It’s on – Federal Government starts handing over its powers to the States

The Federal Coalition appears to be moving full steam ahead with its promise to transfer federal approval powers to the States. The Federal and Queensland Environment Ministers announced a couple of weeks ago that QLD and the Commonwealth had entered into a memorandum of understanding to establish a ‘one-stop-shop’ for environmental approvals. While the governments are refusing to release the MOU, it no doubt includes an intention to enter into a ‘bilateral approval agreement’ under Federal environmental laws to allow QLD to both assess and approve QLD projects on behalf of the Commonwealth. The MOU itself does not transfer any powers – a bilateral agreement is needed first which must be made following the process in the EPBC Act, including public consultation – but it is clearly the intention of the parties to do so posthaste.

The EDOs have been doing a lot of thinking about approval and assessment bilaterals over the last year or so since the previous Federal government announced it would hand over its environmental approval powers. We have have done research into how the current agreements operate, made numerous submissions to the Productivity Commission, given evidence to Parliamentary Inquiries, and worked with the Places You Love Alliance to remind people of the value of retaining the Commonwealth in this space.

We are firmly of the view that handing over federal approval powers to the States via bilateral approval agreements is not only a bad outcome for the environment, it will not provide the efficiency gains that industry claims it will.

We already have assessment bilateral agreements in place in every State which allow the State to do environmental assessments on behalf of the Commonwealth (the key being that Commonwealth retains the final approval power). These are designed to reduce duplication in assessment processes and are routinely used in each State.

Industry groups are saying that assessment bilaterals are not good enough, that projects are still being delayed and that approval agreements that hand over the Commonwealth’s approval powers to the States are necessary to make EIA faster and cheaper. However, claims by industry that the Commonwealth approval stage is causing huge delays just don’t add up. Here’s some reasons why:

  • Under an assessment bilateral, once the State has finished its assessment, the Commonwealth must make its decision within 30 days. Hardly a lengthy delay. In some cases the Commonwealth does take longer but it appears this is often because the assessment by the State wasn’t adequate and is sent back (unfortunately there is no publicly available data on how often this happens).
  • When questioned in a Senate inquiry last year, the lead industry group making these claims, the Business Council of Australia, couldn’t come up with any evidence of duplication of the approval stage. The Senate Committee ultimately found there was no evidence to justify claims that the Commonwealth was causing delays and recommended the Commonwealth retain its powers.
  • In many cases the State approval takes much longer than the Federal approval, especially for large projects.
  • In the vast majority of cases, projects don’t even require Federal assessment. 72% of projects referred to the Commonwealth since 2000 have not needed assessment, and half of all projects that did need assessment only needed a short preliminary assessment.
  • Industry groups claim that having two governments making approval conditions leads to inconsistent and unworkable conditions, but this is easily solved by including a clause in the assessment bilateral requiring decision-makers to consult each other on their conditions and not make inconsistent ones.

So this begs the question, what is the real reason industry groups want the Commonwealth Government out of environmental approvals?

Although the EDOs have long held that the assessment bilaterals in their current form do not maintain adequate environmental standards, they could be amended to do so. And they could be improved to make assessments more efficient and better meet the needs of all parties. There is then no need for approval agreements and no need for the Commonwealth to abdicate its vital role in protecting the environment in the national interest.

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