Why our environmental laws are failing

​The Environment Protection and Biodiversity Conservation Act 1999 (EPBC Act) is the Australian Federal Government’s environmental legislation. It covers environmental assessment and approvals, protects significant biodiversity and integrates the management of important natural and cultural places.

The second independent review of the EPBC Act commenced on 29 October 2019. The review will be led by Professor Graeme Samuel AC, supported by a panel of experts. A report will be presented to the Minister for the Environment within 12 months of commencement of the review. So the review will be released in a few months time and is a perfect opportunity to shine a light on this bit of legislation.

Australia’s tally of extinct species is quite impressive. Threatened species habitat larger than the size of Tasmania has been destroyed since Australia’s environment laws were enacted, and 93 per cent of this habitat loss was not referred to the federal government for assessment, research shows. The research, published in Conservation Science and Practice, shows that 7.7 million hectares of threatened species habitat has been destroyed in the 20 years since the Environment Protection and Biodiversity Conservation (EPBC) Act 1999 came into force.

Some 85 per cent of land-based threatened species experienced habitat loss. The iconic koala was among the worst affected. More than 90 per cent of habitat loss was not referred or submitted for assessment, despite a requirement to do so under Commonwealth environment laws (SBS News).

In the past decade, three Australian species have become extinct — the Christmas Island forest skink, Christmas Island pipistrelle and Bramble Cay melomys — and two others became extinct in the wild (Live Science).

On a positive note, there is one instance when the Act has been used to save threatened species. This was when the environment minister at the time was Peter Garret. In 2009 the minister put a stop to the proposed $1.8 billion Traveston Dam in Queensland in order to protect endangered species, including the Mary River turtle and cod. The dam was proposed by the Queensland Government to provide 70,000 megalitres of drinking water to the fast growing population of the state's south-east (Sydney Morning Herald).

America on the other hand with their Endangered Species Act has a better track record of bring species back from the brink. The goal of the U.S. Fish and Wildlife Service is to conserve plants and animals listed as endangered or threatened, as well as the ecosystems upon which they depend. In order to have a transparent path to achieve recovery, the Service develops recovery plans for listed species that outline the actions that need to be taken in order to move the species towards no longer requiring federal protection. Some species successfully recovered include the American alligator, American peregrine falcon, Bald eagle and the Brown pelican (U.S. Fish and Wildlife Service).

So why is the EPBC Act failing? Perhaps the answer lies within the referral, assessment and approval process. The referral, assessment and approval provisions prohibit a person from taking a course of action that is likely to have a significant impact on a “matter protected under a provision of Part 3” without the approval of the Minister.

If we take a look at section 18 for example which is the section relevant to listed threatened species and communities, the act states:

18 - Actions with significant impact on listed threatened species or endangered community prohibited without approval

(5)  A person must not take an action that:

(a)  has or will have a significant impact on a listed threatened ecological community included in the critically endangered category; or

(b)  is likely to have a significant impact on a listed threatened ecological community included in the critically endangered category.

This is where the words ‘without approval’ and ‘significant impact’ highlighted above, become pertinent. Upon receiving a referral, the Minister must decide whether approval is required (ie, whether it will have, or is likely to have a significant impact on a matter protected under Pt 3).

All well and good but when we look at some statistics as to how the referral, assessment and approval process is performing we see a different story. According to a study by Andrew Macintosh (Environmental Planning and Law Journal, January 2004) by 30 September 2003, only one action that had been referred to the Minister had been prevented from being undertaken out of a total of 1017 referrals. This trend of referrals getting approval is continuing today.

This wording unfortunately gives the EPBC act very little teeth. A study examined federal government forest and woodland maps derived from satellite imagery. The analysis showed that 7.7 million hectares of threatened species habitat has been cleared or destroyed since the legislation was enacted.

Of this area, 93 per cent as not referred to the federal government and so was neither assessed nor approved. It is possible people may be self-assessing their activities and concluding they will not have a significant impact.

The environment is so fragile at the moment. Endangered species need every bit of help they can get. It would be great if we could turn the tide and bring more species back from the brink like in the U.S. It would be an irreplaceable loss if we were to lose such iconic species such as the koala.

Update: The review into Australia's national environment laws has now been completed and has called for a major overhaul, including establishing an independent regulatory body to oversee them. However Environment Minister Sussan Ley immediately moved to rule out an independent regulatory body (ABC news). This is a real shame as the laws are not doing their job at protecting the environment and the state of the environment is in fact getting worse.