In an age of monumental political shifts, the news that the Coalition doesn’t like, and very likely won’t support, Labor’s proposed revamp of national nature law has at least had one thing going for it. It is achingly predictable.
I mean … of course it was going to go this way. Australia’s rightwing parties are a mess, and threatening to tear themselves apart. It’s possible not every Coalition MP dismisses the evidence that the country’s extraordinary and unique environment is in long-term decline. But a significant number do.
Sussan Ley and David Littleproud are battling to hold their parties together and keep their jobs. The idea that a deal could be landed, with the support of the Nationals and many Liberals, that includes even mild nods to improving nature protection was always highly optimistic.
It’s hard to imagine the Albanese government believed it was possible. But for weeks we have been stepping through the political dance of the environment minister, Murray Watt, talking with both the Coalition and the Greens about what a future Environment Protection and Biodiversity Conservation (EPBC) Act might look like.
If nothing else, we should be grateful to Ley for ending the pretence on Thursday, when she declared the nature laws were a “red light” for jobs and suggested the creation of a national Environment Protection Agency (EPA) would be a form of “green ideology”. Most of what she said was not true – Alcoa quickly dismissed Ley’s claim that the legislation would stop a proposed gallium refinery expansion – but it made her position clear.
It means that unless something extraordinary happens in Australia’s rightwing politics, or Labor abandons any claim to wanting to protect the country’s extraordinary wildlife, the government will have to deal with the Greens in the Senate. In political terms, we are basically back to where we were a year ago, before Anthony Albanese intervened at the behest of Western Australian Labor and mining interests to scupper a deal between the then minister Tanya Plibersek and the Greens to legislate an EPA.
Agreement this time appears challenging, if not impossible. Lobbyists, campaigners and politicians have seen parts of the legislation, but key elements – the design of the EPA, for example – are yet to be released.
There are some things we know. The proposed changes to the EPBC Act do not deal with its fundamental problem: despite its name, the law does not prioritise protecting the environment. Its principle role is to allow projects – including fossil fuel developments – to go ahead, with some conditions attached to limit environmental damage.
That approach has failed, partly because the environment minister of the day has a remarkable amount of discretion to approve what they see fit. Ministers have routinely approved offsets that do not compensate for the nature that has been lost. Conditions have not been enforced. The cumulative impacts of multiple developments have not been considered.
Native forest logging overseen by the states has been effectively exempt, despite a long list of legal cases in which it was found to have breached the laws. Forest destruction on private land for agriculture – a major driver of biodiversity loss across vast areas of western New South Wales and Queensland, and the Northern Territory – has rarely been assessed.
Alongside these fundamental environmental problems, decision times on projects have often blown out – a major gripe of industry that it wants addressed.
Added up, it means major surgery will be needed to address the systemic problems set out in the last major state of the environment report. The risk is that the overhaul ends up as tinkering rather than transformation.
If the government’s first goal is to lift environmental protection – and it was prepared to lose skin to industry attacks in the process – there is a strong case it would replace the act entirely. Watt’s predecessor Plibersek flagged that as a possibility before dropping the idea. There seems to be no appetite for it now. Instead, the focus is on pushing legislation through as soon as possible.
There are some decent elements in what Watt is proposing.
He is leaning heavily on a 2020 review by the former competition watchdog head Graeme Samuel, including one of its central recommendations – the introduction of national environment standards against which development proposals could be tested. Two draft standards, covering matters of national environmental significance and offsets, are promised alongside the legislation, with others to follow. Their strength or otherwise will go a long way towards deciding whether the changes are meaningful.
Environment minister Murray Watt in Brisbane. Photograph: Jamila Filippone/The Guardian
The legislation will include a definition of an “unacceptable impact”. This could be crucial in setting a test of whether a project should be approved in an environmentally sensitive area. Business interests don’t like it and want it out.
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The minister says there will also be broader “no-go zones” in which developments will be banned, and a requirement that industry will not only offset the damage it causes, but spend to create a “net gain” for nature. This is vital given what has been lost, but we know nothing about how net gain will be defined or enforced. For now, it’s just a phrase.
Watt is promising a legislated requirement that developers need to avoid or limit damage before buying offsets. And he says there will be beefed up penalties, with fines of up to $825m and a pledge that offenders would be stripped of financial gains made while breaking the law.
Most of these commitments are hard to assess without detail – including on whether the EPA will have the power, resourcing and culture needed to transform nature protection across the country.
Then there are the problems and unanswered questions – and they are significant.
There is little sign the legislation will tackle the huge problem of deforestation. Millions of hectares have been cleared without federal oversight, mostly for industrial farming. The state of the environment report cited evidence that 93% of the threatened species habitat cleared between 2000 and 2017 was not referred for assessment under national law. One hundred scientists wrote to Albanese this week calling for this to be urgently addressed.
The government is planning to create a “restoration contributions” fund that developers can pay into and officials would then use to buy offsets. But the legislation includes no requirement that the offset is “like-for-like”, which suggests spending on a completely unrelated environment project could be used to justify nature destruction elsewhere.
It is also unclear how the government plans to abolish the exemption granted to native forest logging – something Samuel, Plibersek and Watt have agreed is necessary – but which the timber industry and the Tasmanian government strongly oppose.
And on the epochal issue of climate change – which will transform so much of the natural environment as temperatures rise – the government has remained firm in rejecting calls for the greenhouse gas pollution of fossil fuel developments to be considered in the approval process.
Instead, developers will be required to just disclose in their application the expected emissions and a plan to reduce them – a step that many big companies already take. Rather than block big polluting projects, the likelihood is that coal and gas proposals could receive a greenlight more rapidly if the legislation is passed, in the name of cutting “green tape”.
If it happens, history is likely to judge it as an obviously perverse outcome from what the government announced on Friday would be known as the Environment Protection Reform Bill.
