A review of Australia’s primary environmental law has delivered a well reported and damning assessment of its effectiveness, or lack of it. But perhaps its greatest failure is that it completely ignores the impacts of climate change on the Australian environment.
The interim findings of a review of the federal Environmental Protection and Biodiversity Conservation Act (EPBC Act), being undertaken by former ACCC chair and professorial fellow at the Monash Business School Graeme Samuel, were published on Monday, detailing how Australia’s environment is on an “unsustainable” trajectory.
The review found Australia’s environmental laws are ineffective, and “do not enable the Commonwealth to play its role in protecting and conserving environmental matters that are important for the nation.”
“It is not fit to address current or future environmental challenges,” the report says.
However, while the report has flagged a range of possible reforms to Australia’s environmental laws, it has stopped short of recommending that climate change considerations are incorporated as part of Australia’s environmental laws.
Climate change was ignored by the review, and it appears the EPBC Act will continue to lack any consideration of the contributions that projects like coal and gas developments can have on global warming, nor will the environmental laws consider the need to address climate adaptation measures.
Greenpeace Australia campaigner Jonathan Moylan told RenewEconomy that climate change was already causing damage vulnerable part’s of Australia’s ecosystems and that it was imperative that Australia’s core environmental law was responsive to the impacts of global warming.
Moylan added that it was disappointing to see climate change ignored, given the clear impacts it has had on the Australian environment in recent times.
“Species extinction, habitat destruction, and the repeat mass bleachings of the Great Barrier Reef are monuments to the failure of the Environment Protection Biodiversity and Conservation Act,” Moylan said.
“However, as it stands the government’s response to the review will fail to stem and indeed exacerbate the tide of threats to biodiversity, air, water and the climate. It is extraordinary that after a summer of deadly bushfires we still have no mention of the biggest threat to biodiversity – climate change – in our main national environmental law.”
“We need a new generation of environmental laws that are effective in protecting nature, governed by an independent, transparent and accountable regulator and access to justice,” Moylan added.
The review of the EPBC Act was commissioned by federal environment minister Sussan Ley, who expressed a desire to see the obligations imposed by the EPBC Act wound back in an effort to reduce “green tape”.
In launching the review, Ley indicated the Morrison government wants to see the EPBC Act amended to reduce the opportunity for environmental groups to use the Act as the basis for legal challenges, with a range of project developers, particularly those in the fossil fuel industries, complaining of “environmental lawfare”.
“This is our chance to ensure the right protection for our environment while also unlocking job-creating projects to strengthen our economy and improve the livelihoods of every-day Australians. We can do both as part of the Australian Government’s COVID recovery plan,” Ley said.
While the review did not seek to expand the scope of the environmental protections provided by the EPBC Act, it found the laws were ineffective and inefficient, and that they failed to deliver meaningful protections of Australia’s vulnerable environmental systems.
“Australia’s natural environment and iconic places are in an overall state of decline and are under increasing threat. The current environmental trajectory is unsustainable,” the report says.
“The EPBC Act is ineffective. It does not enable the Commonwealth to protect and conserve environmental matters that are important for the nation. It is not fit to address current or future environmental challenges,” Samuel added.
In many ways, the findings of the review are perplexing, as they identify many of the shortcomings of the existing EPBC Act, but mostly offers recommendations for how the scope of protections established by the act can be narrowed.
One notable example is the approach the review has taken to consideration of groundwater protections that apply to proposals for new coal and gas projects.
There had been calls to loosen the environmental laws for coal and gas projects, particularly concerning the “water trigger” which requires the federal government to consider the impacts of coal and gas projects on water resources before awarding approval for a project.
The review has resisted the calls to abolish the “water trigger” altogether, but said that its application should be limited to situations where impacts of coal and gas projects on water resources present a risk to threatened species, world heritage sites and wetlands of international significance, or where there are issues that cross state borders.
The regulation of more general impacts on water resources should be handed back to state governments, the review recommended.
Such suggestions have been deeply criticised by environmental groups, which say state governments lack the ability to consider environmental issues of national concern.
“The review outlines the catastrophic impact of twenty years of failure in Australia’s environment laws, impacts that have been in plain sight throughout the operation of the EPBC Act. This is a law that was introduced by a Coalition Government and administered by Coalition governments for 14 of those 20 years,” The Wilderness Society’s Suzanne Milthorpe said
“Now this Coalition Government is asking us to trust them on immediately handing environmental safeguards to the states while promising at some time in the future to make changes of an ill-defined nature to improve environmental standards.”
The EPBC review will continue to receive submissions on the interim findings and is expected to be delivered in October.