Pulp Explainer: The EPBC Act
The USyd Environment Collective explains why Australia’s environmental law needs a revamp.
This afternoon at 5pm, submissions will close for the review of the Environmental Protection and Biodiversity Conservation Act 1999. This review is a one-in-a-decade opportunity to make Australia’s environmental protection legislation more effective, which would strengthen protections for vital ecosystems and local communities. You can participate in the submissions process - so here’s a rundown of the Act and what we can do to improve it!
What is the EPBC Act?
The Environment Protection and Biodiversity Conservation Act 1999 (the EPBC Act) is Australia’s main federal law on biodiversity. The Act dictates that decisions which could have a significant impact on the environment will need approval from the Minister for the Environment.
While there are some good elements of the EPBC Act, the legislation does not sufficiently protect biodiversity and fragile ecosystems. It clearly is meeting neither its purpose nor the challenge of safeguarding the Australian environment for the future. We know this because of the grim statistics on Australian ecosystems: this country leads the world in mammal extinctions; we are a hotspot for deforestation; and the 2016 State of Environment report described the outlook for our biodiversity as “poor and worsening”.
Why is the EPBC Act so ineffective?
There are a number of reasons why the Act is insufficient. Firstly, there is an extremely low rate of refusal of development projects. Of around 6100 projects which have been referred to the government since the Act’s introduction, only 21 projects were refused. This represents a culture that prioritises development over safeguarding the environment.
The Act has limited regulatory capacity - while more than 7.7 million hectares of threatened species habitat have been lost since 1999, only 10% could have been regulated under the EPBC Act. This means the Act doesn’t sufficiently protect against bulldozing and clearing. The scope of the Act is unfortunately very narrow, only focussing on ‘matters of environmental significance’ and/or actions of Commonwealth land. This means that it is particularly bad at regulating land clearing.
Furthermore, even when it can regulate development, its ability to enforce compliance to the act is very poor. For example, in 2017, Adani was fined only $12 000 for releasing coalwater at the Abbott Point coal terminal flowed into the Caley Valley Wetlands. This means it does not successfully deter polluters nor punish breached of the Act.
Another major problem with the Act is the large degree of Ministerial discretion involved. There are no criteria or frameworks to guide decision-making. This obviously leaves decision-making vulnerable to ideology and politicking. While the Act compels environment ministers to “provide for the protection of the environment”, this is open to interpretation, which has meant that Ministers like Greg Hunt have consistently deemed the impact of Climate Change as not significant enough to prevent mining projects. Recovery and threat abatement plans, which seek to prevent and manage environmental risks in development, are optional, further reducing the success of the Act.
How can the Act be improved?
Environmental laws need to be seriously strengthened, alongside the creation of institutions that can make environmental decisions independently and transparently.
There needs to be national environmental laws that ensure that the federal government leads environmental conservation. The patchy and confusing distribution of responsibility in Australia means that environmental protection frequently lacks proper coordination. The oversight of the federal government should expand to:
Guaranteeing the identification and protection of critical habitats
Ensuring recovery and threat abatement plans are mandatory
Providing national protections for water resources, national parks, and reserves
Mitigating and adapting to climate change
Creating a new classification for Ecosystems or National Importance that are essential for people and nature
Controlling deforestation and creating incentives for land managers to protect and restore ecosystems on their properties
Providing emergency listings for wildlife and land which is threatened by damaging events like bushfires
Ensuring binding national standards are set for air and plastic pollution
New legislation should be introduced to provide the government with the ability to set biding national standards and objectives.
It’s also vital that we create more independent and trustworthy institutions. In particular, we need an independent National Environmental Protection Authority - this would restore integrity and improve transparency of environmental decision making under national law. A national Environmental Commission should monitor environmental health and decide upon national standards to allow better management of our natural environment and cultural heritage. This new framework needs to include more capacity for assessment of projects, greater emphasis on Indigenous leadership and land management practices, better auditing, monitoring and enforcement, and more consideration of climate change within the legislation.
Community rights and participation are important, meaning the framework should give the community more rights to hold regulators to account, for instance open standing and merits review for environmental decisions. It should also ensure that information and data is accessible to the community and guarantee community consultation processes.
How can I get involved?
Submissions for the review close at 5pm today, so get on it!
Read the Australian Conservation Foundation’s guide on how to write a submission here.
You can read the USyd Environment Collective’s template here.