Environmental law is struggling to meet the immense challenges that confront our generation. As with other areas of social life and public affairs, law periodically must remake itself in order to meet historic challenges and to be equal to tasks that society invests in it. For environmental law, this is no different.
For instance, we inherited from the English common law important rules and doctrines intended to protect us from environmental harm and damage, such as the law of nuisance, and there were early colonial town planning statutes enacted to regulate polluting activities or pest animals or to protect native wildlife from hunting. Over time, other environmental measures passed the Parliament, such as laws for national parks, soil conservation and protection of waters against pollution, were added to the statute book. Eventually, these measures proved inadequate to the task of stopping environmental harm in a rapidly advancing industrial society. Extinctions of native species proceeded apace. Natural areas were threatened and destroyed in the face of industrial and urban development. Waterways and air faced more and more pollution.
From the 1970s to the 2000s, through public agitation, there was a steady response to these challenges in the form of environmental laws, new institutions and landmark court cases. Victorian passed the Environment Protection Act and the Land Conservation Act in 1970. The High Court brought down the Tasmanian Dams case in 1983. Threatened species laws across Australia were passed in the 1980s and 1990s. Broad-scale land clearing was progressively phased out in most States from 1989 (Victoria) onwards. National environmental law in the form of the Environment Protection and Biodiversity Conservation Act was passed in 1999 and, with a strong environmental focus, the Commonwealth Water Act and the Basin Plan become law in the late 2000s. Climate laws were enacted federally in 2011 and became a headline casualty of the Abbott Government’s assault in the environment with their 2014 repeal. A growing momentum of environmental governance emerged from international law and agreements, such as from the Rio Earth Summit of 1992.
These laws were important achievements. But the challenges keep building up and evolving – and in any case, so many of these ‘second generation’ of environmental laws were constrained by political deal-making or too hamstrung in their operation to be effective.
We need new environmental laws for instance because:
- Our national threatened species laws are not proving adequate to the task of avoiding extinctions.
- Victoria’s threatened species’ laws are notoriously ineffectual.
- The task of veering away from catastrophic climate change has been seriously undermined by Federal Government antagonism to strong clean energy laws and rearguard defence of big fossil fuel interests.
- We have no meaningful national clean air laws.
- The environmental laws that we have are also impeded by a range of hurdles, such as the costs of seeking to have environmental laws and limits on community participation in decision-making.
- Iconic places such as the Great Barrier Reef are ‘in danger’
- Mining laws allow mining interests to run roughshod over everything else including nature.
- We need environmental justice to be a basic concept in environmental law and policy and recognise our basic right to a safe and clean environment.
In all of these cases, we have demonstrated what is needed to reform our environmental laws, strengthen them, make them fit for purposes – that is, actually achieving environmental protection and building a healthy and safe environment.
This is a project still at the heart of our work. A number of our key, current projects are aimed precisely at this exciting and ambitious task of building the next general of environmental laws, capable of meeting and addressing current environmental crises:
- We are centrally involved in the work of the Australian Panel of Experts in Environmental Law, along with our Places you Love colleagues, to explore a comprehensive package of future environmental laws.
- We are engaged with the Victorian Government’s review of our native vegetation clearing laws and their review of the State’s Biodiversity Strategy, building from earlier work in these areas.
- We are at the table in the State Government’s review of our environment protection laws.
- We are working with our colleagues at the Yarra Riverkeeper to design new legislation to govern the Yarra River.
- We have articulated what national clean air laws should look like.
- We continue to support Aboriginal Nations’ struggles to protect and restore Country through just access to natural resources.
- We continue to explore innovative ideas in public participation in environmental management through best practice environmental laws.