A number of stakeholders are urging the Australian government to rein in broad ministerial call-in powers being proposed under its reforms to the country’s environment and biodiversity protection laws.

The government is currently consulting on the reforms to the Environmental Protection and Biodiversity Conservation (EPBC) Act, which are universally considered to be ineffective and outdated.

A number of groups have already raised concerns that the proposed legislation gives the minister of the day unchecked power to veto decisions made by the National Environment Protection Australia (EPA) watchdog body, to be established as part of the reforms, on projects that are up for assessment.

The minister could approve a project, up until a final decision by the EPA has been made, based on what the government has described as its national interest, or “other circumstances … prescribed in the rules”.

In its submission published Thursday, industry body the Carbon Market Institute said the government should clarify how the call-in powers and national interest exemptions would function in practice.

The call-in powers could contradict the EPA’s statutory independence, according to CMI.

“The rationale behind the ministerial call-in power is, moreover, unclear given that in exercising this power, the minister would be required to follow the same assessment process as the EPA,” it said.

CMI said the call-in powers should be limited to a list of clearly-defined circumstances that could be defined in legislation.

In its submission guide to stakeholders, Environmental Justice Australia said no ministerial call-in powers should exist, arguing it would create an alternative back-door approval pathway, which could be subject to inappropriate political influence and corruption.

“Worryingly, once a decision is called-in by the minister, there are no longer requirements for the action not to have unacceptable impacts and not be inconsistent with the national environmental standards, recovery strategies, and threat abatement strategies,” it said.

According to the draft legislation, instead the minister “must have regard” to the abovementioned standards and strategies.

The minister must publish the reasons for electing to make an approval decision “as soon as practical”.

The Indigenous-focussed Central Lands Council said in its submission that the minister should take cultural matters into account, alongside social and economic matters, in deciding whether to exercise the call-in powers.

“In several places, the consultation documents refer to consideration of economic and social matters, but not cultural,” it said.

“In modernising Australia’s national environmental laws, it is critical that the reform be updated throughout to ensure consideration is given to economic, social, and cultural matters. This includes … in deciding whether to exercise the discretion to ‘call in’ an environmental approval decision.”

STANDARDS

The government also intends to introduce National Environmental Standards as a way to improve environmental protection and guide decision making.

However, Environmental Justice Australia said the proposed standards put forward in the reforms are “too weak and high-level to be effective” and would do little to provide protection on the ground.

“All the National Environmental Standards must be clear, specific, and outcome focussed,” it said.

“They need to explicitly prohibit impacts on threatened species habitat and populations, and set out the outcomes for threatened species that projects must be consistent with.”

It said any requirement for ‘net positive outcome’ should be clearly required for each individual affected threatened species or ecological community, rather than an ‘overall goal’ that allows trade-offs between species, which it said would lead to further nature decline.

The government is in the process of reforming environmental offset arrangements, with a standard for restoration actions and restoration contributions, or offsets, to lay out rules and requirements for these compensation mechanisms.

“This includes that restoration actions delivered by project proponents must deliver ‘like-for-like’ benefits to the impacted protected matter,” according to a government fact sheet on the reforms.

CMI said the government should ensure these rules do not compromise the broader nature positive agenda, and that the decision to allow restoration contributions where ‘like for like’ actions are unfeasible should be reconsidered, noting it could adversely impact threatened species and ecosystems.

“We would not support the use of restoration contributions in cases where the Independent Conservation Trust deems funding a ‘like for like’ action is unfeasible,” it said.

It noted that the government’s proposed option in these cases would be that proponents would direct investment in “other direct restoration actions” within the same bioregion, which it said would give priority to impacted species and require due diligence.

However, this would not guarantee a ‘like-for-like’ nature positive outcome, according to CMI.

“Ensuring that contributions are invested in direct ‘restoration actions’ that deliver projected, targeted gains is critical to preventing environmental decline,” it said.

Experts have previously warned that the government and the EPA need to be able to reject projects based on their environmental impacts, rather than allowing proponents to invest in offsets or contributions, if the government wanted to achieve its zero net loss of nature from 2020, and to be ‘nature positive’ by 2030.

More broadly, environmental groups have also urged the government to introduce climate and land clearing triggers into the legislation, to in a bit to limit deforestation and rising carbon emissions.

DATA MATTERS

As part of the reforms, the government also intends to establish Environment Information Australia, which will host key data on project approval processes and decisions, and broader environmental and biodiversity data and statistics.

CMI said in its submission that the government should explore opportunities to streamline and integrate datasets related to Australia’s Nature Positive Plan, the Australian Carbon Credit Unit (ACCU) Scheme, and the broader net zero transition.

This would support interoperability and increase efficiencies, complement existing and emerging reporting frameworks, and address data challenges facing stakeholders, CMI said.

It would also help build confidence in the emerging Nature Repair Market, it added.

The group said the government should fund a national plan to support digitally enabled emissions data capture and management.

“This will provide businesses a more accurate, real-time understanding of their emissions portfolio and support their strategic decisions making as they work to decarbonise,” CMI said.

The government will continue stakeholder consultations ahead of the legislation being introduced into parliament.

By Mark Tilly – mark@carbon-pulse.com

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