Why aren’t Australia’s environment laws preventing widespread land clearing?

Samantha Hepburn, Deakin University

Australia has national environment laws – the Environment Protection Biodiversity Conservation Act (EPBC Act). Yet given the staggering rates of land clearing taking place, resulting in the extinction and endangerment of plants and animals in Australia, these laws are clearly not working.

About 395,000 hectares of regrowth and old growth vegetation were cleared during 2015-16 in Queensland. Australia is set to clear up to 3 million hectares of native forest by 2030, and more than 1,800 plant and animal species are currently listed as threatened nationally.

Read more:
Turnbull wants to change Australia’s environment act – here’s what we stand to lose

When the EPBC Act was first implemented in 1999, the idea was for it to provide reinforced federal environmental protection to areas of national environmental significance. But in reality, many projects that come within the ambit of the Act are not rigorously evaluated for their environmental impact.

Why isn’t the EPBC Act working?

Land clearing was listed in the 2001 and 2006 State of the Environment Reports as one of the greatest threats to biodiversity.

Deforestation and excessive land clearing fundamentally impacts existing biodiversity, damages fragile ecosystems, destroys wildlife habitat, and increases greenhouse gas emissions. In Queensland, where much of the land clearing is taking place, the state law (Vegetation Management Act) is not strong enough to diminish incentives for land clearing. Yet the national environmental laws have not provided greater protection.

There are several reasons for this. While land clearing is indirectly regulated by the EPBC Act due to the significant impact it can have on the environment, land clearing is not directly addressed by the EPBC Act.

As it stands, land clearing will only attract EPBC Act application where it can be established that it impacts a directly protected entity such as a World Heritage area, Ramsar wetland, threatened species, ecological community, or migratory species. If this connection cannot be established, no environmental assessment under the EPBC Act will occur.

Even where projects do attract the application of the EPBC Act, its capacity to advance best practice environmental impact assessment is highly questionable. One of the biggest problems is that the process of assessment is insufficiently robust.

Read more:
Commonwealth should keep final say on environment protection

This problem is evident in other environmental issues too. Where a bilateral state and federal assessment is approved, as was the case with the Adani coalmine, the federal department often relies on state counterparts to undertake a thorough environmental assessment. Many of the proposals evaluated by state departments are assessed with reference to the least onerous environmental impact assessment available.

This documentation is generally prepared by the project proponent. Unsurprisingly, as a consequence, many of the projects that are evaluated under the EPBC Act are approved, subject to the imposition of environmental conditions. This means the environmental conditions need to be carefully monitored if environmental protection is to be optimised.

This creates a new set of problems. Where a breach is alleged, it must be proved and appropriate sanctions enforced. In reality, this rarely happens, and the sanctions that are imposed can be woefully inadequate. For example, Adani was fined A$12,000 for breaching an environmental condition relating to the release of coalwater in Abbott Point coal terminal, which flowed into the fragile Caley Valley Wetlands.

The substantive problem with the EPBC Act is that its implementation is subject to departmental discretion and therefore the vagaries of government administration. This is particularly problematic given the political nature of many of these decision-making processes.

Lack of rigorous scrutiny

In circumstances where, for example, there is a need to challenge the approval of a resource title in light of its environmental consequences, the EPBC Act relies heavily on environmental groups or other third parties to scrutinise the federal decision-making process.

For example, the Australian Conservation Foundation took strong action in challenging the issuance of the mining licence for Adani’s proposed Carmichael coal mine. It argued the endangered species and climate change impacts were insufficiently taken into account by the then Environment Minister Greg Hunt in exercising discretion under the EPBC Act.

Read more:
Latest twist in the Adani saga reveals shortcomings in environmental approvals

The case was dismissed because the Federal Court found that this decision was authorised by the discretions included within the EPBC Act. The minister was therefore within his power to decide not to take account of the climate change impacts of such a vast new coalmine. This is concerning given the profound impact that climate change can have upon fragile ecologies in areas of national environmental significance.

These findings indicate a lack of preparedness by the federal minister to accept a causal connection between climate change and domestic coal production, and to focus on narrow jurisdictional boundaries and strict domestic obligations. It also strongly highlights the deficiencies of our national environment act because the existing triggers do not address some of the most important environmental concerns of the modern world.

New environment laws urgently needed

Climate change is almost universally accepted as one the most serious environmental threats. Yet the EPBC Act does not include a climate change trigger (or a land clearing trigger, as discussed above).

This means these key threats to Australia’s environment will not be protected by EPBC Act. They may attract the EPBC Act indirectly, but only if it can be established that they raise a different trigger that is listed under the Act. This calls into question the capacity of our national environment laws to truly protect areas of national environmental significance.

The ConversationIn order to reverse unacceptable rates of land clearing, preserve ecosystems and habitats and diminish greenhouse gas emissions, a new framework for our national environment act is urgently needed.

Samantha Hepburn, Director of the Centre for Energy and Natural Resources Law, Deakin Law School, Deakin University

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


Australia might water down illegal logging laws – here’s why it’s a bad idea

Beatriz Garcia, Western Sydney University

Illegal logging is an immensely profitable global activity, linked to corruption, human rights abuses, criminal networks, and environmental destruction. A 2017 study by the Global Financial Integrity ranked illegal logging as the third largest global crime in value, after counterfeiting and drug trafficking.

Australia imports roughly A$8.1 billion worth of timber products a year, and according to estimates from the Department of Agriculture and Water Resources, up to A$800 million comes from sources with some risk of being illegally logged.

Read more: Organised crime, illegal timber and Australia’s role in deforestation

Yet the federal government is currently considering significantly weakening regulation that prevent the import of illegal timber. Companies will be less likely to know where their wood comes from, and consumers will have less assurance that they are buying products from a legitimate source.

The proposed reform will require amendments to the 2012 Illegal Logging Prohibition Regulation. Once the changes are introduced, the parliament has 15 sitting days to disallow the changes.

Major change

The Department of Agriculture and Water Resources has proposed significant changes to our timber import rules, with the aim of reducing the costs for businesses to comply with regulations. The proposal is to introduce a “deemed to comply” arrangement for certain private certification schemes.

Under current laws, businesses need to assess and manage the risk that imported timber or wood products may have been illegally logged. This is known as “due diligence”, and applies to timber imports worth A$1,000 or more.

Read more: Lessons from the US: stopping illegal logging benefits both sides of politics

The “deemed to comply” provisions assume that an importer has complied with the regulations, in some cases without actual checks and proofs of legality. This will exempt companies from undertaking their own due diligence.

But the Australian government recognizes that certification schemes still face challenges in dealing with deliberate fraudulent activity. Given the prevalence of bribery in illegal logging, it is not uncommon for illegally logged timber to have the “correct” government documents and achieve certification.

This problem is recognised in the European Union, which advises that regulations take into account the risk of corruption, saying that “even official documents issued by authorities cannot be considered reliable”.

Neither the EU or US regulations recognise third-party certification systems as a means of assuring timber legality (only as part of a system of due diligence or due care).

When it comes to illegal logging, due diligence works

Illegal logging degrades forests, harms wildlife, and emits greenhouse gases. The land sector, including logging, deforestation and other activities, accounts for 24% of total global emissions.

As well as causing environmental harm, illegal logging involves human rights abuses like violence against local communities, forced labour, and pollution of vital water supplies.

Read more: CSI trees: how forensic science is helping combat illegal logging

This is why developed countries around the world have created timber import standards, which play a key role in curbing illegal logging.

Experience in Europe shows that enforcing illegal logging laws and due diligence requirements has a significant positive impact. The more European authorities enforce these measures, the more aware and compliant the industry becomes. Companies change their supply chains as a result of due diligence processes, which in turn has an immediate impact in the countries that supply the timber.

In contrast, countries with inactive or inefficient enforcement see uncertainty within the industry and lower levels of awareness.

Watering down Australia’s due diligence requirements fly in the face of this evidence. While the proposed change is designed to make it cheaper and easier for companies to comply with the law, there’s a real chance it will increase the trade of illegal timber. Businesses will have fewer incentives to make sound decisions and consumers will not be able to tell if the timber they consume is indeed legally sourced.

The ConversationAny changes to our laws should strengthen them, not water down their requirements and limit their value and effectiveness. Our current legislation is the best defence for consumers and businesses. It should be enforced to ensure that the wood imported and sold in Australia does not cause harm both to people and nature.

Beatriz Garcia, Lecturer, Western Sydney University

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

Around the world, environmental laws are under attack in all sorts of ways

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In Montana and Idaho, endangered gray wolves are no longer safe outside national parks.
Ronnie Howard/Shutterstock.com

Bill Laurance, James Cook University

As President Donald Trump mulls over whether to pull out of the Paris climate agreement, it is hard to imagine that he’s listening to the experts. US climate researchers are being so stifled, ignored or blackballed that France has now offered sanctuary to these misunderstood souls.

One might prefer to think of Trump as an outlier in an otherwise environmentally sane world. But alarmingly, there’s just too much evidence to the contrary.

A recent analysis, led by Guillaume Chapron of Sweden’s Agricultural University, reveals a rising tide of assaults on environmental safeguards worldwide. If nothing else, it illustrates the sheer range and creativity of tactics used by those who seek to profit at the expense of nature.

The assaults on environmental protections are so diverse that Chapron and his colleagues had to devise a new “taxonomy” to categorise them all. They have even set up a public database to track these efforts, giving us a laundry list of environmental rollbacks from around the world.

Nick Kim / http://www.lab-initio.com

One might perhaps hope that species staring extinction in the face would be afforded special protection. Not in the western US states of Idaho and Montana, where endangered gray wolves have been taken off the endangered species list, meaning they can be shot if they stray outside designated wilderness or management areas.

In Western Australia, an endangered species can be legally driven to extinction if the state’s environment minister orders it and parliament approves.

Think diverse ecosystems are important? In Canada, not so much. There, native fish species with no economic, recreational or indigenous value don’t get any legal protection from harm.

And in France – a crucial flyway for Eurasian and African birds – killing migratory birds is technically illegal. But migrating birds could be shot out of the sky anyway because the environment minister ordered a delay in the law’s enforcement.

In South Africa, the environment minister formerly had authority to limit environmental damage and oversee ecological restoration at the nation’s many mining sites. But that power has now been handed over to the mining minister, raising fears of conflict between industry and environmental interests.

In Brazil, the famous Forest Code that has helped to reduce deforestation rates in the Amazon has been seriously watered down. Safeguards for forests along waterways and on hillsides have been weakened, and landowners who illegally fell forests no longer need to replant them.

In the Indian Ocean island nation of Mauritius, endangered species are protected by law, unless it is deemed to be in the “national interest” not to do so. Although an endangered species, the endemic Mauritius flying fox was annoying commercial fruit farmers, so the government has allowed more than 40,000 flying foxes to be culled.

And in Indonesia, it’s illegal to carry out destructive open-pit mining in protected forest areas. But aggressive mining firms are forcing the government to let them break the law anyway, or else face spending public money on legal battles.

Shoot the messengers

Campaigners should also beware. Under new legislation proposed in the UK, conservation groups that lose lawsuits will be hit with heavy financial penalties.

In many parts of the world, those who criticise environmentally destructive corporations are getting hit with so-called “strategic lawsuits against public participation”, or SLAPP suits.

In Peru, for instance, a corporation that was mowing down native rainforest to grow “sustainable” cacao for chocolate routinely used lawsuits and legal threats to intimidate critics.

That’s before we’ve even discussed climate change, which you might not be allowed to do in the US anyway. Proposed legislation would prohibit the government from considering climate change as a threat to any species. No wonder researchers want to move overseas.

Nick Kim / http://www.lab-initio.com

As the above examples show, essential environmental safeguards are being conveniently downsized, diminished, ignored or swept under the carpet all over the world.

Viewed in isolation, each of these actions might be rationalised or defended – a small compromise made in the name of progress, jobs or the economy. But in a natural world threatened with “death by a thousand cuts”, no single wound can be judged in isolation.

Without our hard-won environmental protections, we would all already be breathing polluted air, drinking befouled water, and living in a world with much less wildlife.

The ConversationThis article is an edited version of a blog post that originally appeared here.

Bill Laurance, Distinguished Research Professor and Australian Laureate, James Cook University

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


We can’t save all wildlife, so conservation laws need to change

Phillipa McCormack, University of Tasmania and Jan McDonald, University of Tasmania

Australia recently gained an unenviable title: perhaps the first country to lose a mammal species to climate change. The Bramble Cay Melomys, a native rodent found on one tiny sand island in the remote northern regions of the Great Barrier Reef, reportedly became extinct after rising seas destroyed its habitat.

The melomys’ likely extinction is a symptom of the massive changes taking place across the natural world. Faced with these changes, we cannot possibly save every species without increasing funding for conservation.

We should be trying to conserve everything we can, or at least minimising the number of plants, animals and ecosystems that are lost. The problem is that Australia’s conservation laws presume that we can preserve everything in its natural state. But in a changing world, we’ll have to be more flexible than that.

The new nature

Our conservation laws were drafted on the assumption that, if human intervention could be avoided or managed, plants and animals would survive in their natural, pristine environments.

We now know that that is not the case. Nature is dynamic. Humans have had a pervasive influence on the environment and recent research suggests that pristine environments no longer exist.

Climate change will rapidly accelerate environmental change. Shifting temperature and rainfall will shift the specific conditions that species depend on to survive. Everything will be on the move.

On top of these gradual climate shifts, more frequent and intense bushfires, storms and heatwaves will destroy some habitats and increase the threatened status of many species. In some cases, these extreme events may result in localised extinctions.

Climate change is creating new problems for biodiversity (such as new invasive species) and is making existing problems worse (such as by changing fire patterns).

What does conservation mean if we can’t save everything?

Far from making conservation law irrelevant, these challenges mean that conservation policy and laws are more important than ever.

Expanding land and marine reserves, restoring and connecting habitat with other areas, and reducing other threats such land clearing or feral animals are all important climate adaptation strategies.

But many Australian plants and animals will not be able to move fast enough to escape extreme events or to keep pace with their specific climate niches on their own. To conserve these species, we may need to engage in high‑intervention conservation strategies, such as assisted colonisation.

This involves moving an individual, population or species to a place where it has never been found before. This tactic is being investigated for the endangered Western Swamp Tortoise in Western Australia, as its wetland habitat begins to dry out.

Conservation laws in Australia were not designed to accommodate these kinds of dynamic and proactive approaches to conservation management.

Legal road blocks

Current conservation laws promote keeping or returning the environment to what it used to be, whether that is pristine or not.

In a recent paper, we looked at three ways laws may impede conservation in a changing world.

First, current laws emphasise maintaining the current status and location of ecosystems and their constituent parts, or returning them to an “undisturbed” state.

Second, they place high value on biodiversity that is rare, native and wild.

Finally, they emphasise reserves (especially on public land) as the sites for most conservation effort.

For example, national park laws typically require agencies to conserve national parks in their natural state. This is usually defined by the plants and animals that are already there or that have been found there in the past.

But some species might need to be moved into national parks, even if they have never been found there before, or out of national parks to somewhere more climatically suitable. Current laws do not let us do this.

Rather than an outdated idea of what is “natural”, we need new objectives that focus on diversity and ecosystem function and health. If introducing a plant or animal into a national park will increase its chance of surviving under climate change and will not undermine the health of the park’s ecosystems, the introduction should not be excluded just because the species is not “native” to that specific park. This approach would help species adapt through movement across boundaries.

Letting species go

Another example of a potential legal roadblock is the emphasis on individual threatened species in both legal protection and funding. For instance, the Coalition government has pledged AU$5 million for specific actions to protect some of the most endangered of Australia’s listed threatened species.

But this is an example of assuming that we can save everything. The contracting ranges and already precarious status of many listed species make it unlikely that we will be able to conserve them all, and impossible to do so in their historic locations.

Choices based on what species we fund are rarely transparent and the public is rarely consulted about what we value the most. We need to have a conversation about how we value species and ecosystems in a changing world. If more people realised that we cannot save everything, perhaps more people would demand that appropriate funding is allocated to saving as much as possible.

While funding remains limited, we need objectives that reflect the certainty of some loss of species in the wild and that clearly define the criteria we are using for targeting some species for protection while letting others go.

Our conservation laws direct how we will act to save species and ecosystems under climate change, and whether we will succeed. But climate change makes our current objectives unachievable.

We must not give up on conserving as much as we can as the climate changes. Laws can be used to help us achieve this goal. But we urgently need a national conversation about what reform is needed to ensure the best possible conservation results for Australia’s precious wildlife, plants and ecosystems.

The Conversation

Phillipa McCormack, PhD candidate, Faculty of Law, University of Tasmania and Jan McDonald, Professor of Environmental Law, University of Tasmania

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