Background to EPBC Act Review

The Discussion Paper

The direct link to the Review’s Discussion Paper is here.

The review of the Environmental Protection and Biodiversity Act (Cth) is supposed to occur at least once every ten years. This is taken literally, since the last review was done in 2009.

A slight shift is the move for more universal standards, that cross State boundaries. This restructuring is not unique to environmental law: it has already occurred in relation to the Corporations Law.

So why bother with a review? The aim is to improve the outcomes from the publication of the Act. If we are serious about measuring this effectiveness, then the legislative reform needs to be tested to see if it:

  • promotes genuine attention to caring about the state of the environment before, during and after projects; and
  • provides simpler mechanisms for obtaining information on the state of attention to these things, preferably without the need for litigation.
  • consequences (immediate, ongoing) for projects that fail to show genuine commitment to the conditions that led to the project being approved in the first place.

The Discussion Paper seeks to invite comment by a serious of questions, which are really a set of leading questions, that guide readers into thinking that some of the issues are new, when they really are not. By repeating the same questions for each review, asking if markets and self-regulation might work, there is an implicit message that we will not learn from the past, at least not quickly.

Take Question 21 for example :

The limited capacity of government resources to directly manage Australia’s environment may constrain the achievement of environmental outcomes. Greater use of ecosystem services markets could make it easier for business to meet their obligations by investing in environmental outcomes. There is also an opportunity to take advantage of the greater focus on corporate social responsibility to increase private sector interest in improving the environment.

As noted earlier, where the interests of the regulated community aligns with the regulatory outcome, there may also be advantage in leveraging mature industries’ ability to self-regulate, with the Commonwealth retaining oversight. These arrangements can be more adaptive in a rapidly changing world and have greater support than traditional regulation, especially if there is connected and coordinated investment in what matters most with transparency of obligations supported by quality assurance arrangements.

Finally, the provision of greater information and education can change the behaviour of consumers and business, such as through labelling and other information products.

Is this so new or insightful? Ideas like self-regulation have, in the past, not achieved significant success where there is a conflict between the priorities or values of those self-regulating, and the necessary prioritisation of environmental protections. Is there anything to suggest we now know and acknowledge these? It is left to those providing submissions to answer these questions.

Similarly, Question 23, dealing with the expansion of offset markets. Is this a prejudged conclusion? This explanatory text (in the December 2019 Discussion Paper) seems to illustrate the assumptions that offsets are working:

A greater focus on developing efficient ecosystem services markets may lower costs and support greater investment in the environment. There may also be opportunity to improve the environmental outcomes that the current biodiversity offsets system delivers and the systems that maintain the integrity of offsets.

Here again are the old solutions, particularly market solutions, which have tended to encourage the idea that the environment is tradable commodity, or one that is capable of being ‘produced’ if there is enough incentive to do so.

A failure to implement offsets in a timely way (in many cases, they are needed before project commencement) merely encourages token applications to be made for offsets as conditions of an environmental approval. Offsets themselves tend to reframe natural resources as economic consumables. The EDO noted, in its April 2020 submission for the review of the EPBC Act:

The success or otherwise of environmental markets is highly dependent on whether the market settings adequately reflect the limited nature of natural resources and properly price the costs of environmental harm, including those costs that traditional economic models consider to be ‘externalities’.

URL: https://www.edo.org.au/wp-content/uploads/2020/04/EPBC-Act-10-year-review-Environmental-Defenders-Office-submission-.pdf (at page 100)

Part of the problem with the Act, which is an issue for any legislative reform, is whether it can take bold steps to try and increase the priority of environmental actions in the day to day lives of the community, and particularly those in the agricultural or resource areas, like farmers, loggers, coal-miners, truck drivers or fruit growers. As the EDO said in its April 2020 submission:

“To restore trust and achieve improved outcomes, community engagement must be at the centre of the Act.”

URL: https://www.edo.org.au/wp-content/uploads/2020/04/EPBC-Act-10-year-review-Environmental-Defenders-Office-submission-.pdf (at page 94)

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