Reason 1 why the Cth should not devolve environmental approval powers to the States: Environmental protection will be undermined

Welcome to our blog series ’10 Reasons why responsibility for national environmental laws ought not be transferred to the States’

The Commonwealth wants you to believe that they can maintain levels of environmental protection by giving away the direct administration of our national environmental laws while retaining scrutiny and oversight of their administration by the States.  This won’t work.  Once the Commonwealth loses direct responsibility, it loses interest and refuses to step in even where there are serious problems. We believe this for good reason.

Look at Regional Forests Agreements for example.  The RFA system is built on the idea that the Commonwealth can secure environmental protection by accrediting state based management regimes.  In theory, states are to be kept to their side of the bargain as a result of Commonwealth scrutiny and oversight.  This hasn’t happened, and the Commonwealth has refused to become involved or demand compliance even in cases where States have blatantly breached the RFAs.

In this instance we’re being told that “it’s all OK” – because the Commonwealth government will require the states to commit to a document containing their standards for environmental protection before they seek to have their State processes accredited. EDO Victoria lawyers and our colleagues across the EDO network have done a detailed analysis of these proposed standards which were released recently by Commonwealth Environment Minister, Tony Burke.

It’s not just the standards document itself that is the issue – it largely paraphrases the terms of the Environment Protection and Biodiversity Conservation Act 1999 (EPBC Act) and requires states to have the same principles in place in any laws, policies or programs they put forward for accreditation.  Legally the standards could not provide for anything less.

The real issue here, and the one that goes to the nub of whether environmental protection will decline, is whether we can believe that the Commonwealth will ensure that the States deliver on these standards.

Environmental approvals decisions are complex and involve a large degree of discretion.  This is a critical feature that seems to have been missed in optimistic claims that paper based standards can secure a high level of environmental protection.  Environmental regulation is replete with examples of rules that look good on paper but are completely undermined in their implementation (or lack of it).  Look at Victoria’s Flora and Fauna Guarantee Act 1988 for example.

The exercise of discretion by the Commonwealth under the EPBC Act has been far from perfect over the Act’s 12 year history.  To be fair to Burke and his predecessor as Environment Minister, Peter Garrett, in my view the administration has improved significantly in recent years, which rather goes to demonstrate the point that its not just what’s on paper but how it is administered that needs to be considered here.

I’d rather take my chances with Commonwealth government administration of national environmental laws rather than have the states in control.  I can’t put in any better than the Prime Minister did when as an opposition MP in 1999 she spoke out forcefully against the idea of giving states responsibility of administering national environmental laws:

everybody participating in this debate knows this is about rolling back Commonwealth responsibility and rolling back environmental standards

Skip to content