However, in the Australian context that is not - it is not the same. The Environment Protection and Biodiversity Conservation Act is disastrous for business as well as the environment, not because it has too much environmental protection. It actually doesn’t have enough environmental protection.

The problem with the EPBC is it lacks rules, it lacks clarity. It has way too much Ministerial discretion and it is just incredibly unwieldy. So the lesson that I hope the Government will derive from, you know this kind of the - this part of the debate, is that government regulation needs to be smart and that it needs to be very, very like a laser focus - sorry, I’ll say that again. And it needs to be laser focused on achieving its objectives. So if the objective is protection and restoration of nature that needs to be upfront in the objects of the Act and it needs to be very, very clear.

And the Act needs to set standards so that business and decision makers understand what it means to protect and restore nature. So that’s why you need the concept of unacceptable impacts. Unacceptable impacts should be impacts that if you think that is going to happen, you just don’t do whatever you’re going to do. You need strong environmental standards which say, OK, you’ve got an impact, it’s not an unacceptable impact, but it’s still an impact. How do we manage that? And the environment standards should be strong and clear and make it, you know, very apparent to both businesses and decision makers what needs to be done to meet those standards.

You need to have a rules based process so that to the extent that States and Territories have a role in assessing or approving projects, they’re doing it against these strong environmental standards against these Commonwealth requirements that apply across the country and they’re doing it under Commonwealth supervision because the Commonwealth has power over matters of national environment - national environmental significance. It not only has the power, it has the responsibility to protect them.

So these are all things that I think are really important and the upside for business in all of this is that you should get a much better process. So you should get a process that is scaffolded by very clear rules and where everybody knows what the outcome for the environment needs to be, and hopefully that will reduce the scope for endless lawsuits, you know, over interpretations. It will reduce the scope for businesses, not being sure about what’s happening and doing the wrong thing. It will make clear that everything that affects a matter of national environmental significance is going to be dealt with and not subject to some weird exemption. So it should reduce a whole lot of uncertainty and you know, one of the biggest killers to business investment is uncertainty. So if you deliver certainty, then hopefully things will be cheaper, faster and better for business.

William Sinclair
Coming around to maybe a Liberal argument. The Liberals will presumably say that tough environmental laws will scare away capital investment. Is that something that we should be worried about?

Janaline Oh
Well, honestly, I think what scares away capital investment is the prospect of being tied up for decades in stupid process. A lot of countries have tough environmental laws, but where they are clear and they are easily - easy to understand and you know what is required, that doesn’t scare away business, right? Large parts of the European Union have very tough environmental standards. They still get investment. They still have economic activity. They still have capital. They still have foreign capital. I think what business wants is to know that if we’re going to invest in a thing, it can go ahead and it can go ahead in an orderly way and we know what the costs are and we know how long it’s going to take.

Protecting the environment is not just some kind of greenie indulgence. We depend on environmental goods and services for a lot of Australia’s economy, right? We have a very, very large primary industry sector. We have, you know, even our urban environments become more liveable if we have decent natural ecosystems and if we protect them. So it’s not just about a bunch of greenies like walking in the forest. It’s actually about degrading our environmental goods and services. Degrading our natural capital and destroying our biodiversity makes our land less good to live on, less easy to develop. It creates all sorts of problems. It exacerbates things like extreme heat. It exacerbates droughts. It can exacerbate floods, right? All of these things, which are only going to get worse with climate change, can to some extent be mitigated by healthy, well-functioning natural ecosystems. So there are good social and economic reasons for protecting the environment.

William Sinclair
Just wrapping up now, as of recording today on the 24th of July, the EPA hasn’t been introduced to the Parliament yet and the EPBC reforms haven’t been introduced to Parliament.

LEAN will be campaigning heavily to try and push them through. We’ll see what happens and depending on the outcome, we might do another episode.

Thank you so much to Euca Lord and Callum Sinclair for helping edit. The music is called Insurrection, written by Pierre Chrétien, performed by the Souljazz Orchestra, courtesy of Do Right Music, Inc.

Another thank you to Ronan Sinclair for helping us set the audio. My name is William Sinclair.

Janaline Oh
I’m Janaline Oh, and this is Why Can’t They Just.