Environment Protection: Fed and States v Greens Fight Looming

The Council of Australian Government (CoAG) has initiated a “fast-tracked process” to effectively hand on the Federal Government’s development approval powers under the Environment Protection and Biodiversity Act 1999 to the states and territories.

Those on the Environmental (Greens) side of the political scale argue that this could see Australia return to a system where things were highly decentralised and environmental management in Australia was at best uneven and in the worst cases meant that nationally significant areas and problems received inadequate attention, or worse no attention.

Those on the business side are instead arguing that the Federal Government should not backslide and should move ahead with plans to cut "green-tape" as it has become known. Green tape which it is claimed is holding up many planned projects and developments at state level. As the Australian reports chief executives are heading to Canberra tomorrow (6 December 2012) for a business advisory forum and “to urge state and federal leaders to simplify rules that cost companies hundreds of millions of dollars”

Green groups on the other hand have stepped up their efforts to derail a state-federal agreement on cutting green tape and are warning of legal action if the proposed changes go ahead.

The Federal governments constitutional power to legislate for environmental protection is now well-recognized both in legislation and case law and successive federal governments have exercised that power through “co-operative federalism” that is, in cooperation as opposed to confrontation with the state and territory governments. This form of cooperation was formalized in the Intergovernmental Agreement on the Environment (IGAE -1992). This agreement defined the roles and responsibilities of Federal, state and local government. Cooperative federalism has shaped the way environmental law and regulation has developed in Australia since the 1990s and CoAG has played a prominent role in that evolution. Those on the Green side argue that this is the way things should stay. They further argue that the Federal government has already streamlined what is arguably the most time-consuming aspect of the two-tier system for developers, namely:  the assessment of projects and activities. They argue that state laws can be used for environmental impact assessment for the purposes of decision-making under both state and federal environment protection laws, so project proponents only have to produce a single environmental assessment. They contend that a further handing on of assessment processes causes concern because state laws and procedures are not as rigorous as the Environment Protection and Biodiversity Act.

It will be interesting to see what comes from the Prime Ministers meeting a forum on the national reform agenda in Parliament House, to be attended by more than 20 executives, ahead of a Council of Australian Governments meeting with premiers on Friday (7 December 2012).

You can read more here and here.

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