On why we shouldn’t devolve environmental protections to the states (without extreme caution)

A melomys from the Torres Strait which gives an idea of the size of Bramble Cay melomys. Image courtesy Rebecca Diete and Luke Leung

News from the front desk 490: It’s always sobering to be reminded that Australia is the extinction capital of the world.

We hold the title as the first country to lose an animal to climate change (the Bramble Cay melomys’ habitat was obliterated by rising sea levels on its home island on the Torres Strait). We’re also now watching the clock until national treasures like koalas the Leadbeater’s Possum, Victoria’s faunal emblem, cease to exist.

The truth is that many of these failings have been a product of poorly functioning and barely enforced environmental protections, allowing rampant deforestation and habitat destruction to make way for shiny new development, mines and farms.

The fact that something like the koala, which was once known for being rather ubiquitous (along the eastern seaboard, at least), is in strife, suggests that we’ve got a serious problem when it comes to looking after our bushlands.

The climate change-fuelled bushfires have really just been the cherry on what was already a very dry, crumbly cake.

It’s a dire state of affairs that’s on track to get worse if the federal government decides to pick and choose what it likes from the long-awaited review of the federal Environmental Protection and Biodiversity Conservation Act (EPBC Act) by Professorial fellow at the Monash Business School, Graeme Samuel.

Handed down on Monday, Samuel recognises that the legislation, which was first installed by the Howard government 20 years ago, isn’t doing its job.

“It is not fit to address current or future environmental challenges,” the review states.

The review calls for widespread reform, including a redrafting of a new Act (or Acts), new national environmental standards and a new independent regulator.

Critically, Samuel wants to see a bigger focus on enforcement and outcomes rather than process. At the moment, Australian National University ecologist Professor Sarah Legge says the law makes it easy to list a species as threatened and make a plan for its recovery. But, rather incredibly, there’s no legal requirement to follow through on the carefully drafted recovery plan, nor provide funding to do so. Legge says this is a big problem to be rectified.

While the review itself has been relatively well received by environmental groups and other political parties, or components of it at least (it doesn’t suggest a “climate trigger”, which many environmental groups were calling for), the federal government’s response has attracted widespread criticism.

In a positive start, Environment Minister Sussan Ley has accepted the recommendation for national environmental standards.

The second part is that the standards, which are outlined in prototype form in the interim report, will form the basis of agreements with states to allow federal approvals to be devolved to the states.

She’s also extinguished any hope for an independent regulator to act as a “cop on the beat”, which leaves any lingering powers to pull states into line at the fingertips of the minister.

The devolvement to the states all aligns neatly with the federal government’s pursuit of a “single touch” environmental approvals process as part of its Covid-recovery.

While a properly resourced, carefully devised “one-stop-shop” for environmental approvals isn’t, in theory, a bad idea, it’s important to ensure that removing federal responsibility won’t weaken the protections still further.

Based on the federal government’s announcements on Monday, Suzanne Milthorpe, the Wilderness Society’s national environment laws campaign manager, isn’t convinced the reforms will work in the interests of our vulnerable flora and fauna.

For a start, she says animals, plants and rivers don’t pay much attention to our invisible state borders, which makes state-based legislation to protect these critical animals and habitats rather impractical.

States and territories are also more likely to benefit financially, and sometimes politically, from projects that destroy the environment.

The Franklin River dam is one of the earliest examples, with some of Australia’s earliest environmental activists fighting tooth and nail to stop damming in the key wilderness area, which was proposed by the Tasmanian government’s state-owned hydro business to produce cheap electricity and as many as 10,000 jobs (so the government claimed).

In 1983 the Hawke government took the state government to the High Court to force them to stop work under the assertion that it broke the country’s international conservation obligations.

State forests are another money maker. Through the regional forestry agreement, the likes of state-owned logging corporation VicForests haven’t had to comply with federal environment laws for around 20 years, putting endangered species (like the Leadbeater’s possum) at risk.

In May, the federal court ruled VicForests had breached laws related to threatened species after environmental group, the Friends of Leadbeater’s Possum, challenged logging by the state-owned forestry corporation in Victoria’s central highlands.

“The logging industry has operated for 20 years as if it doesn’t have to comply with our federal environment laws because of regional forest agreements,” Danya Jacobs, a senior lawyer with Environmental Justice Australia, which represented Friends of the Leadbeater’s Possum, said at the time of the ruling.

“This case overturns that position and clearly finds that the exemption can and will be lost where threatened species protections are not complied with.”

The ruling has even prompted hardware giant Bunnings to stop procuring its timber from VicForests.

States and territories also start rubbing their hands to receive royalties from resources projects, such as the controversial Narrabri Gas Project in NSW.

Doug Storer from the Warren Pipeline Action Group is among the opponents and has argued that the project risks destroying the Great Artesian Basin and the Pilliga State Forest.

Devolving to the states also puts Australia at risk of falling short(er) of the many international treaties that the EPBC Act was set up to address, which includes the UN Convention on Biological Diversity.

The danger of the environment minister’s ambition to cut green tape as quickly as possible is that it might lock in a set of rushed-through, inadequate environmental standards for states to adhere to – all based on the prototype standards proposed in Samuel’s review, which Milthorpe says need more work before the final review is handed down.

For example, she says that the prototype standards talk about protecting threatened species through “no net loss of habitat”, which doesn’t solve the problem for a threatened species that needs its habitat actively restored and regenerated if it wants a fighting chance of removing itself from the threatened species list.

Milthorpe also points out that Samuel includes handing over power to states as a recommendation where strong standards are in place and there’s confidence that decisions are taken in line with those standards, including an independent watchdog to ensure they’re enforced.

If we’re not careful, Australia is at real risk of losing its incredibly diverse wildlife and ecosystems. Let’s not let it happen.

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Comments

2 Responses to “On why we shouldn’t devolve environmental protections to the states (without extreme caution)”

  • warri oviedo says:

    Thankyou for this article. Our homeland security is continuing to shrivel in front of our faces but let’s not just take this bitter pill, sugarcoated by apathy and ignorance.

  • janet harwood says:

    Giving National Environmental powers to the States is bringing the Game of Mates from the property Market to the fauna and flora of Australia – it will be the end of the Natural World bushfires, through shifting baselines, cumulative environmental impacts and spiralling extinctions. What a sad time for a Continent already in Crisis in its fragile environment …

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