The Australian government has introduced a reform package to overhaul the 25-year-old Environment Protection and Biodiversity Conservation Act, a law widely criticized for its failure to halt the nation’s biodiversity decline. The legislation, tabled in Parliament today, aims to protect threatened species and scrutinize developments impacting ecosystems. However, the act has historically fallen short, with species extinctions continuing and land clearing persisting in regions like Queensland and the Northern Territory.
The proposed reforms, presented by Environment Minister Murray Watt, include bills to enhance environmental protection and establish a national environmental protection agency. While the minister touts the reforms as beneficial for both the environment and businesses seeking faster project approvals, the legislation’s success in Parliament remains uncertain.
Background and Criticism of the Existing Laws
The 2020 Samuel Review, led by Graeme Samuel, highlighted significant flaws in the current environmental laws and offered a comprehensive reform blueprint. Despite Labor’s initial promise to implement these changes, political challenges have hindered progress. The existing laws have been criticized for granting excessive discretion to the environment minister, allowing projects that could cause significant environmental harm to proceed with ministerial approval.
The Samuel Review recommended establishing National Environmental Standards to guide decisions and protect threatened species. However, the draft laws fall short, permitting the minister to create standards without mandating their development. These standards, described by Samuel as the “centrepiece” of reform, are still under government development.
Ministerial Discretion and National Standards
The proposed legislation attempts to address ministerial discretion by requiring the minister to ensure approvals are “not inconsistent” with any established standards. This requirement extends to state governments if decision-making is delegated. While promising, the subjective nature of the term “satisfied” leaves room for ministerial discretion beyond Samuel’s intentions. The impact of these standards will largely depend on their final form.
Positively, the bill introduces the concept of “unacceptable impacts,” preventing developments that could severely harm critical habitats. Despite this improvement, the mining lobby’s opposition to such amendments could influence the legislation’s passage. The minister retains the power to override these constraints if deemed in the “national interest,” a term not clearly defined in the act.
Offsets and Environmental Protection Agency
Critics have long targeted the existing laws for their reliance on biodiversity offsets, where developers compensate for habitat damage by restoring equivalent areas elsewhere. Samuel’s review noted offsets should be a last resort, yet the reform bill continues to prioritize them. Developers are not required to explore damage avoidance before considering offsets, and the minister is only obliged to “consider” the mitigation hierarchy.
The introduction of “restoration contributions” allows developers to pay into an offset fund instead of undertaking restoration themselves. This approach, similar to a controversial New South Wales scheme, risks becoming a financial loophole without proper safeguards. Offsets should only apply where habitat replacement is feasible, but the bill lacks provisions to assess their viability.
The proposed creation of a National Environmental Protection Agency marks a step forward, as there is currently no federal watchdog. However, the agency’s powers are limited to compliance and enforcement, excluding environmental approvals. This limitation follows strong opposition from the mining sector to granting an independent body such authority.
Delegation of Environmental Decision-Making
The reforms permit the federal minister to delegate decision-making to state or territory governments, raising concerns among environmental groups. This delegation could bypass federal oversight of controversial projects. To delegate, the minister must ensure state processes align with national standards and do not result in unacceptable impacts.
Additionally, the reforms propose regional planning to balance development and conservation. Effective regional plans could provide certainty for developers and prevent habitat fragmentation. However, the success of such plans will depend on their detailed implementation and scrutiny.
Climate Change Considerations
Environmental advocates and the Greens have called for a “climate trigger” in the reforms, which would require thorough assessment of projects’ climate impacts. This proposal has been rejected by independent reviews and the government. The amendments offer minimal concessions to climate change, requiring developers to estimate direct emissions without obligating the minister to consider them. Scope 3 emissions, resulting from the burning of Australian coal or gas overseas, remain unaddressed.
Future Prospects and Challenges
The environmental reforms reflect significant compromise due to the political landscape and previous reform failures. Despite shortcomings, the creation of a federal EPA and the inclusion of unacceptable impacts could lead to environmental improvements if addressed effectively. However, the path to enacting these reforms into law remains challenging.
As Australia grapples with balancing environmental protection and economic development, the proposed reforms represent a cautious step forward. Their ultimate impact will depend on the government’s ability to navigate political opposition and implement robust standards that prioritize environmental sustainability.
