As soon as Ley announced her plans, representative groups for agriculture and resources sectors said the move could simplify the project approval process, which currently requires developers to deal with state and federal bureaucracies, while environmental groups said important protections would likely be weakened.
Speaking to The Sydney Morning Herald and The Age, legal experts listed ongoing concerns over poor funding, lack of baseline data against which to measure environmental health, and independent regulation of decision making – which they said had been left out of the proposals and would likely grow worse under a new regime.
Professor Lee Godden, director of the Centre for Resources, Energy and Environmental Law at the University of Melbourne, says “to devolve assessment powers to the states, even with national standards, I would argue no longer has the integrity of the original agreement between the states and federal government to form the EPBC Act”.
The government’s response was published on Monday by former competition regulator Graeme Samuel, who published his interim review of the EPBC Act.
Samuel sounded a stark warning that Australia’s “current environmental trajectory is unsustainable”. National laws were “not fit to address current or future environmental challenges”, he said, while for industry they are “ineffective and inefficient”.
Ley adopted his recommendation that the Commonwealth reduce bureaucracy to speed up approvals by “streamlining” the project assessment system by handing over the Commonwealth’s role in assessing major projects to states and territories. She expects to introduce changes to Parliament to make the shift in August.
Samuel said the devolution of powers should be balanced by a new, independent “tough cop” regulator to police the states and monitor their administration of project assessments against national standards and the EPBC Act.
Ruling out any new body or an independent regulator, Ley said the states would have to demonstrate they can meet national standards without additional Commonwealth funding, while leaving the door open to compliance monitoring.
“To be accredited under proposed bilateral approvals, states will need to be able to demonstrate that they can apply the national standards being developed,” Ley told the Herald and The Age. “They will also be accountable through a strong assurance and compliance process.
“We are not providing additional funding to the states.”
Since colonisation, about 100 of Australia’s unique flora and fauna species have gone extinct and the rate of loss has not slowed over the past 200 years.
The act was created, in part, to address species loss. It makes the Commonwealth responsible for protection and recovery of threatened flora and fauna and matters of national environmental significance.
But since the EPBC Act was created in 1999, the list of threatened species and ecosystems has grown by more than a third – from 1483 to 1974. More than 8 million hectares of threatened species’ habitats have been cleared in that time, mostly for project development, but 93 per cent of these were not assessed under the legislation, a study by leading Australian ecologists found in 2019.
“We have seen in Australia consistent under-resourcing of compliance and monitoring,” says Martin. “The question now is whether the states have the capacity or backbone to properly oversee environmental management, and that depends on the integrity and resourcing of whichever agency has that responsibility.”
The Wilderness Society pointed out in their submission to Samuel’s review that unlike the banking sector with the Australian Prudential Regulation Authority or taxation with the Australian Taxation Office, regulation of the environment and the EPBC Act is “one of the last remaining major regulatory functions at a Commonwealth level that is not undertaken by an independent statutory body”.
Australia “requires a major investment in monitoring and data collection”, it said, noting that the 2016 State of the Environment report found that the Commonwealth is “unable to measure the effectiveness of most of our investments” in threatened species and biodiversity.
Godden says the EPBC Act was the product of a co-operative federalism model negotiated following a period of increasing prominence for the Commonwealth in environmental management.
The Commonwealth’s powers to legislate for environmental protection were recognised in a series of high-profile disputes in the High Court between state and federal governments in the 1980s.
These conflicts involved on the one hand the obligations to protect the environment placed on the federal government under international treaties on World Heritage and other measures to which it had committed, and on the other the powers of the states to regulate land and resources such as forests and to promote development.
“The EPBC is a compromise [in response to] the increasing centralisation for environment protections under international conventions,” Godden says.
The effectiveness of new national standards will hinge on robust baseline data to quantify the health of threatened species as well as that of their habitats, she adds.
“That will require very significant investment and it will be very interesting to see if the standards are accompanied by the funding and independent oversight needed to ensure integrity.
“If that is all there, then that’s fine. But we need the oversight role to be robust, particularly for the Commonwealth’s obligations for threatened species and other matters of national environmental significance.”
Samuel proposed national standards mirror the EPBC Act’s register of critical habitat, which stipulates “no detrimental change” can come from land clearing and project development.
There are about 1300 listed threatened species but only five registered critical habitats, which are limited to small areas in Commonwealth territory in South Australia, Macquarie Island, the ACT and Pedra Branca, a rocky islet in the Southern Ocean.
Ley did not commit to expanding the register of critical habitats, but said she would consider the issue.
The national standards do not rule out development in habitat for critically endangered mammals such as Leadbeater’s possum, Gilbert’s potoroo or koalas, which are listed as vulnerable and may be upgraded to endangered in some areas.
The review noted that the critical habitat register is currently incomplete and “more should be identified and listed over time”.
Martin says the “evidence is that the implementation of existing legislation is appallingly bad, demonstrated by the well-documented loss of habitat and species”.
Godden says devolving powers to the states would in particular be “highly problematic” for the water trigger laws which were inserted into the EPBC Act in 2013.
The water trigger allows an independent expert panel to review the potential impacts from large-scale coal and gas projects on surface and underground water resources and to advise the federal government on the sustainability of the project and conditions to manage the development.
“It is not clear from the interim review how there would be adequate safeguards once you dilute the assessment process. Very robust, independent models are required given the reliance of biodiversity and agriculture on water resources.”
Samuel found the EPBC Act was not meeting its objectives and project assessments should focus on the outcome, not the process. Godden says a focus on outcomes could work for project proponents and the environment by setting goals to protect animals and habitats at risk.
“If you are going to focus on outcomes, why not set targets for increasing biodiversity in critical areas?” she said.
Godden is “extremely supportive” of the inclusion of Indigenous traditional knowledge called for in the Samuel review.
“We need to move on from what has been seen as a representative or consultative model to actively include traditional knowledge in management of resources, and recognise the value of Indigenous perspectives in the protection of this country.”
Samuel’s interim report is part of a statutory requirement that mandates the EPBC Act is reviewed every 10 years. He will consult further with stakeholders before publishing a final report in October.
Ley said she will continue to consult with willing states and a range of parties in preparing the legislation.
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Mike is the climate and energy correspondent for The Age and The Sydney Morning Herald.