The federal government is currently holding an Inquiry into streamlining environmental regulation, ‘green tape’, and one stop shops, which looks set to completely change the way environmental regulation works across Australia.
Ultimately it risks creating a confusing array of rules and lower environmental standards, where the main winners will be mining and property development lobby groups.
The likely losers include local communities concerned about major new developments in their area; shared environmental assets that all Australians benefit from, including clean air and water; and unique animals, plants and habitats that, once lost, can never be brought back again.
Handing more power over to the states
The federal government has already embarked on a process of delegating project assessment and approval powers to the states, to establish its “one-stop shop” on environmental management.
It involves streamlining state and territory major project assessments, and the federal government handing over the final decisions on projects assessed under Australia’s main national environmental laws to state and territory governments. (Read more here.) A tight September deadline has been set for completing the process.
This “one stop shop” approach ignores the fact that the states have long proven themselves to be poor guardians of areas of national environmental significance. You don’t have to look far to find examples.
Take Shoalwater Bay, a heritage-listed area within the Great Barrier Reef Marine Park, 70 kilometres north-west of Rockhampton. Although parts of the area are regularly used for military exercises, it remains one of the biggest areas of largely undisturbed areas Australia’s east coast, including being home to internationally-listed wetlands, and rare and endangered species such as dugongs and sea turtles.
In mid-2008, Waratah Coal appeared to have the backing of the then Labor state government for its proposal to build a new coal port and 500-kilometre rail line through the region. The proposal had been declared a significant project by Queensland’s Coordinator-General (who thereby undertook the project’s environmental assessment) and approved, notwithstanding anticipated impacts on species and habitats.
But in September 2008, the then Environment Minister, Peter Garrett, stepped in using federal environmental laws.
Without that intervention – which found that the project would have had “clearly unacceptable impacts on the high wilderness values of Shoalwater Bay and on the internationally recognised Shoalwater and Corio Bay wetlands” – the project would have proceeded.
The Murray-Darling river system is another a glaring example of how state self-interest is likely to trump public or national benefit unless there is an active and responsible role played by the federal government.
So why overhaul Australia’s environmental rules at all?
The case for change
The current federal “green tape” inquiry is based on the idea that Australia has too much environmental regulation, which is choking development.
That’s certainly the view of the mining and property development lobbies. While a 2012 NSW government survey found that the community considered regulation of those industries as being “too lax”, there has been a strong industry push to reduce regulation.
A joint submission by the Australian Petroleum Production and Exploration Association (APPEA), the Business Council of Australia (BCA) and the Minerals Council of Australia (MCA) argues that there is duplication between Commonwealth and State government environmental regulation. Yet it does not refer to specific legislation where this is the case.
The joint APPEA, BCA and MCA submission also refers to a number of unnamed companies who have suffered long delays and had to produce thousand-page environmental impact statements and spent millions on environmental approvals. These contentions are not backed by independent analysis of the cost of environmental regulation and how this may have changed over time.
A different view
I’ve worked in environmental law for 15 years, including with the Environment Protection Authority, and still teach law at university. For more than a decade have been with the New South Wales Environmental Defenders Office, part of a broader Australian Network of Environmental Defenders Offices (ANEDO).
And it’s based on all of that legal experiences that I’d strongly argue – along with my ANEDO colleagues – that the industry and government push to reduce national environmental regulation will prove to be bad for local communities and our environment.
In 2012, an ANEDO audit of threatened species and planning laws found that “no state or territory biodiversity or planning laws currently meet the suite of Federal environmental standards necessary to effectively and efficiently protect biodiversity”.
And in March last year, a federal senate inquiry also found no substantive evidence that the existing regulatory arrangements were imposing unnecessary costs on business.
Conflicts of interest
If you’re still not sure where you stand on the handover of federal powers to the states, then just consider the conflicts of interest.
State governments may stand to gain tens or hundreds of millions of dollars in royalty payments if they approve major mining or coal seam gas projects. And in major infrastructure projects like port expansions or highways, the state may be both the proponent and approval authority.
Alternatively, if a major project requires the approval of the federal government, there is an extra level of checks and balances, reducing the risks of such conflicts of interest.