One Stop Shop
The federal government champions a One Stop Shop for environmental approvals for the mining industry. The purpose of the One Stop Shop policy is to slash 'green tape' to speed up mining approval processes. The pay-off is said to be an increase in jobs and investment, but at what cost?
The green safety net of environmental law doesn't just protect our natural environment, although careful stewardship of the environment for current and future generations is an important outcome.
Environmental laws and regulations also protect the safety, health and amenity of the people who live and work in rural and urban environments against potentially harmful and damaging industry practices.
Environmental protections have been under sustained attack by business lobbyists seeking to undermine and whittle away controls that have been established in law over many years. Industry lobbyists have successfully re-cast environmental laws and regulations as an onerous burden on business. "Green tape" has become the catch-cry for unnecessary regulation.
Australia's national environment law is the Environment Protection and Biodiversity Conservation Act 1999 (EPBC Act). The Act was amended in June 2013 to include Australia's water resources as a matter of national environmental significance in relation to large coal mining and CSG developments. The amendment is known as the water trigger.
It's called the water trigger because if CSG or conventional mining developments are likely to have a significant impact on a water resource, the amendment to the EPBC Act triggers the requirement for the projects to undergo federal assessment.
In 2014 the water trigger was included in the government's creation of a One Stop Shop for environmental approvals, by virtue of 'approval bilaterals' - which are essentially agreements between the federal government and state and territory governments that state and territory government decisions in relation to developments within their state or territory will be accredited by the federal government as having satisfied any approval requirements under the EPBC Act.
Undeniably, the purpose of the EPBC Act is not to provide quicker, cheaper approval processes for the mining industry or more certainty for investors. Notwithstanding, this is how the Department for the Environment's water trigger Fact Sheet explains the benefit of reducing commonwealth oversight:
Providing a single approval process for projects involving the water trigger will reduce the regulatory burden on business while ensuring that high environmental standards are maintained. This will provide more certainty for investors with a simpler, streamlined regulatory system.
Not For Shale Gas
Illogically, the water trigger doesn't apply to shale gas developments. Shale gas wells are always fracked, whereas stimulation of coal seam gas doesn't always involve fracking. Fracking for shale gas involves far greater depths, far higher pressures, far more chemicals and far higher water usage than CSG, so the risks are possibly worse.
The ABC Rural news article Could shale gas pose a greater threat to water than CSG reports on the failure to include shale and tight gas alongside CSG developments in the EPBC Act. A spokesperson for the Conservation Council of Western Australia observes:
The EPBC Act is quite specific about reasons the federal government can intervene and it would be much more reassuring for local people to know that if their water is threatened and the state government isn't interested in providing any oversight, then the federal government will be there for them.
The same can be said more generally of Australia's appetite for a One Stop Shop for environmental approvals. How much more reassuring it would be for third party water users – farmers, commercial fishers, tourism operators and recreational users - to know that if the health or availability of their water is threatened by a proposed coal mine or gas drilling operation, the Commonwealth government has the legal means to intervene and can provide impartial oversight for them.
The government's most recent anti-environmental stance has characterised the use of environmental law to protect farming and grazing land from environmentally damaging mining projects as Lawfare.
If mining companies are free to use their financial clout to both lobby the government and challenge unfavourable decisions in court, while the government itself has a track record of significant bias towards industry, shouldn't the community also have the right to at least challenge decisions that clearly breach the law?
The Attorney General's media release indicates the government intends to change the law to prevent almost anyone in the community from taking legal action against mining developments on environmental grounds. If passed, the changes to the Environment Protection and Biodiversity Conservation Act 1999 (EPBC Act) will, in most circumstances, prevent ordinary people from challenging major mining projects under Federal law.
You can track the proposed changes to the EPBC Act and the progress of the Bill through the Parliament here.
Instead of striking a fair balance, the government's attacks on environmental law, taken together with Tasmania's new anti-protest laws, seem to be actively displacing the public interest in favour of mining and business interests.