An Environment Protection and Biodiversity Conservation Act primer: Part 1

(OK, not the catchiest title, I’ll admit).

The recent debate over the decision by the Australian Environment Minister to refuse consent to a wind farm because of its possible impacts on the endangered orange-bellied parrot has prompted me to say a few things about Australia’s primary piece of environmental legislation, the Environment Protection and Biodiversity Conservation Act (EPBC Act).

In case you missed the story, orange-bellied parrots are highly endangered, with less than 200 left in the wild. They migrate between Tasmania and Victoria each year. The proposed wind turbines, on the Victorian coast, are in the vicinity of the parrot’s migration zone. Though no birds have ever been sighted near the site there is, according to reports provided to the Environment Minister, a possibility that windfarm turbines in coastal Victoria might kill one bird every year. With the population so endangered, the Minister made the decision not to allow an additional windfarm to go ahead.

The best summary of the political context for the decision – which is important if you want to understand the decision – is this article in the Age. I recommend reading it.

I want to make some comments about the EPBC Act, because an understanding of the Act is also important if you want to understand what has happened here.

Scope

First, the scope of the Act is quite limited. Under the Australian Constitution, the States have general power over things such as the environment. The federal government has power over certain specified national issues, such as defence, trade and foreign affairs. Most of the federal government’s powers to affect the environment derive indirectly from the foreign affairs power: the federal government has entered into environmental treaties – such as the Convention on the Protection of Biological Diversity and the World Heritage Convention – and therefore must have the power to meet its obligations under those treaties. So its power over the environment is mostly limited to certain areas relating to its treaty obligations.

Under the EPBC Act, you need the Environment Minister’s approval for a project if it significantly affects a matter of "national environmental significance". These are:

• World Heritage values of World Heritage properties;
• wetlands of international importance;
• Commonwealth listed threatened species and ecological communities;
• listed migratory species;
• Commonwealth marine areas;
• nuclear actions; and
• listed National and Commonwealth Heritage places.

It is worth pointing out that the federal government would normally have no power to prohibit a windfarm. It has that power in this instance because the windfarm may have a significant impact on a threatened species.

This is relevant because if the federal government wanted, politically, to gain some control over windfarm policy in Australia, it would have to do so in a roundabout way, such as prohibiting any windfarms that happen to get caught in its jurisdiction and then putting pressure on the States to negotiate with it on a national policy. That is what some people have suggested this decision is really about and it is interesting that the Environment Minister has recently called for a national code on wind energy.

Inappropriate for cumulative impacts

An interesting aspect of this decision is that the Environment Minister has refused the proposed 52-turbine windfarm at Bald Hills but has approved substantially larger projects nearby – including one that, according to the Age article (and presumably under the curious licensing scheme of the Act), he has expressly authorised to kill three of the parrots each year.

The Minister has claimed that it is precisely because he has approved these other projects that he can’t approve this one:

The orange-bellied parrot was at such dangerously low levels in terms of population that any additional wind farm in this particular area would have an impact on the survival of the species. The fact is we have had a massive increase in investment in wind farms: 400 turbines have been built in the past four years and there are 145 more in the pipeline. That has cumulatively a new impact on the environment which we have for the first time sought to assess.

Interestingly, and contrary to every media report that I’ve seen, the report on impacts did not say that the Bald Hills windfarm could kill up to one parrot per year, it said that, in total, all existing and proposed windfarms in Victoria and Tasmania could kill up to one parrot per year. The contribution of the Bald Hill windfarm itself to this number is trivial. (The Minister never claimed that the Bald Hills windfarm would kill one bird per year either – I know journalists don’t read reports but surely they could at least read the Minister’s one-page media release). Incidentally, if you look hard enough and do a simple calculation, the report cited by the Minister does contain the actual number of parrots estimated to be killed by the proposed Bald Hills windfarm: one every 109 years.*

This illustrates one of the major limitations of the Act: it is a project-by-project approval scheme. Project approval schemes are good at dealing with the particular local impacts of individual projects. What they are not good at is dealing with cumulative impacts: where each project has only a small additional impact but many projects will collectively have a major impact. And yet the EPBC Act is meant to deal not with local impacts but with matters of national significance. Green groups have been calling on the government to use the EPBC Act to prohibit or modify projects – such as coal-fired power stations – that have relatively large greenhouse gas emissions. In my opinion, the EPBC Act is ineffective for this: you need national policies that cover energy, transport, etc, not tinkering with projects one by one.

(Economic instruments are perfect for addressing cumulative impacts: this is one of their major advantages).

Tomorrow I'll talk about how imposing conditions under the EPBC Act allows for win-win outcomes and some lessons for us from this debacle. I'll also point out how the Minister selectively quoted from the Report he relied on to imply that the Report said almost the opposite of what it actually said.

* Page 30 of the orange-bellied parrot chapter of the report (PDF here) sets out the most likely survivorship rate of the population at Bald Hills: 0.9999392. I have used the calculations set out on pages 32 and 33 to arrive at a figure of 0.00912 parrot mortalities per year, which equals one every 109.6 years.