Dissecting the interim EPBC Act review

On Monday 20 July, Professor Graeme Samuel released the Interim Report of the Independent Review of the Environment Protection and Biodiversity Act (EPBC Act) – a 10-year review of our national environment laws.

In the midst of a climate and extinction crisis, it’s clear our current laws are failing. For many years, Environmental Justice Australia has been advocating for an overhaul of our national environment laws to better protect Australia’s unique environment and biodiversity.

This review presents a once-in-a-decade opportunity to fix our broken environment laws and help bring our air, water, wildlife, and the places we love back from the brink.

While our team undertakes detailed analysis of the full report, here are our initial thoughts.

As expected, the interim review of our national environment laws – the EPBC Act – shows Australia’s environment is in an unsustainable state of decline and the laws set up to protect unique species and habitats are dismally failing.

The interim review recommends sweeping changes, including the establishment of a set of legally enforceable national environmental standards and a national independent regulator to monitor and enforce compliance with the law. Though many of the recommendations are welcome, some do not go far enough or if not implemented properly, could lead to worse outcomes for our environment.

The Morrison Government is already cherry-picking recommendations to suit its agenda to fast-track big industrial projects. It is critical that any changes to the EPBC Act prioritise better protecting the environment, not facilitating big industry. Weakening the EPBC Act to speed up project approvals will only fast-track environmental destruction.

We will continue to work hard to make sure this review leads to a better future for the places and wildlife we love. In the meantime, read our review of some of the key recommendations and gaps.

Streamlining environmental approvals

No one would argue that environmental laws shouldn’t be effective and efficient but they also must protect the environment as a priority. The EPBC Act was not created to facilitate big industrial projects – it was created to protect matters of national environmental significance – the air and water we depend and the places and wildlife found nowhere else in the world.

Right now, the EPBC Act is already too weak and is failing to protect Australia’s unique environment. Any changes to the EPBC Act must be to better protect the environment, not facilitate big industry. The priority must be improving the laws for better environmental outcomes, not to fast-track big industrial projects. Weakening the EPBC Act to speed up environmental approvals will only fast-track environmental destruction.

Role of the commonwealth government

The big concern is that slogan like “streamlining”, “cutting green tape” and now “one touch” approvals are really a cover for reducing already weak standards of environmental protection or further retreat by our national government from its role in protecting our places and wildlife.

A better integrated and more effective national system of environmental protection is something that we and others in the environment movement have been calling for years. The key missing ingredient is Commonwealth leadership. Rather than retreating from their responsibilities under the guise of fast-tracking major projects the Commonwealth government needs to step up to its responsibilities. They can’t drive the bus from the back seat.

Although on paper having the Commonwealth government oversee state-based environmental protection processes sounds attractive, in reality the outcomes from this approach have been dismal. We’ve seen how the situation with forest-dependant wildlife has become worse not better under the system of Regional Forests Agreements for instance, something that was very clearly exposed through the recent Federal Court case Friends of Leadbeater’s Possum v VicForests.

An independent national regulator

The Samuel review recommends a well-resourced independent regulator to oversee the implementation of the EPBC Act, something we have long been calling for. This would make a big difference to environmental protection outcomes, and would also ensure that decisions are made efficiently and with integrity. But the federal government has decided not to pursue this as it doesn’t fit their agenda to use the review to speed up approvals for projects that could significantly impact the environment.

There’s too much discretion for the Minister and the department when it comes to administering environment protection laws. This means that decisions are often wrong, subject to political influence or even susceptible to the risk of corruption. A major step forward would be the creation of an independent expertise-based regulator with responsibility for administering our national environment protection laws.

Improvements to threatened species protections

Despite the Samuel review offering scathing criticism of our current national environment laws, there is little in the report about improving listing processes, and recovery planning. This is incredibly disappointing, particularly after the Black Summer bushfires.

What we really need faster decisions on, is key matters like listing threatened species and developing recovery plans. These key conservation actions can take years if they ever happen at all, with the result that we have in effect an environmental protection law that is overseeing the continued loss and decline of threatened species. Last summer’s bushfires should really be a wakeup call that governments at all levels need to act with much more urgency to give our threatened species a fighting chance.

The Federal Court’s decision in Friends of Leadbeaters Possum v VicForests is a clear demonstration that Regional Forests Agreements (RFAs) are failing our threatened species. It is disappointing that the Samuel review has not recommended abolishing the exemption for logging from the EPBC Act under RFAs. There is no justification for the continuing exemption when it’s clear that the system is failing and no longer fit for purpose following the catastrophic Black Summer bushfires.

National air quality standards

It is incredibly disappointing that the Samuel review does not recommend including national standards for air quality. Right now, state governments are permitting big polluters like coal-fired power stations to pollute far more than most other countries allow – putting the health of the community at risk. National air quality standards and a rigorous and an independent standard setting process would have huge health benefits for communities affected by air pollution.

Climate change

Climate change is barely mentioned in the current EPBC Act, despite it being the biggest environmental threat we face. Though the interim report acknowledges that climate change is a significant and increasing threat, it recommends against the inclusion of a climate trigger and assumes that Australia’s emissions will be regulated by other federal legislation – which they are not.

Third party rights and standing to challenge decisions and enforce the Act

Third party appeal and enforcement rights play a critically important role in ensuring that the Act is properly implemented and the government is held accountable for its administration of the Act. In light of the failures of the Act highlighted by the Samuel review, it’s clear we need much stronger, not weaker accountability, appeal and enforcement rights.

The Samuel review states there is no evidence of the misuse of these laws by conservation groups. The limited number of cases pursued by conservation groups under the EPBC Act are really a demonstration that government is failing to do its job in implementing our environment laws and making decisions in accordance with those laws. These are the problems that need to be addressed, not removing the rights of the Australian community to hold the government to account.

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