The ‘centrepiece’ of new Environmental Law recommendations is a set of National Environmental Standards. See the interim report.
Interim Report Highlights
This wide ranging report has a whole lot of recommendations that seem to be reflective of how we transmit information between ourselves now, in the twenty-first century, and so have a kind of odd structure. I’d like to think that the first question we ask is when considering the care of the environment is – what is life, and how do we preserve it?
It strikes me as strange that the EPBC Act does not talk in terms of life and death, but that’s really what it should be based on. What is an ecosystem, if not a living system that we must talk about in terms of life and death? How does it survive and thrive, or die and disappear? These are ultimately the questions for us. The questions that environmental protection might ask, like how might we reduce the damage, should be answered by some everyday, pragmatic wisdom: hacking living things and soil to pieces, with modern machinery, and it will often die. This realisation is shrouded in a lot of talk about data, models and markets, and a lot of politically satisfying talk. If legislation is written mainly because it sounds nice to the ears of those that write it, then it may still not achieve its purpose.
This set of recommendations places its faith in science, and in the magic of information to achieve miraculous changes in behaviour. In doing so, it fails to come to terms with its disparate objectives – to bring communities together in terms of understanding the need for environmental protection, but also to achieve a kind of technocratic oversight in the collection of information and in predictive scientific models (see Part 3). Has no one explained how many choices and assumptions are needed for these models? It’s foreshadowing that the saviour of the environment is a data economy and bureaucracy. Time will tell whether the detailed review of that new vision will lead to operational, on-the-ground changes. As I will illustrate in Part 3, at the moment there are some classes of people who just don’t know where to find and understand the EPBC Act anyway. Perhaps that why people think we need a centralised environmental police force (in the form of a single environmental regulator).
Some of the recommendations of Professor Samuel, in this Interim Report into the workings of the EPBC Act, imagine a world in which nerdish bureaucrats hunched over computers will come up with scientific models that illustrate the calamities that might ensue from another prognosticating approval decision. In ‘review-speak’ this kind of recommendation is written like this:
To apply granular standards to decision-making, Government needs the capability to model the environment, including the probability of outcomes from proposals. To do this well, investment is required to improve knowledge of how ecosystems operate and develop the capability to model them. This requires a complete overhaul of existing systems to enable improved information to be captured and incorporated into decision-making.URL: https://epbcactreview.environment.gov.au/resources/interim-report/chapter-6-data-information-and-systems
We should be very skeptical of calls to carry out more modelling, and to scrap everything and start again, in the vain hope we will do it better next time. Modelling, in the right circumstances, is a classic example of garbage in, garbage out. Worse, it oversimplifies complex systems using too little data.
It’s not new to say that we have scientific models to help model the environment, and it’s not even new to say that the models we already have might not actually work. However, recent evidence to Courts and enquiries in relation to habitat modelling has exposed the over-reliance on models in operational contexts. That evidence illustrates the tokenistic use of models in substitution for genuine close observations or intelligent thought. Based on this evidence, we must allow for the fact that some modelling is not only failing to be accurate, but it is contributing to a cultural laziness that results in breaches of environmental protection requirements.
The plight of the Leadbeaters Possums in Victoria is a specific example of this. Justice Mortimer in the Federal Court (at paragraph 233) was able to say, in relation to the brow-beaten and chastised Professor:
Ultimately, Professor Baker appeared to admit that his modelling could not be used to predict if Leadbeater’s Possums were actually present in certain habitat. That seems to me to be a fatal flaw, and to expose the limits of modelling as a method of protecting and conserving important habitat, as opposed to surveys which are likely to detect where the habitat is which is in fact being used by the species.Friends of Leadbeater’s Possum Inc v VicForests (No 4)  FCA 704 at 
There are other examples, from other States, where modelling has been used in similar fashion by logging companies to model habitats for tokenistic retention of trees in forestry operations. In the NSW Legislative Council June 2020 report (Koala populations and habitats), it referred to a similar reliance on technicality and token retention of trees (para 2.73):
That similar behaviour has been seen in two different States illustrates the extent to which these companies model their ‘best practice’ after each other, or at least resort to the same tools. It would be interesting to know exactly how each internal group justified its decisions, and whether it was arrived at independently or not.
These problems are deep, in that they show a culture that does not even value direct observation and data collection, but is also prepared to be lazy and wilfully blind as to whether what they are doing is working. They simply do not care, and no amount of legislative reference to better data or models will overcome that problem. It merely increases the burden on auditing and enforcement.
One of the dangers of collecting information is that the kind of information you collect is dependent upon how you frame the problem. For example, if you only collect data about where you actually see species, and use the absence of species to justify taking out (removing/cutting down) habitat, then you end up with a feedback loop. The increasing degradation of environments and encroachment of human activity pushes the species into other places. It’s the classic ‘Greedy Clearing Algorithm‘.
The national focus of the legislation and review does, of course, influence the kind of recommendations for reform. There will obviously be some attraction in permitting information gathering to allow some people to pat themselves on the back for doing a good job, according to whatever formula for ‘ecologically sustainable development’ we come up with. We’ll be tracking and counting with some new-fangled environmental-development ‘ticker’ , that monitors all our key environmental performance indicators. For example, there is this recommendation:
National environmental economic accounts will be a useful tool for tracking Australia’s progress to achieve ecologically sustainable development (ESD). Efforts to finalise the development of these accounts should be accelerated, so they can be a core input to SoE reporting.URL: https://epbcactreview.environment.gov.au/resources/interim-report/chapter-7-monitoring-evaluation-and-reporting
You can see how these reports are going to wind their way into government reporting and electioneering – already we have acronyms like ‘SoE’ for ‘State of the Environment’ because it’s been more important to have a catchy phrase in a report than to establish persistent community values that will safeguard the environment.
The regulators are also going to take whatever opportunity they can to improve their own resources for this modern, technology-driven bureaucratic approach:
with a full suite of modern regulatory monitoring, compliance, enforcement and assurance tools and adequate funding.URL: https://epbcactreview.environment.gov.au/resources/interim-report/chapter-9-compliance-enforcement-and-assurance
Postscript (24 November 2020): Information Gathering and The Koala Census.
The ‘Koala Census’ (https://www.smh.com.au/politics/federal/line-in-the-sand-koala-census-to-identify-key-habitat-for-protection-20201122-p56gug.html) reflects the pursuit of an information-driven approach that was foreshadowed in the government’s National Environmental Standards.
Information-led responses to ongoing environmental problems may fall into three different kinds.
- The first involves a credible and open attempt to supplement existing knowledge, and inclusively work with the people who have previously put time and effort into solving the problem, but have lacked resources. This is the best approach, and works better when policy and information-gathering are being developed in parallel.
- The second is one that reflects an overly-enthusiastic but naive proponent leading the new approach, who insists on gathering new information because it gives them ownership of the ‘newness’ of the solution. There is often a policy vacuum, at least for those leading the initiative. This may seem benign but it consigns a lot of wisdom and personal involvement to the sidelines. It wastes time and resources and sends the wrong message. It risks the decision-maker being someone who, in ignorance, thinks the last 6 months of narrow quantitive information is more important than decades of qualitative understanding, and knowledge of interactive systems.
- The last is one where there is an authoritarian mindset, in which the information-gathering reflects a pre-meditated attempt to ultimately control and exert power for non-environmental interests. The focus on information is part of a strategy that will use information to blindside the public as to the lack of real intent, and relegate people who have genuine concerns to the sidelines.
The last of these approaches is the most cynical, and also the one least likely to deal with the systemic and cultural changes that need to be made to solve the problem. Information gathering per se does not solve problems with dynamic interaction and conflicts. The mere ‘counting’ of anything does not provide that wisdom.
The information driven approach involved in the Koala Count should evaluated to see which of these different situations it represents. New information gathering when the problem’s true causes, qualitatively are already understood (habitat loss, encroachment and land-use conflicts, revegetation, predators, fire), might be seen to be dismissive and one that reflects the cynical approach. Whether it is or isn’t depends on how well policy and the new information is integrated.
The set of factors that affect political solutions to environmental problems includes who is using the information, what insight into the problem they possess, and what power are they willing to exercise to achieve the intended benefits, even if unpopular.
Yes, ‘Koala counts’ have been around in more than one State –