Australia’s waste export ban becomes law, but the crisis is far from over

Jenni Downes, Monash University; Damien Giurco, University of Technology Sydney, and Rose Read, University of Technology Sydney

Last week, Australia took an important step towards addressing the ongoing effects of the 2018 waste crisis. The federal parliament passed legislation banning the export of unprocessed waste overseas via the Recycling and Waste Reduction Act 2020.

The new law provides an impetus to reconfigure local infrastructure to reprocess and re-manufacture recyclables onshore. It should create local demand to reuse these recovered materials in infrastructure, packaging and products as part of a move towards a circular economy.

It’s encouraging to see the federal government finally providing clear policy direction for the waste industry and making Australia more responsible for how our waste is recovered. But it’s far from enough to temper the waste crisis.

Is exporting waste ‘bad’?

The total amount of waste generated in 2018-19 went up 10% from just two years earlier — and only half of that was recycled. Meanwhile, opportunities to export material for overseas recycling have been drying up.

In 2019, Australia exported an estimated 7% of all waste generated. The proportion is much higher for the household commingled recycling bin, where around one-third of all paper and plastics were exported to overseas trading partners, particularly in Asia.

Exporting material recovered from waste isn’t “bad” per se, particularly when you consider Australia imports more manufactured goods than we make locally. Currently, our economy remains structured around exporting virgin (new) and recyclable materials, which are made into products offshore and then re-imported.

So, when we export well-sorted, quality, recyclable material, it’s no different than exporting, say, iron ore.

However, just dumping “rubbish” on other countries is not acceptable. And even exporting potentially recyclable material without taking responsibility for how the material will be recovered overseas leads to a greater risk of it being dumped or burned.

Stages of recycling Australia’s mixed kerbside wastes.
Downes, J. (2020)

Such an economic structure makes us reliant on international markets and the policy priorities of those countries.

This was highlighted in 2018 when China banned waste imports of all but the highest purity, with other countries in Asia following suit. This shocked Australia’s (and the world’s) recycling industry, and led to plummeting prices for certain waste materials and increased stockpiling and short-term landfilling.

What’s more, when developing countries import too much waste or low-quality material, their infrastructure and markets can become overwhelmed. The waste then ends up “leaking” into the environment, including the ocean, as litter.

A ban on Australia’s waste export was first announced in August 2019 to help address our responsibility for ocean plastics. The ban could localise much of Australia’s reprocessing — and possibly, manufacturing — activity.

What does the ban involve?

The new law passed last week will complement and extend existing laws on hazardous waste and product stewardship.

Effectively, the ban prohibits the export of specific raw (unprocessed) materials collected for recycling: plastic, paper, glass and tires. Any materials that have been re-processed and turned into other “value-added” materials (those ready for further use) can still be exported under the law. For example, a single type of plastic cleaned and shredded into “flakes”, or cleaned packaging glass crushed into “cullet”.

The law is accompanied by commitments from the federal and state governments to help address some of the critical systemic barriers to onshore processing, such as the lack of existing infrastructure and domestic markets for reprocessed material.

No room for error

Without sufficient transition measures, it’s possible the ban could lead to more waste ending up in landfills, stockpiling or illegal dumping.

For the ban to be effective, a lot of things need to go right. This includes:

sufficient time to plan, get approval and build the new recycling infrastructure
sufficient financing to test new technologies and build new facilities
improving the quality of collected materials, as contamination increases collection and sorting costs and reduces the value of recyclable materials
creating local demand and markets to reuse and remanufacture recycled plastics, paper, glass and tires
holding fast to the principle that “waste-to-energy” is just a last line of defence against landfill for waste materials with no current or potential future value.

Getting the transition right will be critical for Western Australia, South Australia, Queensland and the Northern Territory, which are particularly lacking in proper infrastructure.

It’s also important for NSW and Victoria because of the high proportion of banned materials they currently export. For example, over 80% of Australia’s exported plastic was from NSW and Victoria, while 90% of exported glass was from Victoria.

Ultimately, it’s far better for the environment to reduce the generation of waste in the first place.
Shutterstock

Increasing momentum

Given exports are only a part of overall waste material flows, it’s great to see the ban is part of a suite of responses. This includes the Recycling Modernisation Fund, and the recent $10 million National Product Stewardship Investment Fund and Product Stewardship Centre of Excellence.

Still, we shouldn’t lose sight of the fact these are predominantly “end-of-pipe” solutions.

While there are promising efforts from industry and government to minimise waste by improving the design of Australian-made products and packaging, more should be done.

Options include minimum design standards and extended producer responsibility, which would make manufacturers and retailers financially responsible for ensuring their products are recycled. This would incentivise better “up the chain” (design) choices.

And as a major importer of manufactured products, Australia also needs to manage what’s coming into the country through improved standards, such as minimum requirements for recyclability and durability, or prohibiting problematic materials in inferior products that will quickly become waste.

Ultimately, it’s far better for the environment to reduce the generation of waste in the first place. Together with better design, this will move us towards a more circular economy.

If Australia’s new waste and recycling law represents increasing momentum towards a circular economy in Australia, rather than a pinnacle on which we rest, it will be an excellent step forward.

Jenni Downes, Research Fellow, BehaviourWorks Australia (Monash Sustainable Development Institute), Monash University; Damien Giurco, Professor of Resource Futures, University of Technology Sydney, and Rose Read, Adjunct professor, University of Technology Sydney

This article is republished from The Conversation under a Creative Commons license. Read the original article.

Ardern’s government and climate policy: despite a zero-carbon law, is New Zealand merely a follower rather than a leader?

David Hall, Auckland University of Technology

Back in pre-COVID times last year, when New Zealand passed the Zero Carbon Act, Prime Minister Jacinda Ardern insisted “New Zealand will not be a slow follower” on climate change.

It struck a clear contrast with the previous National government’s approach, which the then prime minister, John Key, often described as being “a fast follower, not a leader”.

He had lifted this language from the New Zealand Institute’s 2007 report, which argued against “lofty rhetoric about saving the planet or being a world leader”. Instead, it counselled New Zealand to respond without “investing unnecessarily in leading the way”.

Key was eventually accused of failing to live up to even this unambitious ideal — New Zealand came to be known as a climate laggard.

With her hand on the nation’s rudder since 2017, has Ardern done any better?
Is New Zealand a climate leader, and not merely a symbolic leader on the international speaking circuit but a substantive leader that sets examples for other countries to follow?

Finally a fast follower

On my analysis of Ardern’s government, New Zealand is now, finally, a fast follower.

The government’s climate policy is best evaluated from three perspectives: the domestic, international and moral.

From a domestic perspective, where a government is judged against the governments that preceded it, Ardern is entitled to declare (as she did when the Zero Carbon Act was passed) that:

We have done more in 24 months than any government in New Zealand has ever done on climate action.

But at the international level, where New Zealand is judged against the actions of other countries and its international commitments, it is more a fast follower than a leader, defined by policy uptake and international advocacy rather than innovation.

At the moral level, where New Zealand is judged against objectives such as the 1.5°C carbon budget, its actions remain inadequate. A recent report by Oxfam notes New Zealand is off-track for its international obligations.

The nation’s record looks even worse when we factor in historical responsibilities. From this perspective, New Zealand, like other countries in the global north, is acting with an immoral lack of haste. It is for the next government to go from being merely transitional to truly transformational.

Turning in the right direction

The formation of the Ardern government in 2017 inaugurated a phase of rapid policy development, drawing especially from UK and EU examples. But the evidence of substantive climate leadership is much less clear.

The government’s most prominent achievement is the Zero Carbon Act, which passed through parliament with cross-party support in November 2019. This establishes a regulatory architecture to support the low-emissions transition through five-yearly carbon budgets and a Climate Change Commission that provides independent advice.

Its other major achievement, less heralded and more disputed, was the suspension of offshore oil and gas permits. This supply-side intervention is surely Ardern’s riskiest manoeuvre as prime minister, not only on climate but on any policy issue.

It stands as an exception to her careful, incremental style. It signalled that the Crown’s historical indulgence of the oil and gas sector was coming to an end.

But both policies involve followership. The Zero Carbon Act is closely modelled on the UK’s Climate Change Act 2008 and the leadership came from outside government. It was initially championed by the youth group Generation Zero. The independent Parliamentary Commissioner for the Environment then picked it up.

Similarly, the offshore oil and gas ban builds upon longstanding activism from Māori organisations and activists. In 2012, Petrobras withdrew prematurely from a five-year exploration permit after resistance from East Cape iwi (tribe) Te Whānau-ā-Apanui. New Zealand was also only following in the footsteps of more comprehensive moratoriums elsewhere, such as Costa Rica in 2011 and France in 2017.

Towards climate leadership

There are many other climate-related policies, including:

the One Billion Trees Program
the NZ$100 million Green Investment Finance fund
the pledge to transition to 100% renewable electricity
investment in the new clean energy centre Ara Ake
a green hydrogen strategy that includes a nationwide hydrogen refuelling network
completion of the first national climate change risk assessment
budget boosts for rail and sustainable land use
the ending of subsidies for irrigation schemes
a regional fuel tax in Auckland to fund public transport
NZ$1.1 billion for nature-based jobs
enhanced climate-aligned investment in the research and innovation sector
the reincorporation of climate mitigation into resource consenting processes for local government
and the adoption of the Task Force on Climate-related Financial Disclosures (TCFD) framework for mandatory reporting of climate-related risks.

Only the last policy is a world first. Even then, private companies throughout the world are already adopting this approach without a mandate from government.

In all likelihood, New Zealand’s greatest claim to pioneering policy is its decision to split targets for carbon dioxide and methane in the Zero Carbon Act, which means agricultural methane is treated separately. If the science behind this decision eventually informs the international accounting of greenhouse gases, it will have major ramifications for developing countries whose economies also rely heavily on agriculture.

Not all proposed policies made it through the political brambles of coalition government. Most conspicuously, commitments to an emissions-free government vehicle fleet, the introduction of fuel-efficiency standards, and feebates for light vehicles were all thwarted.

This is symptomatic of this government’s major weakness on climate. Its emphasis on institutional reforms rather than specific projects will yield long-term impacts, but not produce the immediate emissions reductions to achieve New Zealand’s 2030 international target under the Paris Agreement. This is where a future government can make the rhetoric of climate leadership a reality.

This article is adapted from an upcoming book – Pioneers, Leaders and Followers in Multilevel and Polycentric Climate Governance.

David Hall, Senior Researcher in Politics, Auckland University of Technology

This article is republished from The Conversation under a Creative Commons license. Read the original article.

National cabinet just agreed to big changes to environment law. Here’s why the process shouldn’t be rushed

Megan C Evans, UNSW and Peter Burnett, Australian National University

Federal and state governments on Friday resolved to streamline environment approvals and fast-track 15 major projects to help stimulate Australia’s pandemic-stricken economy.

The move follows the release this week of Professor Graeme Samuel’s preliminary review of the law, the 20-year-old Environment Protection and Biodiversity Conservation (EPBC) Act. Samuel described the law as “ineffective” and “inefficient” and called for wholesale reform.

At the centrepiece of Samuel’s recommendations are “national environmental standards” that are consistent and legally enforceable, and set clear rules for decision-making. Samuel provides a set of “prototype” standards as a starting point. He recommends replacing the prototypes with more refined standards over time.

By the end of August, the Morrison government wants Parliament to consider implementing the prototype standards.

But rushing in the new law is a huge concern, and further threatens the future of Australia’s irreplaceable natural and cultural heritage. Here, we explain why.

Aerial view of a Tasmanian forest — Rushing through changes to environment laws may damage nature in the long run.
Rob Blakers/AAP

Semantics matter

Samuel’s review said legally enforceable national standards would help ensure development is sustainable over the long term, and reduce the time it takes to have development proposals assessed.

We’ve identified a number of problems with his prototype standards.

First, they introduce new terms that will require interpretation by decision-makers, which could lead the government into the courts. This occurred in Queensland’s Nathan dam case when conservation groups successfully argued the term environmental “impacts” should extend to “indirect effects” of development.

Second, there’s a difference in wording between the prototype standards and the EPBC Act itself, which might lead to uncertainty and delay. Samuel suggested a “no net loss” national standard for vulnerable and endangered species habitat, and “net gain” for critically endangered species habitat. But this departs from current federal policy, under which environmental offsets must “improve or maintain” the environmental outcome compared to “what is likely to have occurred under the status quo”.

Third, the outcomes proposed under the prototype standards might themselves cause confusion. The standards say, overall, the environment should be “protected”, but rare wetlands protected under the Ramsar Convention should be “maintained”. The status of threatened species should “improve over time” and Commonwealth marine waters should be “maintained or enhanced”, but the Great Barrier Reef Marine Park needs to be “sustained for current and future generations”.

And fourth, the standards don’t rule out development in habitat critical to threatened species, but require that “no detrimental change” occurs. But in reality, can there be development in critical habitat without detrimental change?

The Great Barrier Reef should be sustained for future generations.
Jurgen Freund/AP

Mind the gap

The escape clause in the prototype standards presents another problem. A small, yet critical recommendation in the appendix of Samuel’s report says:

These amendments should include a requirement that the Standards be applied unless the decision-maker can demonstrate that the public interest and the national interest is best served otherwise.

Which decision maker is he referring to here – federal or state? If it’s the former, will there be a constant stream of requests to the federal environment minister for a “public interest” exemption on the basis of jobs and economic development? If the latter, can a state decision-maker judge the “national interest”, especially for species found in several states, such as the koala?

Samuel says the “legally enforceable” nature of national standards are the foundation of effective regulation. But both he and Auditor-General Grant Hehir in his recent report found existing enforcement provisions are rarely applied, and penalties are low.

Federal Environment Minister Sussan Ley has already ruled out Samuel’s recommendation that an independent regulator take responsibility for enforcement. But the record to date does not give confidence that government officials will enforce the standards.

Temporary forever?

Both Ley and Samuel suggested the interim standards would be temporary and updated later. But history shows “draft” and “interim” policies have a tendency to become long-term, or permanent.

For example, federal authorities often allow a proponent to cause environmental damage, and compensate by improving the environment elsewhere – a process known as “offsetting”. A so-called “draft” offset policy drawn up in 2007 actually remained in place for five years until 2012, when it was finally replaced. And the federal environment department recently accepted offsets based on the 2007 “draft” rather than the current policy.

The best antidote is to ensure the first tranche of national standards is comprehensive, precise and strong. This can only occur if genuine consultation occurs, legislation is not rushed, and the government commits to improving the “antiquated” data and information systems the standards rely on.

Adult and baby koala on a pile of felled trees. — Environmental offsets allow a proponent to damage the environment in one location and improve it in another.
WWF

Negotiation to the lowest bar

According to the Samuel report, the proposed standards “provide a clear pathway for greater devolution in decision-making” that will enable states and territories to conduct federal environmental assessments and approvals. This proposed change has been strongly and consistently criticised by scientists and environmental lawyers.

Ley also appears to be wildly underestimating the time and effort required to negotiate the standards with the states and territories.

Take the Gillard government’s attempts to overcome duplication between state and federal law by establishing a “one-stop-shop” approvals process. Prime Minister Julia Gillard pulled the plug on negotiations after a year, declaring the myriad agreements being sought by various states was the “regulatory equivalent of a Dalmatian dog”.

The Abbott government’s negotiations for a similar policy lasted twice as long but suffered a similar fate, lapsing with the dissolution of Parliament in 2016.

Samuel warned refining the standards should not involve “negotiated agreement with rules set at the lowest bar”. But vested interests will inevitably seek to influence the process.

Proceed with caution

We have identified significant problems with the prototype standards, and more may emerge.

Ley’s rush to amend the Act appears motivated more by wanting to cut so-called “green tape” than by evidence or environmental outcomes.

Prototypes are meant to be stress-tested. But if the defects are not corrected before hurrying into negotiations and legislative change, Australia might go another 20 years without effective environment laws.

Update: This article has been amended to reflect the national cabinet decision.

Megan C Evans, Lecturer and ARC DECRA Fellow, UNSW and Peter Burnett, Honorary Associate Professor, ANU College of Law, Australian National University

This article is republished from The Conversation under a Creative Commons license. Read the original article.

Environment Minister Sussan Ley is in a tearing hurry to embrace nature law reform – and that’s a worry

Graeme Samuel, left and Environment Minister Sussan Ley.
Lukas Coch/AAP

Peter Burnett, Australian National University

The Morrison government on Monday released a long-awaited interim review into Australia’s federal environment law. The ten-year review found Australia’s natural environment is declining and under increasing threat. The current environmental trajectory is “unsustainable” and the law “ineffective”.

The report, by businessman Graeme Samuel, called for fundamental reform of the law, know as the Environmental Protection and Biodiversity Conservation (EPBC) Act. The Act, Samuel says:

[…] does 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.

Samuel confirmed the health of Australia’s environment is in dire straits, and proposes many good ways to address this.

Worryingly though, Environment Minister Sussan Ley immediately seized on proposed reforms that seem to suit her government’s agenda – notably, streamlining the environmental approvals process – and will start working towards them. This is before the review has been finalised, and before public comment on the draft has been received.

This rushed response is very concerning. I was a federal environment official for 13 years, and from 2007 to 2012 was responsible for administering and reforming the Act. I know the huge undertaking involved in reform of the scale Samuel suggests. The stakes are far too high to risk squandering this once-a-decade reform opportunity for quick wins.

A dead koala outside Ipswich. Federal environment laws have failed to protect threatened species.
Jim Dodrill/The Wilderness Society

‘Fundamental reform’ needed: Samuel

The EPBC Act is designed to protect and conserve Australia’s most important environmental and heritage assets – most commonly, threatened plant and animal species.

Samuel’s diagnosis is on the money: the current trajectory of environmental decline is clearly unsustainable. And reform is long overdue – although unlike Samuel, I would put the blame less on the Act itself and more on government failings, such as a badly under-resourced federal environment department.

Samuel also hits the sweet spot in terms of a solution, at least in principle. National environmental standards, legally binding on the states and others, would switch the focus from the development approvals process to environmental outcomes. In essence, the Commonwealth would regulate the states for environmental results, rather than proponents for (mostly) process.

Samuel’s recommendation for a quantum shift to a “single source of truth” for environmental data and information is also welcome. Effective administration of the Act requires good information, but this has proven hard to deliver. For example the much-needed National Plan for Environmental Information, established in 2010, was never properly resourced and later abolished.

Importantly, Samuel also called for a new standard for “best practice Indigenous engagement”, ensuring traditional knowledge and views are fully valued in decision-making. The lack of protection of Indigenous cultural assets has been under scrutiny of late following Rio Tinto’s destruction of the ancient Indigenous site Juukan caves. Reform in this area is long overdue.

And notably, Samuel says environmental restoration is required to enable future development to be sustainable. Habitat, he says “needs to grow to be able to support both development and a healthy environment”.

Many in the public are concerned at the state of Australia’s environment.
Dean Lewins/AAP

Streamlined approvals

Samuel pointed to duplication between the EPBC Act and state and territory regulations. He said efforts have been made to streamline these laws but they “have not gone far enough”. The result, he says, is “slow and cumbersome regulation” resulting in significant costs for business, with little environmental benefit.

This finding would have been music to the ears of the Morrison government. From the outset, the government framed Samuel’s review around a narrative of cutting the “green tape” that it believed unnecessarily held up development.

In June the government announced fast-tracked approvals for 15 major infrastructure projects in response to the COVID-19 economic slowdown. And on Monday, Ley indicated the government will prioritise the new national environmental standards, including further streamlining approval processes.

Here’s where the danger lies. The government wants to introduce legislation in August. Ley said “prototype” environmental standards proposed by Samuel will be introduced at the same time. This is well before Samuel’s final report, due in October.

I believe this timeframe is unwise, and wildly ambitious.

Even though Samuel proposes a two-stage process, with interim standards as the first step, these initial standards risk being too vague. And once they’re in place, states may resist moving to a stricter second stage.

To take one example, the prototype standards in Samuel’s report say approved development projects must not have unacceptable impacts on on matters of national environmental significance. He says more work is needed on the definition of “unacceptable”, adding this requires “granular and specific guidance”.

I believe this requires standards being tailored to different ecosystems across our wide and diverse landscapes, and being specific enough to usefully guide the assessment of any given project. This is an enormous task which cannot be rushed. And if Samuel’s prototype were adopted on an interim basis, states would be free, within some limits, to decide what is “unacceptable”.

It’s also worth noting that the national standards model will need significant financial resources. Samuel’s model would see the Commonwealth doing fewer individual project approvals and less on-ground compliance. However, it would enter a new and complex world of developing environmental standards.

The government has said little about improving the environment on the ground.
Eric Vanderduys/BirdLife Australia

More haste, less speed

Samuel’s interim report will go out for public comment before the final report is delivered in October. Ley concedes further consultation is needed on some issues. But in other areas, the government is not willing to wait. After years of substantive policy inaction it seems the government wants to set a new land-speed record for environmental reform.

The government’s fixation with cutting “green tape” should not unduly colour its reform direction. By rushing efforts to streamline approvals, the government risks creating a jumbled process with, once again, poor environmental outcomes.

Peter Burnett, Honorary Associate Professor, ANU College of Law, Australian National University

This article is republished from The Conversation under a Creative Commons license. Read the original article.

We must rip up our environmental laws to address the extinction crisis

The Christmas Island pipistrelle (Pipistrellus murrayi) became extinct in 2009.
Lindy Lumsden

Don Driscoll, Deakin University; Desley Whisson, Deakin University; Euan Ritchie, Deakin University; Mike Weston, Deakin University; Raylene Cooke, Deakin University, and Tim Doherty, Deakin University

Humans are causing the Earth’s sixth mass extinction event, with an estimated one million species at risk of extinction.

Addressing this crisis requires transformative change, including more effective environmental law and implementation.

Improved legislation is one of five main levers for realising change identified in the recent United Nation’s global biodiversity report and the key lesson arising from the Senate’s interim report into Australia’s faunal extinction crisis.

The Senate’s interim report, based on 420 submissions and five hearings, shows Australia is a world leader in causing species extinctions, in part because Australia’s systems for conserving our natural heritage are grossly inadequate.

To allow the continued erosion of this continent’s spectacular and remarkable array of globally unique plants and animals is a travesty of the highest order.

Inadequate protections

One of the problems is species may decline from common to extinct quite rapidly – faster than the time it takes species to be listed as threatened under the federal Environment Protection and Biodiversity Conservation (EPBC) Act.

The Christmas Island forest skink was formally listed as a threatened species only four months before the last individual died in captivity, but 15 years after the decline was first reported.

Extinction of the forest skink, Bramble Cay melomys and Christmas Island pipistrelle between 2009 and 2014 may have been averted if the risk was formally recognised in a more timely manner and effective conservation actions, such as captive breeding programs, were implemented.

Currently, if a species is not listed, it is not a “matter of national environmental significance” and federal agency staff generally have no legal basis for acting to protect it.

The Christmas Island forest skink (left), Bramble Cay melomys (centre) and Christmas Island pipistrelle (right) all became extinct in 2009-14.
Left: Hal Cogger; centre: Queensland Department of Environment and Heritage Protection; right: Lindy Lumsden.

The black-throated finch has been listed as threatened on the EPBC Act for 14 years and during this time 600,000 ha of potential finch habitat has been destroyed. Worse still, five large coal mines, including the Carmichael Coal Mine, have been given approval (pending environmental conditions being met in Queensland) to clear more than 29,000 ha of black-throated finch habitat in one of its final strongholds, the Galilee Basin.

Coal mining will drive these finches into the critically endangered threat category, pushing them perilously close to extinction, and all with federal government approval.

The controversial Toondah Harbour development in Brisbane is another example of how ministerial discretion can allow disastrous environmental outcomes. The project plans to build 3,600 apartments on wetlands that provide habitat for migratory waterbirds, including the critically endangered eastern curlew.

Despite being described as “clearly unacceptable” by the federal environment department and knocking it back twice, the minister allowed a third submission to proceed for further assessment.

It was reported this decision was made in the context of legal threats and donations from the developer in question. If true, this context would make it very difficult to make impartial decisions that protect biodiversity, as environmental law intends.

Increasing ministerial discretion was a key result of 2007 amendments to the EPBC act, which meant recovery plans were no longer required for threatened species.

The amendment allowed the minister to develop “conservation advices” instead of recovery plans. This amendment downgraded protections for threatened species because a minister can legally make decisions that are inconsistent with conservation advice, but not a recovery plan.

New environmental legislation

Based on these examples and many others that demonstrate the failings of current laws, the interim report concludes that we should rip up the EPBC act and develop stronger and more effective environmental legislation.

This includes establishing an independent Environmental Protection Agency to ensure enforcement of environmental laws, and, in a forward-looking addition by the Greens senators, an independent National Environmental Commission to monitor effectiveness of environmental legislation and propose improvements.

Australia needs a well-resourced, independent umpire for the environment, with powers to investigate environmental concerns and scrutinise government policy, akin to New Zealand’s Parliamentary Commissioner for the Environment. While Australia’s Threatened Species Commissioner is an excellent champion for the environment, this role provides no ability to question government actions regarding environmental protection and nature conservation.

Although replacing the EPBC act with new legislation may seem like a radical step to some (but not all), the interim Senate report, and the global UN report, have independently concluded major reform is essential. We are not in a moment of time when tweaking the current system will do the trick.

Changing Australia’s environmental legislation is a relatively minor update compared with the fundamental social and economic changes recommended by the UN report.

Such changes are already recommended by scientific societies like the Ecological Society of Australia, non-government organisations like Birdlife Australia and the Australian Conservation Foundation, and are demanded by a growing section of society. New, fit-for-purpose legislation must be enforceable, apolitical and responsive.

Opinion polls show that the level of environmental concern is higher in Australia than in other countries , while 29% of ABC Vote Compass respondents ranked the environment as the most important issue, up from 9% in 2016.

This groundswell of environmental concern has spawned mass protest movements like Extinction Rebellion. Young Australians also have shown their concern. In March 2019, thousands of school students took part in 50 rallies across the country to protest against “the destruction of our future”.

Decisions about what and how much we buy, what we eat, how much we travel and by what means, and family size, all contribute to our environmental footprints, and are the fundamental instigators of the biodiversity crisis.

However, we must also look to our political leaders to support effective change. The simplest and most powerful action you can take to reverse the extinction crisis is to vote for a party with policies best aligned with credible scientific advice on how we can get out of this mess.

Don Driscoll, Professor in Terrestrial Ecology, Deakin University; Desley Whisson, Lecturer in Wildlife and Conservation Biology, School of Life and Environmental Sciences, Deakin University; Euan Ritchie, Associate Professor in Wildlife Ecology and Conservation, Centre for Integrative Ecology, School of Life & Environmental Sciences, Deakin University; Mike Weston, Associate Professor, Deakin University; Raylene Cooke, Associate Professor, Deakin University, and Tim Doherty, Alfred Deakin Post-doctoral Research Fellow, Deakin University

This article is republished from The Conversation under a Creative Commons license. Read the original article.

Death by 775 cuts: how conservation law is failing the black-throated finch

April Reside, The University of Queensland and James Watson, The University of Queensland

Nearly 20 years ago, Australia adopted national environmental legislation that was celebrated widely as a balanced response to Australia’s threatened species crisis. In the same year, Queensland introduced its Vegetation Management Act. Together, these laws were meant to help prevent further extinctions.

But have they worked?

A famous finch

We investigated whether these laws had successfully protected the habitat of the endangered southern black-throated finch.

Our study found that, despite being nominally protected under federal environmental law, habitat for the species has continued to be cleared. Just three out of 775 development applications that potentially impacted the endangered southern black-throated finch were knocked back, according to our new research.

Defining exactly what is habitat for the black-throated finch is tricky – we don’t have oodles of data on their habitat use over time, and the extent of their sightings has declined substantially. But Queensland has excellent vegetation mapping, and we recorded all of the vegetation types in which the southern black-throated finch has been seen.

We then mapped the extent of this habitat in three different time periods: historically; at the advent of the environmental laws (2000); and current day.

Clear danger

We found that most of the black-throated finch’s habitat had been cleared before 2000, mainly for agriculture before the mid-1970s. The black-throated finch hasn’t been reliably seen in New South Wales since 1994 and is listed there as “presumed extinct”.

We looked at all the development proposals since 2000 that were referred to the federal government due to their potential impact on threatened species. 775 of these development proposals overlapped areas of potential habitat for the black-throated finch.

Only one of these projects – a housing development near Townsville – was refused approval because it was deemed to have a “clearly unacceptable” impact to the black-throated finch.

In addition to these projects, over half a million hectares of the cleared habitat were not even assessed under federal environmental laws.

We estimate that the species remains in just 12% of its original range. Yet despite this, our study shows that the habitat clearing is still being approved within the little that is left.

So in theory, Australia’s and Queensland’s laws protect endangered species habitat. But in practice, a lot has been lost.

Critical habitat

The highest-profile development proposal to impinge on black-throated finch habitat loss is Adani’s Carmichael coalmine and rail project. Adani has been given approval to clear or otherwise impact more than 16,000 hectares of black-throated finch habitat, a third of which Adani deemed “critical habitat” But there are four other mines in the Galilee Basin that have approved the clearing of more than 29,000 ha in total of black-throated finch habitat.

But it’s not just the mines. In 2018 the federal government approved clearing of black-throated finch habitat for a housing estate and a sugar cane farm, both near Townsville. Several solar farms have also been proposed that would clear black-throated finch habitat around Townsville.

To further complicate matters, the black-throated finch’s habitat is also threatened with degradation by cattle grazing. The finch needs year-round access to certain grass seeds, so where grazing has removed the seeding part of the grasses, made the ground too hard, or caused the proliferation of introduced grasses such as buffel, the habitat suitability can decrease until it is no longer able to support black-throated finches.

So while they are losing their high-quality habitat to development, a lot of their habitat is being degraded elsewhere.

Heavy cattle grazing degrades habitat for the southern black-throated finch by removing edible grass seeds.
April Reside

The federal government has placed conditions on approved clearing of black-throated finch habitat, often including “offsetting” of any habitat loss. But securing one part of the black-throated finch’s habitat in exchange for losing another still means there is less habitat. This is particularly problematic when the lost habitat is of very high quality, as is the case for Adani’s Carmichael coalmine lease.

Little by little

Our research suggests there is a real danger of the black-throated finch suffering extinction by a thousand cuts – or perhaps 775 cuts, in this case. Each new development approval may have a relatively modest impact in isolation, but the cumulative effect can be devastating. This may explain why a stronger environmental response has not occurred so far.

So how can we prevent the black-throated finch from going extinct? The finch is endangered because its habitat continues to be lost. So its recovery relies upon halting the ongoing loss of habitat – and ultimately, increasing it. Achieving this would require a political willingness to prioritise endangered species protection.

Australia has already lost hundreds of its unique plants and animals forever. In just the last few years, we have seen more mammals and reptiles disappear to extinction. If we continue on our current path, the southern black-throated finch could be among the next to go.

April Reside, Researcher, Centre for Biodiversity and Conservation Science, The University of Queensland and James Watson, Professor, The University of Queensland

This article is republished from The Conversation under a Creative Commons license. Read the original article.

Labor promises a comprehensive overhaul of federal environmental framework

Michelle Grattan, University of Canberra

Australia will get the biggest overhaul of its federal environment laws in two decades if a Labor government is elected next year.

Labor would establish a new Australian Environment Act and create a federal Environmental Protection Agency in its first term.

The commitments were flagged by Bill Shorten and approved by delegates at the ALP national conference, which is meeting in Adelaide.

The new legislation would replace the present Environment Protection and Biodiversity Conservation Act which was passed under the Howard government’s environment minister Robert Hill in 1999.

The new agency would oversee and enforce the revised act, conduct inquiries and advise the minister on environmental approval decisions.

Environment shadow minister Tony Burke said the current act was now twenty years old and had not been significantly reformed.

“It is time to bring it into the twenty-first century. In 2018, it is bizarre that the national environmental law does not properly factor in climate change”, Burke said.

He said the new EPA would have “the mission to protect Australia’s natural environment”.

“It will be informed by the best available scientific advice and ensure compliance with environmental law.”

It would “have the ability to conduct public inquiries on important environmental matters”.

“The new legal framework will compel the Australian government to actively protect our unique natural environment and demonstrate national leadership”

The decisions are a victory for the Labor Environment Action Network (LEAN), a group within the ALP membership that lobbies on environmental matters. LEAN got about 480 branches to sign up to its push for extensive reforms.

While LEAN did not obtain its whole agenda, it won extensive elements of what it was pressing for.

The changes were promoted by the left of the ALP.

It was reported that there was resistance from Burke to some of the LEAN demands.

Burke said Labor would establish a working group of experts including scientists, environmental lawyers and public policy thinkers to refine the detail of the changes. Stakeholders, including states and territories, Indigenous representatives, affected industries, business groups, unions and civil society would also be involved.“

“The Australian Environment Act will aim to tackle problems identified by industry, which has identified inefficiencies, delays and hurdles. The new law will protect the environment while aiming to give business more certainty”, Burke said.

The Greens said the environmental protections endorsed by Labor would “fail without proper investment and a commitment to no new coal, oil and gas”.

The Places You Love alliance of 54 environment groups said: “The ALP’s commitment to stronger laws that will help end the decline of nature and our extinction epidemic, and an independent national watchdog to enforce those laws, represents a step by a major political party towards rectifying decades of neglect of Australia’s environment”.

Labor’s reform agenda was attacked by the Minerals Council of Australia which said it would “add another layer of green bureaucracy, which will cost jobs, discourage investment and make it easier for activists to disrupt and delay projects”.

Michelle Grattan, Professorial Fellow, University of Canberra

This article is republished from The Conversation under a Creative Commons license. Read the original article.

Passing the brumby bill is a backward step for environmental protection in Australia

Don Driscoll, Deakin University; Euan Ritchie, Deakin University, and Tim Doherty, Deakin University

Late on Wednesday night the so-called “brumby bill” was passed without amendment in the New South Wales Parliament. The controversial Coalition bill, supported by the Christian Democrats and the Shooters, Fishers and Farmers Party, means that feral horses must be kept in Kosciuszko National Park.

It also creates a community advisory panel, with no scientific experts appointed, to advise the minister on how to manage the horse population in the alpine ecosystem.

The NSW government has attracted accusations of a conflict of interest. Former Nationals member Peter Cochran, who now runs a commercial venture offering brumbie-spotting rides through the National Park (and who has donated extensively to Deputy Premier John Barilaro) reportedly commissioned lawyers to draft the bill. Peter Cochran, John Barilaro and Gladys Berejiklian have denied all accusations of conflict of interest and underhanded conduct.

The bill has also been criticised by scientific bodies. In a letter to NSW Premier Gladys Berejiklian this week, the Australian Academy of Science noted that the legislation removes consideration of scientific advice, and called for the bill to be withdrawn or substantially amended.

In a rare move, the International Union for the Conservation of Nature has also written to the NSW government, expressing concern over the potential degradation of this internationally significant national park.

Damage caused by feral horses in the Australian alps.
D Thompson and Stuart Rowland, Friends of Currango/Flickr

Out of step with other states

The NSW Labor Party does not support the bill and has pledged to repeal the legislation if elected next March. The legislation represents a radical change in NSW’s management of feral horses, coming after a 2016 draft strategy that recommenced reducing their population by 90% over 20 years.

NSW now stands in contrast to other Australian states. Last Saturday, Victoria launched its Feral Horse Strategic Action Plan. That plan aims to protect native species and ecosystems in national parks by removing or controlling feral horses and is a welcome step in the right direction. Victorian environment minister Lily D’Ambrosio called on the NSW and federal governments to support a unified approach to feral horse management in Australia’s alpine regions.

Is culling in or out?

The Victorian plan excludes aerial culling but will revisit horse control methods if the proposed trapping methods don’t reduce environmental impacts. Aerial culling is widely practised throughout Australia, including Western Australia, the Northern Territory, Queensland (where culling was used to improve road safety), and the Australian Capital Territory, which borders Kosciuszko National Park.

Barilaro argued against aerial culling when he presented the Brumby bill to parliament, calling it cruel and barbaric. He reiterated that the bill is meant to prevent lethal control in his response to Victoria’s announcement. But surprisingly, the draft legislation makes no mention of control methods, lethal or otherwise.

The deputy premier also referred to the Guy Fawkes National Park horse cull in northern NSW in 2000 to support his argument against aerial culling. But an independent enquiry found that the cull was an appropriate humane response to the situation, where horses were starving to death and causing environmental damage after a fire. The RSPCA and independent reports show that aerial culling is an acceptable and humane way to manage horse numbers.

Further, the brumby bill now locks in the predictable outcome that thousands of horses are likely to starve to death in the next drought or after large fires. It is therefore puzzling that actions likely to increase horse suffering are not of great concern to many within the pro-brumby lobby.

Greater emphasis, instead, has been put on a cultural argument for protecting feral horses: for example, by claiming that feral horses made enormous contributions to Australia’s World War One effort. However, the cultural heritage report prepared for the NSW National Parks Service says “there is no definitive evidence that remount horses were directly taken from the brumby population of what is now Kosciusko National Park”.

The Sydney Olympics opening ceremony was also offered as evidence that brumbies are integral to Australian culture. However, Australian Stock horses, not brumbies, were showcased at the Sydney Olympics – a distinct breed, established by horse enthusiasts in the 1970s.

That said, it is true that horses in the snowy mountains do have local cultural value. But so too does the native fauna and flora threatened by feral horses, many of which only occur in Australia’s high country. This includes species such as the southern corroboree frog, alpine she-oak skink, broad-toothed rat, Raleigh sedge and mauve burr-daisy.

Can we compromise?

Is a compromise possible, in which both cultural and conservation goals can be accommodated? We think so. The feral horse population can be removed from the national parks and sensitive ecosystems. Brumby herds can thrive on extensive private property in the region, an approach already proven in South Australia’s Coffin Bay National Park.

The brumby bill was written and presented to parliament by groups with at best a perceived conflict of interest, and promoted by using inaccurate information about culling and heritage. It has been roundly criticised by leading national and international scientific bodies for not taking adequate account of science and the key role of national parks in conserving biodiversity.

That this bill has now passed the NSW upper house is a further backward step for conservation goals and Australia’s international reputation for environmental protection, and sets a dangerous precedent by undermining prominent national and state environmental policy. It remains to be seen how this legislation aligns with the federal Environment Protection and Biodiversity Conservation Act, given that it literally tramples over several matters of national environmental significance.

Don Driscoll, Professor in Terrestrial Ecology, Deakin University; Euan Ritchie, Associate Professor in Wildlife Ecology and Conservation, Centre for Integrative Ecology, School of Life & Environmental Sciences, Deakin University, and Tim Doherty, Research Fellow, Deakin University

This article was originally published on The Conversation. Read the original article.

Supreme Court ruling on NZ’s largest irrigation dam proposal respects conservation law and protected land

File 20170725 5139 auwmjj — This aerial view shows the catchment of the Makaroro river, in the Ruahine Forest Park. The river was to be dammed for the Ruataniwha irrigation scheme.
Peter Scott, CC BY-ND

Christine Cheyne, Massey University

Earlier this month, New Zealand’s Supreme Court rejected a proposed land swap that would have flooded conservation land for the construction of the country’s largest irrigation dam.

The court was considering whether the Hawke’s Bay Regional Council’s investment arm could build a dam on 22 hectares of the protected Ruahine Forest Park in exchange for 170 hectares of private farm land. The proposed dam is part of the $900 million Ruataniwha water storage and irrigation scheme.

The New Zealand government’s response to the ruling was to consider a law change to make land swaps easier. Such a move flies in the face of good governance.

Natural capital vs development

The Supreme Court ruling has significant implications for the Ruataniwha dam. In addition, it asserts the importance of permanent protection of high-value conservation land.

The ecological value of the Ruahine Forest Park land was never in question. The conservation land includes indigenous forest, a unique braided river and wetlands that would have been destroyed.

The area is home to a dozen plants and animals that are classified as threatened or at risk. The developer’s ecological assessment acknowledged the destruction of ecologically significant land and water bodies. However, it argued that mitigation and offsetting would ensure that any effects of habitat loss were at an acceptable level.

The Mohaka River also flows through the Hawke’s Bay.
Christine Cheyne, CC BY-ND

Challenge to NZ’s 100% Pure brand

New Zealand’s environmental legislation states that adverse effects are to be avoided, remedied or mitigated. However, no priority is given to avoiding adverse effects. Government guidance on offsetting does not require outcomes with no net loss.

In Pathways to prosperity, policy analyst Marie Brown argues that offsetting is not always appropriate when the affected biodiversity is vulnerable and irreplaceable.

Recent public concern about declining water quality has provided significant momentum to address pollution and over-allocation to irrigation. Similarly, awareness of New Zealand’s loss of indigenous biodiversity is building.

These issues were highlighted in this year’s OECD Environmental Performance Review and a report by the Parliamentary Commissioner for the Environment on the parlous state of New Zealand’s native birds.

Both issues damage New Zealand’s 100% Pure branding and pose significant risks to tourism and the export food sector. Indigenous ecosystems are a huge draw card to surging numbers of international tourists.

Battle lines in fight for the environment

Powerful economic arguments have been put forward by business actors, both internationally and in New Zealand. For example, Pure Advantage supports protection of ecosystems and landscapes. Yet, governance mechanisms are limited.

Since 2009, environmental protection and conservation have increasingly become major battle lines as the National government doggedly pursues its business growth agenda. This favours short-term economic growth over environmental protection.

A key principle behind the Supreme Court decision is that protected conservation land cannot be traded off. It follows a High Court case in which environmental organisations argued unsuccessfully that the transfer of land was unlawful.

However, in August 2016, the Court of Appeal ruled against the Director-General of Conservation’s decision to allow the land transfer. It had been supported on the grounds that there would be a net gain to the conservation estate. The court’s ruling said that the intrinsic values of the protected land had been disregarded.

The Supreme Court has reinforced the importance of the permanent protection status recognised by the Court of Appeal.

Anticipatory governance

In response to the court’s decisions, the government argued that land swaps of protected areas should be allowed. It may seek to amend legislation to facilitate such exchanges.

The Supreme Court made reference to section 2 of the Conservation Act 1987. It defines conservation as “the preservation and protection of natural and historic resources for the purpose of maintaining their intrinsic values, providing for their appreciation and recreational enjoyment by the public, and safeguarding the options of future generations”.

Section 6 of the act states that the Department of Conservation should “promote the benefits to present and future generations of the conservation of natural and historic resources”. As such, the legislation and the department contribute to what is known as “anticipatory governance”.

Anticipatory governance is fundamental to good governance, as Jonathan Boston argues in his recent publication Safeguarding the future: governing in an uncertain world.

It requires protecting long-term public interests. Conservation of our unique ecosystems and landscapes protects their intrinsic values and the services they provide. These include tourism benefits and basic needs such as water, soil and the materials that sustain human life.

The department has correctly recognised that conservation promotes prosperity. However, long-term prosperity is quite different from the short-term exploitation associated with the government’s business growth agenda.

This promotes exploitation in the form of mining on conservation land and increased infrastructure for tourism and other industries, such as the proposed Ruataniwha dam.

Amending the Conservation Act to allow land swaps involves a significant discounting of the future in favour of present day citizens. This is disingenuous and an affront to constitutional democracy. It would weaken one of New Zealand’s few anticipatory governance mechanisms at a time when they are needed more than ever.

Christine Cheyne, Associate Professor, Massey University

This article was originally published on The Conversation. Read the original article.

We quibble over ‘lawfare’, but the law is not protecting species properly anyway

Ted Lefroy, University of Tasmania and Benjamin Richardson, University of Tasmania

The federal government is set to go ahead with its crackdown on environmental “lawfare”, which would restrict green groups’ legal standing to challenge mining approvals and other developments.

The Senate Standing Committee on Environment and Communications yesterday endorsed the proposed changes to the Environment Protection and Biodiversity Conservation Act, citing the “costs to proponents and consequences for economic activity when major development projects are delayed by judicial review”.

The move was first announced in August, in the wake of a successful Federal Court challenge to the approval of the planned Adani mine in Queensland (since reapproved).

At the time, Attorney General George Brandis described such litigation as “vigilante” action by “radical green activists”, while agriculture minister Barnaby Joyce added in an ABC radio interview that the only people who should have standing to challenge mine proposals are those nearby who might be affected by dust, noise or water contamination.

But by seeking to limit who has the right to appeal its decisions, the government misunderstands the purpose of environmental legislation.

The amendments not only go against the progressive development of environmental law worldwide, which has helped to make approvals more open to public scrutiny, but they are also a grave injustice to nature itself.

Appealing prospects

Under the proposed amendment, a person or group will not be able to appeal a decision unless they can show that they will be “aggrieved” by the development, which typically implies suffering some direct and material adverse impact.

But, as Joyce also acknowledged, this is not a simple matter of physical proximity. Groundwater pollution, for instance, can affect people living many kilometres downstream. Determining who is or isn’t aggrieved could represent an entire new source of green tape.

Moreover, silencing legitimate public concerns in this way does not guarantee that a government’s preferred projects will be protected from legal challenge – a lesson the Tasmanian government learned when green groups collaborated with financial investors to defeat the Gunns pulp mill, in spite of the ignominious Pulp Mill Assessment Act.

But there is something more fundamental at stake here.

Against the tide

The question of whom or what should be protected by environmental law was raised by the US scholar Christopher Stone in his 1972 polemic Should Trees Have Standing? He argued that only by granting legal rights to nature would we change the culture that sees nature as an expedient resource at our disposal.

This would help to resolve a false dichotomy raised by the US environmentalist Aldo Leopold in a 1949 essay that helped to kickstart the environmental movement, in which he wrote that “we abuse nature because we treat it as a commodity which belongs to us rather than a community to which we belong”.

Clearly, nature is both community and commodity.

In 1999 the Australian government came close to recognising this when it passed the Environment Protection and Biodiversity Conservation Act. Yet this protection is constrained in various ways, such as by being limited to designated threatened species (about 1% of Australia’s named plants and animals), areas of national environmental significance (such as world heritage properties), or certain areas under Commonwealth management.

So while anyone who can show they are likely to be affected by a decision has standing, usually only plants and animals that are threatened with extinction can qualify for legal protection. To use a medical analogy, they can only bulk bill if they’re terminally ill.

Prevention vs cure

Should we really only consider protecting nature when it’s on the way out? The fact that only 9% of species listed as threatened have ever recovered sufficiently to come off the list (and many have promptly gone back onto it) suggests that the Act is not working, even for the species it covers. It is not working because it is often not triggered until it’s too late, and the list of threatened species just keeps growing.

People on all sides of politics are currently arguing about who is being excluded from the EPBC Act. Meanwhile the law is failing to protect the plants and animals that are supposed to be included.

An alternative vision that evokes Christopher Stone’s ideal is beginning to find legal expression in some countries, such as New Zealand, where a long dispute between the government and Maori over management of a major river concluded in 2012 with an historic agreement that the Whanganui River is a legal person, with its own rights. Two guardians, one appointed by the local Maori iwi and the other by the government, will protect the river’s interests forever.

The challenge for science and the law is to develop criteria for protection based not on how rare something is, but on how significant it is to both nature and people – as both natural community and natural commodity. We should then empower environmental groups or other entities to act as guardians of that protected interest – and to defend it in any court.

Ted Lefroy, Director, Centre for Environment, University of Tasmania and Benjamin Richardson, Professor of Environmental Law, University of Tasmania

This article was originally published on The Conversation. Read the original article.

Is exporting waste ‘bad’?

What does the ban involve?

No room for error

Increasing momentum

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Finally a fast follower

Turning in the right direction

Towards climate leadership

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Semantics matter

Mind the gap

Temporary forever?

Negotiation to the lowest bar

Proceed with caution

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‘Fundamental reform’ needed: Samuel

Streamlined approvals

More haste, less speed

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Inadequate protections

New environmental legislation

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A famous finch

Clear danger

Critical habitat

Little by little

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Out of step with other states

Is culling in or out?

Can we compromise?

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Natural capital vs development

Challenge to NZ’s 100% Pure brand

Battle lines in fight for the environment

Anticipatory governance

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Appealing prospects

Against the tide

Prevention vs cure

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