Climate change fight spreads to a wider environment

The Australian - 2 January 2016

By Graham Lloyd

With the ink not yet dry on the Paris climate change agreement, the foundations are being laid for a significant campaign to transform the nation’s environmental thinking. Rooted in the declaration of support for global action in Paris, the new battleground stretches well beyond wildfire opposition to individual projects.

The “new deal” plan stakes a claim for disruptive renewal of laws, policy and land management practices across the board. Environmental groups have developed an overarching narrative to challenge key developments in coal, oil and coal-seam gas.

The high-profile campaigns on Adani’s Carmichael coalmine in Queensland and the Great Barrier Reef will be joined this year by an equally fierce push against BP’s plans to drill for deepwater oil in the Great Australian Bight. A boom in state-sanctioned land clearing will be used to highlight inconsistencies between state actions and federal ambitions.

Underpinning it all is development of a policy-reform blueprint that calls for greater co-operative federalism and genuine green-tape reform through the creation of new institutions such as a federal Environment Protection Agency with sweeping powers.

The clock has been started on a three-month consultation process to build grassroots support for change. Business, community groups and all levels of government will be pressured to join a roundtable discussion on reform.

Environment groups want the federal government to convene a Council of Australian Governments process to align the disparate climate policies between jurisdictions. Part of that, they say, must be a wholesale rethinking of Australia’s environmental management. The ultimate agenda is to make the case that existing federal environmental regulations through the Environment Protection and Biodiversity Conservation Act belong to a bygone era.

Twenty years ago the prism through which environmental issues were seen involved forests and national parks, but the world of 2016 is a fundamentally different thing, the groups argue, because it is no longer possible to conceive a new environmental framework without climate change at its centre.

A potent new weapon in the campaign will be the networks forged with a new generation of international fund managers who remain devoted to capitalism but nonetheless are rethinking the basis on which trillions of dollars for future investments should be directed.

“If you want to get to a position where you have a net zero carbon world, that is going to require almost a new-deal type of change in planning and thinking and economic stimulus to make that happen,” says Wilderness Society national campaign manager Lyndon Schneiders.

“The political class isn’t thinking that far ahead yet but they need to be putting in place policy that will make that possible now.”

An alliance of environmental groups has established the Australian Panel of Experts on Environmental Law to develop the blueprint for change.

The panel says the UN’s 2030 Agenda for Sustainable Development provides a powerful catalyst for the review and reform of the ecologically sustainable development principle that has been the main goal of environmental law for more than 20 years.

And it raises the possibility of reform of commonwealth-state arrangements on the environment.

“Alternative federal systems, such as the United States’ experience, provide for different distribution of roles, responsibilities and powers over environmental affairs,” an APEEL discussion paper says.

“The US arrangements allow for a more centralised federalism model where national rules and standards are set by federal authority and operate as a minimum performance standard, with states able to adopt more stringent standards if they wish.”

APEEL has said its preliminary view is there is a case for a “strong, independent, national environment body, with broad powers, including oversight of the achievement of environmental goals and implementation of environmental law”.

In economic matters, the Reserve Bank or Australian Competition & Consumer Commission serves similar independent functions to those APEEL says should be considered for the environment.

“Such bodies are able to act independently of day-to-day government decision-making and have substantial powers and expertise to carry out their duties,” the discussion paper says. “In turn, these institutions should be subject to effective transparency and accountability mechanisms.”

The panel argues for greater transparency and easier public access to information on decision-making on environmental matters. It also raises the idea that places, natural and cultural heritage features, plants, animals and ecosystems can be legally recognised.

“What seems like a radical idea extends a very commonplace principle in law — that things can have rights and others can exercise those rights on their behalf,” APEEL says. “This is the case with, for example, corporations, ships and governments, and even the economy.

“The premise is that the values of nature and natural and cultural places could be argued before a court or tribunal by a person or organisation standing in for them. For instance, that there could be a person or organisation who can act legally as a guardian for nature or for a particular place or species.” The paper also asks whether a right to a safe and healthy environment should be enshrined in Australian law.

Ultimately, however, debate will turn on the consequences of Australia’s bipartisan commitment to act on climate change. According to Schneiders, the Paris agreement in which Australia supported a more ambitious “aspirational” target to limit future global temperature rises to 1.5C highlights the need for change.

“The EPBC makes absolutely no mention of climate, yet climate change is arguably the biggest single threat to nature long-term, and yet we have no nationally agreed approach to mitigating climate impacts on nature or dealing with the climate intensity of new developments,’’ Schneiders says.

“The Australian government has now committed to the aspiration of around 1.5 degrees but has no direct mechanism to deliver on this ambition.”

The Australian Conservation Foundation challenge to Adani’s Carmichael mine is an indicator of things to come. The ACF is arguing that federal Environment Minister Greg Hunt failed to consider the impact of “climate pollution” on the Great Barrier Reef from coal that would be exported from the Adani mine.

Previous court actions to have the carbon-emissions impact of fossil-fuel developments determined in the country of production rather than combustion have not been successful. But lower courts in some international jurisdictions have already made novel rulings on national “duty of care” responsibilities regarding climate-change decisions that are being widely claimed by environment groups as a sign of where things are going.

How this issue is handled promises to be a defining indicator of how successful the environment movement will be in stimulating a broader compact with government and business on law reform.

Climate change and coal remains the Middle East of environmental politics. The question is, will the environment movement as a whole be willing to acknow­ledge the coal industry’s right to exist? Alternatively, how will business lobby groups maintain a united front as the ground shifts and members are faced with increasingly different outlooks?

Leading voices within peak environment groups say business has misread the campaign being waged against coal. “Environment groups have been very clear there will be coal, but no new coal; but the mining industry hasn’t quite understood that,” an insider says.

“We are not at the stage yet in the public debate where there is no fossil fuels forever, but what the industry is being told behind closed doors is that unless there is some sort of progress on this stuff it will transform into that quite quickly.”

With the departure of Tony Abbott as prime minister, industry is being encouraged to bargain. Environmental groups want to stress that environment law is fundamental to a whole range of government policy, including economic policy.

“This is something the hard heads in Treasury and the business community haven’t quite got their head around in some respects,” Schneiders says.

“But when you look at much of the public policy debate for much of the last four or five years around development and new projects, it almost all comes back to the regulatory system and the efficiency of the regulatory system and community buy-in. For the people in Canberra who like to pretend that the environment doesn’t matter, they underplay how central public policy on environment is to the economy.”

For this reason, environmental groups argue they support so-called “green tape” reforms to reduce regulatory inefficiency, up to a point.

They have accepted the argument that there was onerous regulation and that regulation of itself was not a good thing: it had to be effective regulation.

The challenge they have now put to Malcolm Turnbull and Bill Shorten is that transforming the economy will involve new thinking about environmental regulation.

A starting point is to revisit co-operative federalism and reform the eight approaches to environment and climate between the states and the commonwealth.

As APEEL argues, one pathway is the more US-style federal regulation.

While the US has a reputation for small government, it has much stronger institutions that tend to be supported.

By comparison, Australia has lots of regulation, but by and large it is considered to be bad regulation that doesn’t work. It fails the environment because all the key indicators say the health of the environment is going backwards.

More than 1200 Australian plants and nearly 400 animals are listed as threatened with extinction. More than 3000 Australians die every year from air pollution-related illness, which is nearly twice the national road toll.

One million hectares of Australian native vegetation were destroyed in the first decade of this century and more than 50,000 mines in Australia have not been remediated.

The existing regulatory approach is also failing the business community because it cannot provide certainty needed for investment decisions to be made.

In response, the federal government has been forced to consider attempts to limit the right of environment groups to access the courts to challenge development approvals.

Where peak industry groups such as the Queensland Resources Council want tougher regulatory support, environmental groups say they want government and business to think differently.

They point to ClimateWorks modelling on decarbonisation of the economy.

The ClimateWorks pathway to a net zero carbon economy by 2050 does not focus particularly on coal-fired powers stations or stationary energy.

The big gains in emissions reductions come from land-based carbon including reforestation.

“That is a huge new national project,” Schneiders says, “and we have got no national policy around that at all.”