Australia’s natural environment is in dire straits. The State of the Environment report — the annual stocktake of the health of the reefs, bushland, and forests that sit at the heart of Australia’s national identity — has consistently shown that these environments are in a state of deterioration and facing a number of ongoing threats.
Chiefly among them is climate change, a threat that will have devastating effects on the natural world in the coming years and yet one which our national environment laws have, thus far, totally failed to acknowledge. Now, politicians and research organisations are fighting to change that.
There has long been acknowledgement from researchers, conservation groups, and even the government itself that Australia’s environmental laws are not fit for purpose. The Environmental Protection and Biodiversity Conservation Act (EPBC), the legislation that is supposed to protect and conserve Australia’s matters of national environmental significance is not doing its job and, despite being a thousand-page document, it does not directly mention climate change once. This means that the primary set of laws intended to protect Australia’s environment does not legally bind the environment minister to consider the climate impact of any coal mines or gas fields.
In 2021, an independent review of the EPBC that has come to be known as the “Samuel Review” (it was headed by the former competition watchdog head, Professor Graeme Samuel) painted a scathing portrait of the laws. The review called the EPBC “ineffective” and said that it was neither addressing current environmental challenges nor could it stand up to future challenges, including climate change.
In December of 2022, Environment Minister Tanya Plibersek released the government’s response to the Samuel Review, the “Nature Positive Plan“. The federal government promised comprehensive reforms, including the establishment of a new national environmental protection agency. However, so far, there still seems to be little acknowledgement that the EPBC needs to be amended to forefront issues of climate change.
Rachel Walmsley, the head of policy and law reform at the Environmental Defenders Office, said that one of the key tensions with the reform process has been the continued reticence to integrate climate and environmental considerations.
“In the Nature Positive Plan, there were references to the fact that the government was going to require project proponents and companies to disclose the emissions that a project would have … And they committed to doing things like improving disclosure of emissions but they stopped short, they haven’t committed to doing a climate trigger,” Walmsley told Crikey.
Under the EPBC, if a project is considered likely to have an impact on environments that are considered “matters of national environmental significance”, then the environmental impact assessment and approval scheme is “triggered” but climate change isn’t currently included as a trigger.
The government is still in the thick of a long consultation period with environmental and conservation organisations on their Nature Positive Plan but, between the Samuel Review and Plibersek’s response, climate and environmental organisations and politicians have sniffed an opportunity to make significant amendments to the legislation. The race to amend the EPBC is well and truly on.
“There’s this amazing opportunity now to get new national laws in place and I think that’s why we’ve seen a flurry of action,” Walmsley said. “There’s a whole lot of groups and stakeholders who are really keen to seize this opportunity and actually get better laws in place for nature and climate.”
There are a number of prominent players trying to ensure that climate change will be included as a fundamental consideration in the EPBC. Firstly, the Greens, who repeatedly made headlines last year in the debate around the Albanese government’s Climate Change Act, have said that they will continue their fight for a climate trigger to be included in the EPBC as the federal government considers the changes to the legislation next year.
Senator Sarah Hanson-Young, who is the Greens’ spokesperson for the environment, told Crikey that Australia’s environmental laws are “broken so long as they fail to tackle climate change and stop native forest logging” and that the Greens will urge Labor to back their climate trigger bill in the Senate.
In September of this year, the Climate Council, in conjunction with Bushfire Survivors for Climate Action, launched a petition calling on the Albanese government to include climate in the EPBC. The petition, which is still collecting signatures, calls on “the federal government to pause approvals for polluting new fossil fuel projects (including extensions) until our national environment law is strong, and effectively deals with climate impacts”.
And recently ACT Senator David Pocock introduced his own bill, which seeks to legislate requirements for politicians and policymakers to consider the impact of climate harm on young people and future generations. The bill adds two conditions that impose a “duty of care” in decisions made under six existing pieces of legislation, including the EPBC.
In a statement to Crikey, Pocock said that “our national environmental laws are broken and not protecting nature” and that “greenhouse gas emissions are driving climate-related loss of biodiversity, so it makes no sense to leave this out of environmental protection legislation”.
While the government continues its consultation on the Nature Positive Plan, there is little clarity on precisely what the new legislation will look like and whether climate change will be adequately addressed, but Walmsley said the sharpened focus on the EPBC is driving hope that the conversation will centre on amending Australia’s environmental laws in the coming year.
“I reckon this is the best chance we have to get better national environmental laws in place. But that’s going to take a whole lot of work and scrutiny to make sure that the laws are actually fit for purpose,” she said.
