A key pillar of Graeme Samuel’s vision for EPBC Act reform as set out in his Interim Report is the development of enforceable national environmental standards. The idea is that the Commonwealth will set standards for matters of national environmental significance (MNES), such as threatened species, Ramsar wetlands, migratory species, world and national heritage.
These standards are to underpin a range of environmental law processes, including:
- assessment and approval of actions that are likely to impact MNES;
- regional planning and funding;
- and accreditation of state and territory laws and other regulatory regimes that meet the standards.
The standards are a key focus for the EPBC Act review Consultative Group convened by Graeme Samuel. Let’s look at them closely.
What exactly will national environmental standards cover?
The Interim Report confirms that the current EPBC Act is failing to deliver environmental outcomes and proposes that national standards are needed to identify and mandate the desired outcomes. To achieve the comprehensive reform needed to address the extensive failings of the current Act, the Report contends that a whole suite of detailed standards will be required. The Interim Report states:
The Review proposes that the suite of National Environmental Standards should set the requirements for decision-making to deliver outcomes for the environment, and clearly define the fundamental processes that ensure sound and effective decision-making. As a starting point, the Review proposes that the suite of National Environmental Standards should include requirements relating to:
- ecologically sustainable development
- matters of national environmental significance (MNES)
- transparent processes and robust decisions, including:
- judicial review
- community consultation
- adequate assessment of impact, including climate impacts on MNES
- emissions-profile disclosure
- Indigenous engagement and involvement in environmental decision-making
- monitoring, compliance and enforcement
- data and information
- environmental monitoring and evaluation of outcomes
- restoration and recovery
- wildlife permits and trade.
How will standards be developed?
The task of developing national standards is critical and immense given the wide range of complex environmental issues that need to be regulated. Standards for a robust system would ideally cover everything from overarching principles to evidence-based standards for individual species and for specific processes. The Appendix to the Interim Report sets out eight examples of prototype standards, addressing:
- an overarching MNES standard,
- world and national heritage,
- wetlands of international importance (Ramsar wetlands),
- threatened species and ecological communities,
- migratory species,
- the Commonwealth Marine environment,
- the Great Barrier Reef Marine Park, and
- protection of the environment from nuclear actions.
The prototype standards as initially drafted in the Appendix to the Interim Report largely reflect the status quo and restate current EPBC Act requirements and considerations. This will not deliver environmental outcomes.
In our view, the standards need to raise the bar.
To give an idea of what kind of requirements will need to be in a strengthened standard, it is useful to start with the overarching MNES standard prototype as proposed in the Interim Report. If a strong clear overarching standard can be agreed, this will help guide the development of the plethora of detailed standards that will be required for specific matters and processes.
The overarching standard should set the bar high and guide development of a subsequent suite of standards by requiring, for example, that all relevant decisions, actions, plans and policies must:
- protect, maintain and enhance environmental values and ecological character of MNES,
- be consistent with the principles of ecologically sustainable development, the precautionary principle and the principle of non-regression,
- address and prevent cumulative impacts, and
- Avoid or abate listed key threatening processes.
These are just some examples of core concepts that need to be built into enforceable standards. In addition, terms proposed in the prototype standards such as “unacceptable impact” must be clearly and scientifically defined and it must be made clear that the standards are to be applied at all scales.
Significant expert input and discussion is needed to strengthen the prototype standards and develop the necessary suite of detailed standards and related policies.
EDO is currently working with members of the Consultative Group and a range of experts who have been given the daunting task of designing standards. We commend the Review for engaging a range of leading experts in specific areas to engage in the standards drafting process, however we are very concerned at the timeframes set for this crucially important work. There is particular pressure to rapidly draft interim standards given the review and legislative timeframes proposed.
In our last update (Are we about to fast track our way to weaker environmental standards and protections?), we noted the Government’s intention to introduce amending legislation to facilitate the devolution of environmental approval powers now, before the full suite of standards is developed. We understand that the intention is that interim standards will be developed for this process. Interim standards are likely to focus on MNES, but also include indigenous engagement and involvement in decision making, compliance and enforcement, assurance and data and information.
We have serious concerns about the adequacy of interim standards – particularly in terms of whether they will be legally able to go beyond the inadequate current requirements or whether they will be constrained by the existing framework – essentially locking in the status quo of environmental decline. This is just one of the many legal and environmental risks of the devolution agenda.
We have concerns about the legal status and enforceability of interim standards. If they are simply appendices to broad bilateral accreditation agreements, they may not have the regulatory force necessary to underpin a reformed system and actually deliver environmental outcomes. Locking in weak interim standards under the current inadequate framework via a rushed Bill now has the real potential to derail plans for the comprehensive legislative reform identified in the review – ie, of drafting a new Act or Acts.
Will standards protect and recover our environment?
To be effective for a range of purposes, standards will need to be able to be applied at a range of scales – from national law, to state processes, to conditions of approval for individual projects. The standards will be meaningless if they are not effectively applied at the project level where environmental impacts and outcomes occur. For standards to achieve the desired environmental outcomes under a new or amended Act, they need to be clear, mandatory and tailored to the wide range of regulated issues. A simplified short list of general, discretionary or unclear standards will not improve effectiveness, clarity and certainty for business and industry, or deliver environmental outcomes.
In summary, national environmental standards have the potential to be a game changer in reforming Australian environmental law if:
- There is a comprehensive suite of environmental outcome and assurance standards;
- An overarching standard requires that MNES be protected, maintained and enhanced, and that cumulative impacts are addressed;
- Adequate time is given for the standards to be developed by experts;
- The standards are underpinned by comprehensive data and information and set against clear baselines, so that progress and outcomes can be tracked;
- The standards can be strengthened over time in response to new environmental information, impacts or events;
- The standards apply at all levels;
- The standards are mandatory, enforceable and not able to be overcome by exemptions (ie any flexibility should be strictly limited); and
- The standards are enforced by an independent national regulator.
The current Act does not include a power to make and enforce national standards. This detail is critical and it is not clear whether it will be included in the proposed amending legislation that is due to hit parliament in the coming weeks. The government has already ruled out an independent regulator, and a full suite of assurance standards and mechanisms does not yet exist.
Without effective assurance, compliance and enforcement of national standards at all scales, the potential for national standards to reverse the trajectories of decline, to stop the extinction crisis and build resilient ecosystems is in serious question.
EDO will continue to advocate for a proper comprehensive reform process involving expert input and development of a full and effective suite of environmental and assurance standards and mechanisms. We support national leadership and responsibility for environmental outcomes, with independent regulatory oversight and accountability.
The critical issue of assurance, compliance and enforcement will be the subject of our next update.