Papers reveal federal environment department officials warned against preemptively handing approval powers to states
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Aerial shot of Kangaroo Valley. New FOI documents reveal the
federal environment department worried rushing a transfer of
approval powers could ‘fundamentally undermine’ an independent
review of Australia’s national environment laws. Photograph: Tetra Images/Alamy Stock Photo
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Despite the warning, the Morrison and Western Australian governments pushed ahead with plans to give the states greater authority in approving developments before the formal review by former competition watchdog head Graeme Samuel was finished.
Samuel ultimately recommended the change should only happen alongside the introduction of strong national environmental standards and the establishment of independent bodies to ensure they were enforced – two initiatives the government is yet to move on.
Documents obtained by Guardian Australia under freedom of information laws detail meetings between senior federal environment department officials and the Chamber of Minerals and Energy of Western Australia in late 2019 and early 2020.
The documents show the chamber lobbied for a handover of federal decision-making powers to Western Australia before the once-in-a-decade review of national environmental laws was complete.
Legislation to give states more responsibility for decision-making under the Environment Protection and Biodiversity (EPBC) Act has been before the parliament since August and is due to be debated by the Senate in February or March.
As Guardian Australia has reported, the government began drafting its bill before receiving the interim findings of the Samuel review. The final report, released last week, called for an overhaul of the laws and the establishment of several independent bodies to oversee them.
The government has not responded to Samuel’s 38 recommendations, but is pushing ahead with its bid to transfer approval powers.
The new documents include talking points that department officials prepared for a meeting between its secretary, Andrew Metcalfe and the state minerals chamber on 12 February 2020, during the early stages of the review.
The talking points state the chamber and companies including Rio Tinto wanted a bilateral approval agreement that would give the McGowan government responsibility for decisions under national laws.
They said the department was opposed “because of its potential to undermine the outcomes of the EPBC Act review, its limited scope of coverage and legal risk unless legislative amendments to the EPBC Act can be secured”.
Early pursuit of an agreement could derail the chance for substantial reform of environmental laws, the document states. “The department is not supportive at this time,” it concluded.
Officials said the department did not believe a transfer of approval powers was the best way to make the environmental assessment process more efficient.
They instead recommended making improvements to streamlined assessment processes – known as bilateral assessment agreements, under which the commonwealth retains its decision-making powers.
In a briefing to Metcalfe, officials said a renewed bilateral assessment agreement with WA would benefit about half of the projects proposed in the state.
As previous documents have shown, the Morrison government was under pressure from both the McGowan government and Rio Tinto to transfer approval powers to WA. It ultimately pushed ahead and the department drew up a timeline for reaching such an agreement shortly after the government received the interim Samuel review in June.
James Trezise, a policy analyst at the Australian Conservation Foundation, said the new documents confirmed that rushing a transfer of approval powers through the parliament would “fundamentally undermine” Samuel’s independent review.
He said the department’s warnings had not been heeded.
“It is deeply concerning that a select group of industry players, including Rio Tinto, have been actively undermining the capacity for any win-win reforms put forward by the review,” he said.
A spokesperson for the federal environment department said the documents were internal briefings written in the early stages of the Samuel review and had not been provided as advice to the government. The spokesperson said the department’s position at the time was “prudent” and sought not to preempt the EPBC review.
They added the documents acknowledged that transferring approval powers would require legislative reform and when Samuel met with state and territory officials in June he had indicated his interim report would support streamlined decision-making.
A spokesperson for the environment minister, Sussan Ley, said the documents pre-dated the review. He said departmental discussions “by nature canvass a variety of options” and were not advice to a minister, and that all states and territories now supported a transfer of approval powers.
Labor’s environment spokeswoman, Terri Butler, said the FOI showed the prime minister, Scott Morrison, had “politicised, compromised and bungled the environment law reform process”.
Suzanne Milthrope, of The Wilderness Society, said the final Samuel report emphasised that the handover of approval powers should not occur before other reforms were made, including the establishment of an independent office of environmental compliance.
“If the Morrison plan to forge ahead with a bilateral agreement with the WA state government was bad in 2020, when their environment department said it shouldn’t happen, it’s even worse in 2021 now that their own independent review says it not the right path,” she said.
Links
- Australia urged to overhaul environment laws and reverse 'decline of our iconic places'
- Rex Patrick says he may not support Coalition plan on environment law
- Climate change litigation in Australia: key trends and predictions (pdf)
- Climate Change (National Framework for Adaptation and Mitigation) Bill 2020
- Government eager to reintroduce harmful environmental legislation
- (AU) A Major Report Excoriated Australia’s Environment Laws. Sussan Ley’s Response Is Confused And Risky
- (AU) Top Judge Urges Lawyers To Take Stand On Climate Change
- (AU) Companies, Directors, Governments Face Wave Of Climate Change Lawfare
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