Labor’s environmental reform racket

On Tuesday night this week, Sally Sitou, one of the more active and engaged Labor backbenchers, hosted an online forum with Environment Minister Murray Watt. It was inundated with interest.

Some 1500 people, mostly party members, many from the Labor Environment Action Network, signed up in the hope of hearing more about Watt’s imminent reforms to Australia’s main environment legislation, the Environment Protection and Biodiversity Conservation Act.

Many were disappointed, however, at the lack of information from the minister. Despite the importance of the changes, he had little to say. As one participant says: “The minister actually said at one point, ‘There will be more in the media tomorrow and you can read it there.’ ”

Sure enough, on Wednesday morning there was some new information on what will be in the package of proposed changes to environmental legislation, to be introduced into parliament this week.

In an interview with Guardian Australia, Watt said companies could face fines of up to $825 million and be forced to give up any benefit they had accrued by breaching the new environment laws. Individuals could be fined up to $1.6 million.

He also flagged that a new federal environment protection authority would be empowered to issue stop-work orders to prevent environmental harm.

The legislation would, he said, include a provision that development proponents must demonstrate a “net gain” for the environment and would be required to “avoid or mitigate environmental damage before they look to offsets”.

Further detail has been dripped out since, notably in relation to greenhouse gas pollution. The government has confirmed companies proposing high-emissions developments will have to disclose the quantum of those emissions, and their plans to mitigate them, in the application process.

The effect on global climate will not be a consideration, however, and there will be no “climate trigger”, as sought by environment groups and the Greens.

Labor’s rationale is that it has enacted other legislation that makes a climate trigger redundant. It claims the safeguard mechanism caps gradually reduce the amount of carbon dioxide that can be emitted by big companies.

Nonetheless, much about the planned EPBC Act reform remains unclear – even to stakeholders who have been briefed on it – such as the exact role and powers of the proposed environment protection authority.

Watt claimed in the Guardian interview the government had not determined whether the minister would retain the right to make final decisions on major projects or whether that responsibility would lie with the authority.

This is widely disbelieved.

The Australian Financial Review, for example, in its report on Wednesday, attributed to unnamed sources, said the environment minister “will continue to have the final say on environmental approvals, as well as the ability to delegate assessments to federal and state EPAs”.

“Watt’s rejection of an independent, arms-length approval process will anger environment groups,” the story said, “but sidesteps a fresh fight with miners and Western Australia’s Labor government.”

Equally concerning for advocates of a stronger EPBC regime is the fact that the centrepiece of the reforms – a new set of national environmental standards – will not be determined until next year. This is despite the fact Watt wants the legislation passed before the end of this year.

He has repeatedly said he is open to dealing with either the Greens or the Coalition to pass the bill in the Senate. This hope is undermined by the lack of detail on environmental standards and who will administer them, however, with the government essentially asking the Senate to sign a blank cheque.

“These standards, we don’t know what they are yet, because they won’t come until after the legislation’s passed,” says the Greens’ senator Sarah Hanson-Young. “And giving the state and territory governments the right to decide what projects are good or bad for the environment, I think, invites ecological disaster.”

Hanson-Young made that assessment on Tuesday, ahead of a briefing on the legislation. On Wednesday, after being briefed, she hardened her position.

“The government’s proposal weakens environmental protections and makes destroying nature easier, faster and cheaper for industry,” she told The Saturday Paper.

“There’s no protection for native forests or the climate. The package is worse than the status quo and actually weakens environmental protection.”

There is a measure of hyperbole in that statement: it is a matter of near-universal agreement that the current EPBC Act, passed 25 years ago under the Howard government, has been an environmental disaster.

Since it came into force, says Glenn Walker, head of the nature program at Greenpeace, “an area the size of Tasmania has been bulldozed”.

“If ever you wanted evidence the act doesn’t work and hasn’t been protecting our forests, then there it is,” he says.

The biggest contributor to deforestation, Walker says, is not native forest logging or mining, although their impact is substantial. It is clearing for livestock – sheep and particularly beef cattle.

The destruction continues apace. A report released by the Wilderness Society this week found one million hectares had been cleared in Queensland alone in the two-and-a-half years since the election of the Albanese government.

There is history to this and to the proposal for reform.

Even as it failed to prevent environmental damage, the current EPBC Act frustrated proposed developments. Its labyrinthine assessment processes caused long delays.

Multiple reviews of the Act, most recently that led by businessman Graeme Samuel, commissioned six years ago by then environment minister Sussan Ley, have called for radical overhaul.

Ley attempted to bring a reform package together, but it went nowhere.

Labor came to government promising change but also has been slow to act.

An attempt at reform by former environment minister Tanya Plibersek came close to agreement with the Greens in the last term of parliament but was scuppered by Prime Minister Anthony Albanese. Roger Cook, the Labor premier of Western Australia, apparently acting at the behest of that state’s mining lobby, claimed credit for sinking it.

Watt has worked hard to revive the reforms, consulting widely with various stakeholders in scores of meetings over the past few months: among them state governments, particularly the recalcitrant Western Australian Labor government; the Business Council and Minerals Council; and various environment groups. Agreement has been elusive.

Paul Sinclair, acting chief executive of the Australian Conservation Foundation (ACF), which was party to those consultations, lists some of the major issues that the foundation advocated on behalf of 80-odd conservation organisations.

One is strong national environmental standards. As already noted, Watt deferred those, to be brought in under regulation next year, after the legislation is passed – if it is passed.

Another key request from the conservation movement is a strong, independent EPA.

“We don’t agree with the model under which the minister is the key decision-maker,” Sinclair says.

Watt says that, too, is still under consideration. Industry is firmly of the view that the minister should have an overriding power, at least for major approvals.

Third, says Sinclair, is a clear definition of what would constitute “unacceptable impacts” on sensitive environments, “so there is no assessment, it just doesn’t happen”.

Watt has said he supports the idea but has not committed to a definition and it remains a point of contention with industry. Again, no clarity.

Fourth, Sinclair says, is climate.

“It just doesn’t pass the pub test to ignore the effect of global heating on nature,” he says. “There’s a real reticence to deal with that issue.”

Given the nexus between the conservation movement and the Greens – the party’s former leader, Adam Bandt, will take up the leadership of the ACF in January – you have to think the government will either have to make concessions or look to the Coalition for support to get its changes through the parliament.

That also could be fraught.

One argument that Watt has made strongly and consistently over the months is that reforming the EPBC Act would expedite the process of approving new renewable energy projects and transmission lines.

There is a substantial number in the opposition – Nationals, in particular – who don’t want these things expedited. They oppose the idea of new solar and wind farms and transmission lines marching across agricultural land. They also oppose emissions reduction targets, want to abandon net zero, and in some cases do not even accept the reality of climate change.

The possibility that a strengthened EPBC Act might stop their constituents from bulldozing trees to make way for more cattle would also be anathema.

The Coalition leadership is barely holding the show together. The last thing Sussan Ley needs is further division over environmental laws, suggests David Ritter, chief executive of Greenpeace Australia Pacific, another of the big environmental organisations involved in negotiations with the government over its planned reforms.

“It’s very hard to imagine, based on the track record of some of the members of the Coalition, that any piece of legislative reform that is actually good for nature is going to meet with the approval of some of those recalcitrant elements,” he says.

“Of course, Sussan Ley was the minister who received Graeme Samuel’s review, so she’s personally well aware of the significant – very, very significant – problems with the Act as it runs at the moment.

“But whether that awareness can somehow translate to being able to bring her party over the line … you want to travel hopefully in the world, but it doesn’t feel like it’s particularly likely.”

On Thursday, having been unusually reticent for a couple of days, as the details of the government’s proposed reforms began to emerge, Ley came out strongly, calling the package a “basket case”.

She claimed the changes would not speed up project approvals and amounted to a “gift” to other countries competing for investment.

“There’s nothing in what has been said today that gives investors or the Coalition confidence that this government actually understands what the problem is and has a plan to address it,” she said.

Her words were in sharp contrast to those of the Liberal environment spokesperson, Angie Bell, whose only previous comment was that she would withhold judgement until she had seen the full detail of the package “because we know the devil is in the detail”.

She was not wrong there. Even those who have received briefings this week have only been privy to “maybe 70 per cent” of that detail, according to a government source. Some of that detail remains a work in progress.

It all seems rather rushed and, in the words of one source, “a bit arse about, when we have penalties announced for breaching environmental standards, before we know what the standards are”.

Yet while the details of the proposed reforms are unclear, says Hanson-Young, “the politics are very clear. The minister has been given his marching orders from the PM to fix it, get it off the table as a political problem.”

That brings us back to Tuesday night’s online forum, which, according to our source, seemed less like an information session than a rally-the-troops exercise.

Watt’s message, they say, was “all about ‘getting the balance right’ and being able to fast-track projects, and don’t block housing, don’t block renewable energy, and call your senators, call your MPs, if they’re not from Labor, and tell them to back this through, you know. It was kind of like a… You know what it was: they were briefing untrusted fellow travellers.

“And him saying he was open to negotiate with either side of politics, and how the media stories saying that the LNP were the preferred pathway, wasn’t actually true, and how he’s been talking to the Greens just as much.”

This suggests that just as the Coalition parties are concerned about losing support to the right if they appear too environmentally friendly, Labor is worried about losing support to the left by appearing too environmentally unfriendly.

The hard reality of political numbers means that at some point soon Watt and the government are going to have to cut a deal.

“They are going to have to pick a side,” says Hanson-Young.

“Do they want reforms that actually make things better for environmental outcomes or that are weighted towards making it easier and cheaper for business to destroy nature?”

The government, of course, argues that environmental protection and expedited development need not be mutually exclusive.

It’s a hard case to make if you are relying on the support of the current Coalition parties to get your legislation through.

As Greenpeace’s David Ritter says: “Once upon a time, there was a green beating heart within the Coalition, in the days of [Malcolm] Fraser or Robert Hill, but it’s been pretty hard to see that over recent times.”

Paul Sinclair underlines the point: “At the last federal election, we assessed the Coalition’s environment and climate policies and they were absolutely appalling.”

The government’s problem now is that both the Coalition and the Greens have indicated they will not support reforms unless there are big changes.

It’s trite but true to say this is going to be an interesting week in politics. More than that, says Sinclair: “It is a once-in-a-generation opportunity to create a national environment law that actually protects the environment. It’s too important to stuff up.”