Australian news, and some related international items

Australia’s environmental law: the danger in moving powers to the States

‘We are relying on a pinky promise’: The problem with the Government moving its environmental powers to states, ABC , By national science, technology and environment reporter Michael Slezak,   13 Sept, 20

As the NSW Government descends into chaos over koala protections, the Federal Government is in a scramble trying to hand over its environmental powers to the states.

Just over a month ago — perhaps an eternity in the political news cycle — Environment Minister Sussan Ley welcomed a landmark review into our national environment laws by reaching across the aisle…….

After years of partisanship on what to do with the laws, Professor Graeme Samuel’s recommendations laid out a middle path. It delivered the deregulation sought by the Morrison Government, while protecting the environment with fundamental safeguards.

With that middle path laid out, Labor also came to the table, dropping their long-held opposition to deregulation.

Fast-forward just five weeks and the Government introduced amendments which, to a large degree, rehashed Abbott-era deregulation amendments, without yet introducing the fundamental protections recommended by Professor Samuel.

And partisanship is back at full throttle.

The Government rushed the amendment through the upper house, quashing debate. The crossbench and Labor called foul, and now conservationists have written to the United Nations calling for it to “express alarm” about the changes. And now the crossbenchers in the Senate appear set to block the bill.

How did we get here and where is all this going? And what could all this mean for the environment?

An old policy by a new name

For years, the Coalition has had one overriding reform planned for Australia’s environmental laws: devolving federal assessment and approval powers to the states.

When a proposed project — think a mine, farm or building — has the potential to damage matters of national environmental significance, it requires environmental approval from both state and federal governments.

Under Abbott, the devolution of federal approval powers to states was called a “one stop shop”. It’s been relabelled “single touch approval” under Morrison but it’s the same thing.

Graeme Samuel’s review recommended that devolution of powers to states proceed with some key safeguards to ensure the environment is protected.

Samuel called for an “independent cop on the beat” — a regulator that would function at arm’s length from the minister. That was immediately rejected.

But crucially, Samuel said the deregulation must be built on what he called “national standards” that would ensure state processes protected the environment. He described these as the “foundation for effective regulation”.

Minister Ley immediately accepted that recommendation.

But last week she introduced a bill to Parliament that devolved approval powers to states, without any reference to national standards.

Rather than allow a parliamentary debate of the matter, the Government rushed it through the House of Representatives, blocking debate, stopping crossbenchers from moving amendments to the bill and sent it straight to the Senate — although too late for it to be considered there this month.

Labor, the Greens and crossbenchers were furious, claiming that democracy was under threat. That anger seemed to jump to the Senate, with crossbenchers now looking to vote the bill down.

The missing national standards

The Minister still insists there will be national standards; that they will be legally enforceable; and they will be “Commonwealth led”. So why weren’t they in that bill?

In an interview with the ABC last week, Minister Ley said the Government already had a bill “ready” that would set up the framework for national standards and would introduce it soon………….

Does it matter?

Dr Megan Evans, an environmental policy expert from UNSW, says the law passed by the lower house gives the minister too much latitude to set the standards.

“It provides the Commonwealth with total discretion over the terms if entering into a bilateral agreement,” Dr Evans said. “This means we are relying on a pinky promise from the Government.”

Dr Peter Burnett from the ANU College of Law said “the mode of setting the Standards does make a difference”. According to him, it’s a matter of who will be able to enforce those standards.

“If they form part of a bilateral agreement between two governments, then it is likely that only the Commonwealth could take action against a state that did not comply with the standards, as only the parties to an agreement can enforce it,” Dr Burnett said.

If the standards were in federal legislation, then it is likely that third parties — like environmental groups — could challenge non-compliance by states in court.

And who’s enforcing the laws could make all the difference.

Of all the threatened species habitat cleared since the laws were first put in place, only seven per cent of it was even assessed under the act.

And according to the Auditor General, among projects that were assessed and approved by the Federal Government, 80 per cent were non-compliant or contained errors.

But how the Government will get these standards agreed to by states — without money on the table to help apply them — is still up in the air.

And this week in NSW, we saw just how fraught state environmental laws can be.

September 14, 2020 - Posted by | AUSTRALIA - NATIONAL, environment, politics

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