An Environment Protection and Biodiversity Conservation Act primer: Part 2

Las post, I looked at the limited scope of the Act and why it is inappropriate for dealing with cumulative impacts, in the context of the Australian Environment Minister's decision to refuse consent to a windfarm which could harm the endangered orange-bellied parrot. Today I look at how imposing conditions under the EPBC Act allows for win-win outcomes and some lessons for us from this situation.

Win-wins are commonplace under the Act

The media reports on this issue seem to have assumed or implied that the Minister had only two choices: to approve the windfarm or to reject it. Harry Clarke has pointed out that there was a straightforward win-win solution here: the parrots can be successfully bred and returned to the wild, so the windfarm could be allowed with the condition that it pay for a breeding and release program that returned a few parrots each year to the wild population.

Similarly, Chris Tzaros, who co-ordinates the Orange-bellied Parrot Project said he was surprised by the Government's decision, saying he thought Bald Hills could have been safely approved with a conservation management plan.

As I understand it, either solution was well within the Minister’s power, which makes you wonder whether the decision was more political than environmental. The Minister can approve project with all sorts of conditions.

The Age reported that the Minister's decision was only the fourth time an environment minister has invoked the EPBC Act to veto a proposed development, out of 2745 developments referred to the Government since it came into force six years ago. I spoke to one of the main EPBC Act decision-makers in the federal Department of Environment and Heritage last year about the success of the Act and this statistic. He made the point that many hundreds of projects had been modified substantially by conditions imposed by the Minister which made a huge difference to their environmental impacts. In his view, this was the real power and success of the Act.

He also commented that projects were never refused outright unless they were so inherently destructive that no conditions could be applied that would moderate their impact. In most of those cases, the projects were illegal under State law anyway and had been submitted only to make some kind of political point. This sounds very different to the situation with the Bald Hills windfarm project.

It's unclear why sensible conditions were not considered by the Minister in this case.

Some conclusions

Whether the Minister’s decision was politically-driven or not, it was certainly a bad one for the environment and in terms of social costs and benefits: it will likely save one bird every 109 years while sacrificing an otherwise viable development. And, in my opinion it represents appalling administration of the Act:

• It uses the Act inappropriately to address a cumulative impacts problem by prohibiting a development which will have a truly trivial affect on the problem;
  
• It does not consider imposing conditions which could actually have done something positive for the orange-bellied parrot while allowing an important renewable energy development to proceed.

There are reports that a legal challenge to the Minister’s decision is being considered. I would have thought such a challenge would have some legs. I think there’s questions about whether a windfarm that could kill on average one parrot every 109 years is a ‘significant impact’, as is required under the Act. I think there’s also an argument that the Minister’s consideration of the ‘cumulative impact’ of other sites, rather than just looking at the marginal impact of this development means that he has taken irrelevant factors into consideration, which would invalidate his decision. (I should point out that that’s not an argument that would be very popular with green groups, who have been pushing consideration of ‘cumulative impacts’ under the EPBC Act).

(Originally posted at the Oikos blog).