CHAPTER SEVEN
As a result of this overview analysis, and considering the interactions and cumulative impacts of the Agreements of '92, it is clear that remedial actions are required in 1993, as a matter of urgency. The ANZECC meets in May 1993, after Standing Committee meetings in March and May, and legislation to establish the NEPA is scheduled before the end of April.
The environment is but one of many components influencing Australian investment and international competitiveness. Australia has the indigenous resilience bred of millennia and the human ingenuity to turn the environment into a positive factor instead of the overwhelmingly inhibiting and uncertain influence conveyed by the Agreements of '92.
The Agreements contain valuable elements that Australians accept as important to their present and future. Concepts such as sustainable development, a "no regrets" policy on greenhouse, intergenerational equity that includes today's community, and balanced environmental ethics, have broad community support. Such fundamentals must remain. But somewhere during 1992 the government processes that bred the Agreements of '92 became flawed and out of balance, leading to documents and processes that Australians cannot afford and would not tolerate were they fully informed.
In the light of such uncertainties, and in the turmoil of organisational stresses and discussions in 1992, it is clear that one must demand measurable outcomes at an early date.
Accordingly, the CEPA's work should be focused on major national issues which are keys to national efficiency and international competitiveness, as well as environmental protection. I suggest that two such issues are national standards and environmental impact assessments. (It may be noted that after this recommendation had been arrived at independently, it was found to be in broad agreement with the approach being taken within the CEPA management.) (103) It is understood that a Corporate Plan is being prepared for the CEPA.
The CEPA could be an honest broker to assist the States and Territories. Most important is that the CEPA should produce identifiable outcomes of measurable economic and environmental benefit. A one-year test is a minimum. Measurable results are a must.
It is important to recognise that the NEPA is to become an actuality under a schedule and agreement of the IGAE. Draft legislation is to be available to First Ministers before May 1993, and they are committed to seeking Parliamentary approvals of the outcome.
It is fascinating to speculate whether State Parliaments or any one Parliament will give as vigorous consideration to the NEPA as they would to a Bill creating their own State environmental agency.
Upon consideration of the following factors:
- newness of the CEPA;
- complexities of existing statutory arrangements;
- environmental and statutory diversities in Australia;
- the state of the Australian economy;
- the dichotomy of administrative arrangements for the physical and biological environments;
- the large bureaucracy of the new agency, the CEPA; and
- proposed functions and processes of the NEPA
one has to conclude that there is no present, urgent need for the NEPA, however defined.
When one considers that the very concept of the NEPA appears contrary to each State's rights to set its own priorities in environmental protection, opposition to the NEPA hardens.
The following ten recommendations are put forward as a modest and incomplete contribution to the future responsible development of Australia's environmental policies and as practical measures which can retain what was valuable in the achievements of 1992.
Whereas the IGAE presently calls for draft legislation on the NEPA to be presented to First Ministers before the end of April, 1993, the evidence presented in this paper shows this to be a premature and unsafe move which must not be allowed to gain further momentum or present further distractions to useful activities,
it is recommended
that moves to establish the NEPA stop.
Whereas the National Strategy for Ecologically Sustainable Development is fatally flawed because:
- it cannot agree on the fundamental definition of the term Ecologically Sustainable Development;
- it is totally uncosted;
- it is unbalanced;
- it advocates an immense increase in government interventions;
- it agrees that all its 384 government commitments cannot be implemented; and
- consequently, various governments may or may not undertake various processes so that uncertainties are being spread widely over most developments and ongoing government actions in many fields,
it is recommended
that a new InterGovernmental Agreement be negotiated with an economic development vision that concentrates on encouraging and responsibly enabling the development aspects of sustainable development, and that is relevant to Australia, thereby injecting balance and economic support into long-term environmental policies by promoting forceful future growth as advocated by the Brundtland Commission.
Whereas the IGAE supports the precautionary principle expressed with a zero-risk ethos which would promote lack of action, be contrary to a proud Australian heritage and adverse to Australia's future national and global responsibilities, and
Whereas Brundtland pointed out that sustainable development requires "growth that is forceful",
it is recommended
that the definition of the precautionary principle be rewritten and promoted to be specifically relevant to Australia, with the benefits and heritage of a responsible finite risk approach explained accurately to the community, and with economic cost included as a factor.
Whereas the priorities of the CEPA are widely dispersed across many issues, including non-urgent matters such as improved recycling, the B. Smart programme and reporting on the state of the environment, and
Whereas nationalising the environment has unknown costs and unproven benefits to either the environment or the economy, so that it would be prudent to focus the CEPA on testing the concept, and delivering measurable outcomes,
it is recommended
that the CEPA priorities be focused for at least one year by serving as an honest broker to coordinate actions by States and Territories and achieve measurable outcomes on two issues that have major impacts directly on Australia's economic and environmental well-being and international competitiveness, viz:
- national standards vis-à-vis risks, and
- environmental impact assessments (EIAs).
Whereas the present ethos of the precautionary principle neglects the diversity, indigenous ruggedness and resilience of the Australian environment, some Australian government regulatory processes and standards may be unnecessarily over-protective to the environment, with a consequential heavy but uncalculated cost both directly and through lost opportunities,
it is recommended
that as a first test, the CEPA critically examine the major existing environmental regulatory standards and assess them not simply in the light of known risks but also as to:
- their relevance to Australia and its diverse environments
- their true and total cost impact on the community, including forgone benefits; and
- the very concept of uniform national environmental standards.
Whereas all environmental agencies are presently conferring on processes of environmental impact assessments (EIAs), with schedules and extensive details that would continue the outdated 1970s thrust of EIAs as weapons against development rather than enabling tools for responsible development in the environmentally skilled 1990s,
it is recommended
that as a second test, the CEPA explore the efficiency and environmentally-responsible opportunities available by recognising the environmental maturity, skills and community awareness of environmental ethics that have developed in Australia over the past two decades, and help the States and Territories revitalise the purpose and functions of EIAs for Australia in the 1990s.
Whereas the National Greenhouse Response Strategy is fatally flawed because:
- it does not have as its basis the most elementary and fundamental numbers as to how much hotter greenhouse would make Australia, with or without the Strategy, and
- it was developed before the November 1992 major revision by CSIRO of the future climate scenario,
it is recommended
that the National Greenhouse Response Strategy be reviewed under three specific terms of reference:
- to take account of the much smaller greenhouse impacts now forecast by CSIRO,
- to take account of its relevance specifically to Australia, both as to its geographical location and its resource richness; and
- to take account of the importance of natural changes in climate, particularly those associated with El Niño-Southern Oscillation effects which cause extensive floods and droughts in Australia.
Whereas the Australian representative signed the UN Framework Convention on Climate Change in Rio in June, 1992, and the Convention contains responsibilities as to greenhouse policies and reporting, which could impact on Australia, and already disadvantage it against international competitors like India and Chile,
it is recommended
that Australia refrain from considering ratification of the Convention on Climate Change until the National Greenhouse Response Strategy is rationalised as per the previous recommendation.
Whereas the Australian representative signed the Biological Diversity Convention in Rio in June 1992, and the IGAE Schedule 6 recognises its wide-ranging ramifications and provides mechanisms for Australian consultation on this Convention, but the Commonwealth is still drafting a national strategy for the conservation of biological diversity,
it is recommended
that the international Biological Diversity Convention not be ratified until a draft national strategy is exposed to a second round of public scrutiny.
Whereas the new Commonwealth agency, the CEPA, is concentrating on issues of the physical environment, while the established Australian National Parks and Wildlife Service continues its traditional work on conservation, including endangered species, yet most other Australian governments have reached accommodation on resolving problems where both physical and biological environments are important,
it is recommended
that national strategies in conservation issues such as biological diversity not be finalised until the feasibility and practical advantages of a nationalised approach to environmental issues be palpably demonstrated by the CEPA, with measurable outcomes of both increased efficiency and more effective environmental management.
The major and potentially most valuable achievement of the Agreements of '92 was the formal, structured commitment to the environment by the First Ministers. The pity was the material they had to work with. These recommendations to not imply cancelling that commitment but rather giving it a rational, and Australian, base.
If, after appropriate review of this paper by governments and industry, its criticisms of the total effects of the Agreements of '92 are found to be valid, then implementation of the recommendations should begin quickly. Implementation of every recommendation is both feasible and urgent.
Under the IGAE Section 5.1, the IGAE operation is due to be reviewed in 1995, which is intolerably late. International reporting requirements of Rio conventions will not permit either indecision or delay. Governments must bite the bullet and take remedial and effective actions.
The Federal election of 1996 constricts the window of opportunity for action on the recommendations to 1993 and 1994, and perhaps early 1995. Such a short interval requires rapid and concerted action by several governments.
The Commonwealth, of its own volition, could begin action on most recommendations. State governments will need to urge and otherwise assist such actions.
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Australian National Report to the United Nations Conference on Environment and Development, Public Discussion Draft, DASET, Canberra, 30 July 1991.
ANZECC, A National Approach to Environmental Impact Assessment in Australia, October 1991.
Brennan, Justice G., Commonwealth v Tasmania, 158 Commonwealth Law Reports, 1, 1983.
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APPENDIX 1: NATIONAL STANDARDS
1 GENERAL
National standards involve two strings of data. The first is one of straightforward collation of data, or as the IGAE puts it in Schedule 1, "comprehensive directories of natural resource and environmental spatial datasets". That can be presumed to proceed in an archival manner, indefinitely. Its actual value to the community will depend on both the quality of the inputs and the rigour of the analyses; but in a thinly-populated, resource-dependent, young and growing country, its potential value is immense. A State of the Environment report is of this nature. Schedule 1 and Schedule 2 of the IGAE provide valuable opportunities for agencies such as the Australian Land Information Council and ERIN, the Environmental Resources Information Network. If such mechanisms are adequately resourced, and operated with intellectual rigour free of zealotry, they can be immensely valuable to the environment and the economy.
But the second string involves judgements about data, leading to the setting of "standards". This is the area of concern to regulators and industry. And it is fraught with difficulties. Indeed, many of the reasons for questioning the value of "standards" are already reflected in the various options and legalistic escape clauses of Schedule 4 of the IGAE. Thus the NEPA "may establish measures" (Schedule 4, Section 5 of the IGAE), "but will consider the most effective means" to achieve the required national environmental outcomes (Schedule 4, Section 6) and "will also take into account existing intergovernmental measures and mechanisms" in relation to such (Schedule 4, Section 6).
As Clause 19 of Schedule 4 of the IGAE states, "more stringent measures" can still be applied by the Commonwealth or a State, provided they prevailed when the NEPA is established. And hence there is a real possibility that the "national" standards may become the lowest common denominator of existing standards. The basement standard, of course, will be that which prevents unacceptable danger to human health, but even there, probability issues of hazard and risk may obfuscate sharp criteria.
Uniform national standards for the environmental diversity that so strongly characterises Australia may involve standards that are excessive in some areas and too low in others.
History tells us that the process of setting standards in environmental issues can become just another preoccupation with processes. The problem can be categorised into confusion: the IGAE distinguishes between standards and goals, and guidelines and protocols (see discussion and definitions in Section 3.4 above.)
Thus, few will question that water quality criteria must be divided into criteria for certain categories of water use. The standards for swimming water are clearly not the same as for drinking water, depending -- one supposes -- on one's skill and enthusiasm for swimming. The standards for waters in which you boat are coarser again, depending -- one supposes -- on one's propensity to fall overboard. The standards for heavy metals for water in which swim fish that may be eaten may not be quite as severe as those in which shell-fish grow. Standards for irrigation water, or industrial cooling water, or simply lakes for the looking at, or swamps for waterfowl, may again be different.
And so a hierarchy of standards develops. Often it is rationalised or categorised by means of specifying what beneficial use is being protected in the standard-setting exercise, and thus immediately the presumption may be made, or even regulated, that current use is best use. And, most important, a value judgement is made, not an objective scientific number listed. The National Strategy for ESD acknowledges such problems: "the appropriateness of some policies and progress on implementation will vary between regions". (104) Thus, while some industries may want uniformity, the agreements may not provide it. In any event, as discussed above, industry wants consistency not necessarily uniformity. And it wants reality not zealotry.
In the national guidelines on water quality, issued by the ANZECC in November 1992, it was recognised that not all the guidelines are being met at present in Australia. It was also recognised that some could not be met without disproportionate expense.
As can be imagined, categorisations of standards (mandatory), goals and guidelines can keep many people occupied, in research and evaluation, and in reporting and regulating. A State can develop standards for regions or sub-regions, such as the Victorian EPA's Draft Policy on the Waters of Far East Gippsland. (105) It needs no great imagination to predict potential weaknesses in such processes. But clearly some such work is vitally important for human and environmental health. The imperfections of existing systems and the complexity of environmental processes simply have to be resolved, if Australia is to retain a high quality of life and environment.
Will the notion of the CEPA/NEPA somehow improve the present imperfect and varied array of various standards around Australia? Conceivably, the CEPA could assist by making available some examples and data bases of standards, so that neophyte standard-setters could browse and borrow or adapt. It could collect international data and establish a sound international network to minimise unnecessary Australian duplication of efforts.
But should a national body attempt to screen such data bases or comment on particular applicabilities, when one considers the vast array of local and regional environments in this vast country? How realistically can anyone know the local intricacies better than the locals?
Obviously a national body could bring expertise to issues, and could focus attention on critically important issues. It might filter priorities, and it might promote the basement-level standards that must be set to minimise threats to human health. It could give advice on the latest international expert opinion on lead levels in blood, for example, and whether the old level of 25 micrograms per decilitre is still acceptable or whether it should be reduced to 10. But realistically, can it do much more, and can it do so cost effectively?
The IGAE is alert to such questions. The proposed standards to be set by the NEPA are to be published in draft form. With the draft is to be an assessment of the social and economic impacts of the proposed standard. Whether the CEPA does this or not is a matter for the CEPA.
Industries understandably demand some assurances that standards they must meet by regulation, or standards they should seek by self-regulation, have some credibility and consistency. They do not want their competitiveness, local or international, changed by whimsy. The community in turn does not want to learn, by way of the Reader's Digest or local conservation groups, that their local environment is being abused more than another's.
This paper cannot do more than suggest that expectations cannot be met that the CEPA will somehow magically standardise environmental requirements comprehensively. It may be able to target key areas of priorities, and key health standards, but ultimately the sheer logistics and the sheer variety of Australian environments demand local solutions, of State or smaller dimensions of control.
One might well ask why there should be uniformity of environmental controls over, say, Victoria and WA when their very environments are so alien to each other. Different climates and cultures, soils and geology, water resources and industries, sunshine and rain, fauna and flora, transportation and recreation and even their very heritages are so different that no IGAE can homogenise them. The geological accidents that kept this continent as an entity in the great Gondwana schisms did not confer environmental uniformity on Australia, merely commonality of geographic and ecological isolation.
Environmental diversity is relevant to the very methodologies of setting standards, which cannot be explored here. Should one be concerned at the environmental impacts, or the ambient levels, or the emission ("end of pipe") concentrations?
One is forced to come back to the point made previously (Section 6 above), that human health may become the best common arbiter. But even human health has vast and uncertain definition. The level of tolerable risk is a subjective and community number, not a scientific one. In the real world, standards may not meet all expectations.
There is the separate issue of States' rights, in considering the concept of the NEPA's setting uniform national standards by a two-thirds majority.
In connection with the idea of uniform national standards, there are arguments for and against, as discussed briefly here.
But in connection with the idea of environmental priorities, few could quarrel with the right of each government to decide which environmental issues have priority in allocation of limited human and fiscal resources. The larger States of Queensland and Western Australia, resource-rich but with vast demands on infrastructure for remote regional areas, may have priorities very different from those of the south-eastern States.
The possibility of the NEPA's requiring Queensland and Western Australia to impose uniform standards in air, say, or water, may have disproportionate impacts on those States, and not be among their most urgent priorities. On this ground alone, one must question the desirability of the NEPA. It does not appear to have been addressed in the literature.
No attempt is made here to analyse whether the NEPA has a close precedent in other fields in Australia. That would require immersion in the draft legislation.
But it may be informative to mention briefly the National Food Authority (NFA), so recently created (Commonwealth Act No 118 of 1991). It sets national standards in such matters as residues in specified foods of the herbicide Thifensulfuron. The NFA can be given directions by the (Commonwealth) Minister, subject to his or her consultation with the Council of Commonwealth, State and Territory Ministers established in 1986. The NFA prepares draft standards and makes recommendations to the Council.
To the extent that any comparison is meaningful, a statutory CEPA rather than a statutory NEPA could fulfil comparable functions in environmental issues.
But one is still left with the fact that uniformity of food standards is one thing, uniformity of environmental standards not dominated by human health, quite another.
2 LOWEST COMMON DENOMINATORS
In the setting of national standards for air, water and the physical environment generally, the IGAE recognises that a party (a government) may wish to either maintain or invoke "more stringent standards" than those set by the NEPA. (106) The agreement does not give equivalent authority to invoke less stringent measures, even for specific circumstances or environments. Politically this is understandable.
In the real world, however, such environmental piety is both unrealistic and unforgiving. Australia in 1992 has a mixture of old and new industries, with different levels of environmental godliness. In some areas, pollution levels may already be high.
Under such circumstances, and bearing in mind the extensive logistics and administrative burdens, it is conceivable that the "national standards" set by the NEPA, or otherwise agreed, may become the lowest common denominator. (107) The standards may be neither what new industry can meet already nor what it is willing to aspire to achieve, given the freedom to do so.
Conversely, one can look to the situation in the USA, where the Federal Clean Air Act 1990 set ambient levels of air quality that may be impossible for some States to meet. So too, Australian governments may agree on guidelines which cannot be met realistically, as with some water quality figures in November 1992. That is the purpose of "guidelines" as distinct from "standards" which are mandatory.
Overhanging such national standards, the IGAE also commits the parties to a uniform hierarchy of offences. (108)
The great variability in the Australian natural and physical environment, and the variability in physical dispersion of pollution, complicate the issue of national standards. There is one basement standard set by human health, nationwide.
It has been claimed (see Section 4.4 above) that the call for uniform national standards comes from largely industry, particularly manufacturing industry, concerned about unfair competitive advantages which may become available to others under various governments, or about "pollution havens", or about additional costs through different standards that must be met in different jurisdictions. In fact, the Business Council of Australia called for consistency of standards, not necessarily uniformity.
The Agreements of '92, by themselves, do not ensure either such consistency or uniformity. Whether they improve the chance of consistency or uniformity remains to be seen.
Conversely, the achievement of uniform standards should not be cited as a justification for the Agreements of '92, nor as a claim that governments have made such Agreements in response to industry demands. The Agreements are first and foremost political documents for governments, not action plans for industry or the creation of wealth to finance the desired quality of life. The costs of the Agreements are unknown. No industry could survive if it signed Agreements in such ignorance.
Much of the problem would seem to be caused by concentration on standards, the mandatory measures. One must ask whether such problems would be eased if governments, perhaps through the CEPA, gave more attention to guidelines, and industry was permitted to attain or better those guidelines in processes of self-regulation.
3 COSTS OF STANDARDS AND ENVIRONMENTAL REGULATIONS
I know of no analysis of the costs and benefits of Australian environmental regulatory controls other than in a few localised areas, such as the Industry Commission Inquiry into Paper Recycling or the Resource Assessment Commission Forest and Timber Inquiry. (109) Indeed the vast dimensions of those two focused analyses, taking years in time, millions in dollars and months in forgone productivity by witnesses, indicate the enormity, and the impracticality, of umbrella standardisation of Australian environments.
In the USA the estimated costs of all regulations in 1991 was $542 billion -- the fastest growing component being environmental regulations at a cost of $151 billion, with forecast future growth of more than 50 per cent by the year 2000. (110)
The cost of compliance with environmental regulations is too complex to pursue here in detail. Costs can be incurred by governments and local authorities in expenditures such as achieving clean water and managing waste waters, or removing and treating or recycling rubbish and solid waste. There are administrative, paperwork costs incurred by the private sector in complying with requirements for licences, work approvals, environmental audits and approval renewals. And in some cases, compliance may require new methodologies or new equipment to meet more rigorous standards.
Because local government is responsible for much of the treatment of community waste, which costs it may pass on directly to the community itself in local rates and charges, it is useful to note a recent "revolution" by some local governments in the USA.
Nine participating cities in Ohio estimated compliance costs (1992 to 2001) of about $3 billion for 14 environmental regulations or issues. Columbus, Ohio, with a budget of $591 million, spent $62 million in environmental compliance. But it is the growth in costs, to about $107 million in 1995 that sparked recent local reviews. (111)
The Ohio group considered only direct costs from 14 specific environmental regulations or general environmental rules. These included the Clean Water Act and the Clean Air Act, and such items as $200 per year per Akron household for the next twenty years to comply with the "Combined Sewer Overflow section of the Clean Water Act." Compliance with all requirements of this Act amounted to about 90 per cent of total costs, with "land" costs next at 6.9 per cent.
The Ohio report gives an excellent example of trickle-down environmental regulations. And the local governments stressed the need for regulations to be in the real world and firmly based on credible science. They cited the review of the scientific base of the US EPA, reported in March 1992 under the title Safeguarding the Future: Credible Science, Credible Decisions.
The reality is that a desired decrease in risk must be based on credible science. The precautionary principle, if carried too far, can escalate costs for a negligible reduction in risk.
The Association of California Water Agencies found that costs for meeting the radon standard in California alone would be $3.7 billion, and national costs some $12 billion to $20 billion, all to reduce only 1 per cent of the public radon exposure.
It is such real-world numbers, and the very concept of risk as a subjective, not an absolute number, that can be neglected in a scurry for setting standards. The financial burden of new standards is seldom known before they are imposed.
In this matter, the intended provisions of cost impacts of draft standards of the NEPA is a necessary step.
4 DISCUSSION OF STANDARDS
The problem of physical pollution can be looked at from two kinds of approach: the setting of standards or the precautionary approach.
If the physics, chemistry, biological and health aspects are reasonably identifiable and/or have a tradition, for example, sulphur dioxide in air, sulphuric acid in water, then a set of environmental regulations can be stated, with standards sufficiently high or safe that the probability of harm is either below some threshold, for example, one chance in a million, or else the concentration or amount of the particular pollutant is otherwise "safe" for a designated use.
One difficulty in setting standards is the immensity of the task. The World Commission on Environment and Development estimated that some 70,000 to 80,000 chemicals were on the market in 1987, with 1,000 to 2,000 more entering each year, and with more than 500 chemicals and chemical products banned altogether or having their uses severely restricted in the country of origin. (112)
There are, of course, other difficulties, such as synergistic effects, delayed effects, exposures etc. But usually some standards can be set, or trialled.
If, however, the actual science of an issue is little known, the philosophy of the precautionary principle is often advocated (see Section 3.4.4 above). Often in practice the precautionary principle is used so that, in situations where the risk is actually not quantified or known, governments avoid the very possibility of creating any risk at all. So no action proceeds, and without a wealth-creating project, no research is financed to assess the reality or magnitude of the risk. So development is stymied.
There has to be a new examination of the whole concept of risk and hazard. The present views, and the extreme forms of the precautionary principle, are simply incompatible with sustained development in the real world. They are more suitable for a society sinking into dull oblivion.
There has to be a greater community awareness that standards are judgemental, and vary according to the risk that society is willing to accept. Furthermore, a risk costed out of reality may well invite other risks originally unforeseen.
One anecdotal example is a regulation that babies in mother's arms in airlines seats in the USA risked 1 death per year, so a decision was made to insist on a separate seat. Market research showed that the added cost would be such that about 25 per cent of families would choose to travel by car. The higher risk of car travel led to predictions of 6 fatalities per year rather than the single airline death. Who gained from the regulation?
Analysis of risks and setting of standards is technically complex. If the whole philosophy of a country is to adopt a precautionary principle, then there is a bias toward trying to achieve zero risk, and hence toward pushing for more rigorous standards.
As an aside, there is also a curious, negative ethos attached to most current discussions of environmental risk. It is analogous to the two views of a glass containing water. The optimist says it is half-full while the pessimist says it is half-empty.
In the early space programme one talked in terms of the probability of success as being, say, 99 in 100 (that is, 0.99), rather than the risk of failure being 1 chance in 100. But in current discussions of environmental risk, it is always the risk of failure that is discussed.
Let it be clear that this article is not a plea for higher risk or for poorer standards. It is simply a plea for community recognition that standards are rarely absolute. They usually contain a subjective judgement of what level of risk is acceptable. And that subjectivity will be biased towards tighter and tighter standards, at higher costs, so long as the concept of a precautionary principle influences the subjectivity of standard setters to seek zero risk, or minimum blame.
If a country can afford to apply the precautionary principle, as the nine First Ministers agreed, then, fine. But since no costs are ever quoted, one must assume they did so in ignorance of the economic cost to the nation.
These notes on standards have been lengthy because the issue of "standards" has been given as the rationale for the NEPA. The notes are sufficient to show that there are weighty issues of policy to be resolved before the NEPA could proceed.
The argument for uniform national environmental standards is fragile (see Section 4.4 above). Yet it has been the principal driving force toward a Federal environmental agency.
In turn, much of the rationale for the NEPA is the same call, for uniform, binding national standards, even to having a uniform hierarchy of penalties for offences. (113)
So the argument for the NEPA is unproven. However, there may be merit in such aspects as uniform guidelines and goals, as distinct from mandatory standards. Yet the present, non-statutory Ministerial Council, the ANZECC, is perfectly capable of developing such guidelines, and does not need a tenth, and supreme, environmental agency.
Thus the issue of national standards can best be pursued by present agencies, led by the CEPA as an honest broker.
APPENDIX 2: ILLUSTRATIVE STATE-FEDERAL ISSUES IN CANADA
It is impossible in any short review even to begin to analyse the Canadian issues of Federal versus Provincial jurisdiction and determine their possible applicability to the Australian NEPA issues. The variations between provinces, the fact that environmental legislation is changing in those provinces just as it is in Australia, and the sheer dynamics of political considerations, make any brief analysis or simplification of the Canadian issues too simplistic. Any close comparison with the Australian scenarios would be even more simplistic. The major part played by First People in Canadian legal and political issues is also more sophisticated than in Australia, as yet. However, two examples of comparisons follow, because although they highlight differences from Australia, they also carry broad lessons.
The first example concerns national parks. The Federal Agency, Environment Canada, had a workforce in mid-1992 of about 11,000. Approximately 40 per cent are involved in national parks, which in Canada are quite distinct from State or regional parks. One could foresee that the Australian National Parks and Wildlife Service might seek to use the NEPA process to try to establish more direct involvement in what are presently called "National Parks" in Australia, but which are so designated by individual State and Territory governments. As yet, conservation is not within the scope of the NEPA.
Indeed, none of the Agreements of '92 pays much attention to National Parks, other than to note that "The parties agree that the management of parks and protected areas is largely a function of the States." (114) The Australian report to the UNCED, however, comments that such
a division of responsibility has tended to inhibit adoption of a national approach in the past, but in the last two decades it has been increasingly recognised that coordination and harmonisation of policies ... is beneficial. ... (115)
As commented previously, the present Federal bureaucratic dichotomy between conservation and environment is a massive time-bomb in Australia's environmental strategies, not only on national parks. It ensures, at best, confusion, and at worst, at some unknown time, moves to develop a whole new set of destabilising agreements on a national scale. Proposals for a national biodiversity strategy or ratification of the Convention on Biological Diversity, must be assessed with the dichotomy, and the NEPA, in mind.
The second Canadian example concerns Provincial and Federal environmental impact assessments. In March 1992 the Canadian House of Commons passed what is called "Bill C-13", an Act to establish a federal environmental assessment process. This arose out of the perceived need to reform the Environmental Assessment and Review Process (EARP) whose guidelines were issued by Order-in-Council in 1984. Those, in turn, had grown from the use of environmental assessment by the Government of Canada since 1974 to predict the potential environmental effects of proposals requiring a federal government decision. Bill C-13 as legislation faced a paradoxical problem because of a Federal Court ruling about the Oldman River Dam.
To those in Australia who have watched progressive federal involvement in such environmental issues as Fraser Island sand mining, the Franklin Dam, the Wesley Vale pulp mill and the Coronation Hill mine, the Canadian example of the Oldman Dam will be either refreshing or worrying -- depending on one's view. The four Australian examples all resulted in no development occurring. In the case of the Oldman Dam, the dam was built before the Canadian Federal Government became involved, at the direction of the Federal Court of Appeal rather than because of its desire to intervene. From 1975 to 1984 the government of Alberta carried out public hearings and an environmental assessment on various aspects of proposals to build a dam. (116) The Federal government processes were not invoked.
The $350 million dam was built in southern Alberta after environmental studies were carried out under Alberta procedures. Although there were complaints four to five years before that Ottawa had not conducted a proper environmental review prior to construction beginning, Ottawa had said that it did not need one. The Alberta government complained that federal environmental assessment would be akin to Ottawa meddling in provincial affairs. In March 1990, however, the Canadian judiciary, the Federal Court of Appeal, ruled that before a navigable rivers licence could be granted by the Federal government it would have to conduct an environmental review. The Federal Ministers of Transport and of Fisheries and Oceans had to comply with the Federal EIA process and "revisit" the project.
The resulting report of the Canadian Independent Environmental Review Panel was received in May 1992. It had as its primary recommendation that the dam be decommissioned "by opening the low level diversion tunnels to allow unimpeded flow of the river". The environment minister, Jean Charest, rejected the recommendation. His position was different from that of his counterparts in Australia facing the Franklin proposal, because the Oldman Dam exists. At its peak in 1991 the dam contained 300 million cubic metres of water. (To convey the size in other terms, such a volume is about 150 per cent of the total water used by Perth that year.) The Canadian Panel also gave the Minister other recommendations as alternatives to the preferred decommissioning. The present situation is unclear, but the dam certainly exists.
The unwillingness of both Provincial and Federal governments to cooperate in the recent process is clear in the subsequent report. (117) The government of Alberta took action unsuccessfully in both the Supreme and Federal Courts to prevent the new public review. That government did not participate in the review as the project proponent, although it had built the dam. As to the Federal government, the review panel remarked that federal agencies were "significantly less accommodating than in other reviews." There was a significant "lack of commitment".
There are many lessons for Australia from the Canadian experience with the Oldman River Dam project, but it is unclear whether all parties are aware of them.
How the Australian judiciary would seek to couple the Agreements of '92 with the real world is a matter which presumably awaits specific projects and challenges. But uncertainty is certainly one present outcome. The growing popularity of giving legal standing to members of the general community is another factor that cannot be ignored. (118)
ENDNOTES
103. D. Buckingham, pers. comm.
104. NSESD, page 10.
105. EPA of Victoria, Draft Environmental Protection Policy: The Waters of Far East Gippsland.
106. IGAE, Sections 19 and 20.
107. Curiously, the Commonwealth Position Paper argued (page 19) that it was "very important" to have a simple majority vote (in the NEPA) to avoid setting the lowest common denominator standards.
108. IGAE, Schedule 4, Section 18.
109. Industry Commission, Interim Report on Paper Recycling; Resource Assessment Commission, Forest and Timber Inquiry Final Report.
110. Abelson, "Regulatory Costs".
111. Pompili el al., Ohio Metropolitan Area Cost Report for Environmental Compliance.
112. WCED, Our Common Future.
113. IGAE, Schedule 4, Section 18.
114. IGAE, Paragraph 12 of Schedule 9.
115. Australian National Report to UNCED, page 105.
116. FEARO, Oldman River Dam.
117. Ibid.
118. See Tim Robertson and Mark Anderson, "The Chaelundi Aftermath", for an analysis of the forest conflict in northern NSW.
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