Two ‘‘Knitting Nannas” protesters dressed as the Minister for Climate Change and Energy, Chris Bowen, and Minister for the Environment and Water, Tanya Plibersek. Photo: James Day.
Nearly a fortnight after the Federal Court ruled in favour of Environment and Water Minister Tanya Plibersek’s decision to expand the operations of two coal mines, the government has introduced legislation to set up Australia’s first national environment protection agency.
As part of the Labor Government’s Nature Positive Plan, Environment Protection Australia (EPA) will be able to issue ”stop-work” orders to prevent serious environmental damage and bring down penalties through the courts. Business audits revealing serious financial offences could result in fines of up to $780 million, or seven-year prison sentences for serious intentional breaches of federal environment law.
Minister Plibersek said she would direct the EPA to examine illegal land clearing and offset conditions as a priority, following a recent audit that discovered one in seven developments may have breached their offset conditions.
The Federal Government also introduced Environment Information Australia, which will provide up-to-date environmental data to the public and release ”State of the Environment” reports every two years instead of five.
Despite the ”landmark” legislation, environment groups have hit out at the government for its “toothless” EPA.
National coordinator of environment group Lock the Gate, Carmel Flint, said the new EPA would be powerless to address the massive damage that greenhouse gas emissions from fossil fuel projects were inflicting.
“The failure to act now means that it’s business as usual for 59 coal and gas expansions that are currently being assessed under national environment law – a law that sees 99 per cent of projects approved,” Ms Flint said.
“There’s also a really nasty sting in the tail of this bill – it delivers a fast track for damaging projects by allowing proponents a right of veto over whether the minister can stop the clock on decisions if more scientific information is needed.”
Climate Council head of policy Dr Jennifer Rayner said the urgent and essential reforms her organisation had hoped for to the existing Environment Protection and Biodiversity Conservation Act 1999 (EPBC Act) were ” nowhere to be seen”.
“Establishing the new Environment Protection Agency without fixing our broken national environment law is like planting seeds in barren soil – a waste of time,” Dr Rayner said.
Earlier this month, the full bench of the Federal Court upheld the Environment and Water Minister’s decision to approve the expansion of two coal mines in NSW: Narrabri and Mt Pleasant.
Minister Plibersek joined mining companies Narrabri Coal Operations (a subsidiary of Whitehaven Coal) and MACH Energy in the final ”Living Wonders” climate case, instigated by two appeals from the Environment Council of Central Queensland (ECoCeQ) that were later dismissed.
Represented by Environmental Justice Australia (EJA), the ECoCeQ argued on five grounds that Minister Plibersek failed to properly assess the climate impact of these expansions and her decision was “irrational, illogical and unlawful”.
All five grounds failed, mostly due to the EJA’s “misunderstanding” or failure to point out the flaws in Minister Plibersek’s reasoning.
The Federal Court’s judgment reads: “In each case, a delegate of the Minister made a ‘controlled action decision’, neither of which were identified as ‘relevant impacts’ or any impacts on matters of national environmental significance (MNES) arising from the greenhouse gas emissions (GHG) associated with the extension of the operation of the coal mines.”
The EJA asked the Minister to revoke these decisions and list all MNES identified as affected by climate change under the EPBC Act as “controlling provisions”, meaning they were not allowed to be approved.
When the Minister refused to do so, her lawyers argued that she “looked at the proportion of the contribution on a global scale and found combustion of coal from the extended operation of the mine was ‘not a substantial cause'”.
In essence, the coal mines’ expansion of operations would not make a significant enough contribution to climate change that it warrants any consideration of risk or lack of approval.
According to the EJA, this is known as the “market substitution” argument or “drug-dealers defence”, as well as “drop in the ocean” logic.
In its judgment, the Federal Court bench acknowledged that: “The arguments on this appeal do underscore the ill-suitedness of the present legislative scheme of the EPBC Act to the assessment of environmental threats such as climate change and global warming and their impacts on MNES in Australia.
“This proceeding, and the merits of decision-making underlying it, might be said to raise the question whether the legislative scheme is fit for purpose in this respect.”
