To many observers who increasingly despair at the limp efforts by governments and corporations to address the climate emergency, environmental law can seem like one of the most viable strategies to meaningfully and swiftly address the crisis.
Environmental law, given that it’s concerned with the protection of environmental ‘public goods’ or ‘commons’, such as the atmosphere, biological diversity and water systems, as well as social or collective human values dependent on those commons, can be one of our best strategies to promote the right to a safe and healthy environment – but is it up to the challenge?
The stakes could not be higher. Humanity is transgressing key ‘planetary boundaries’ intrinsic to stability of Earth systems consistent with human existence. In a landmark 2009 paper scientists at the Stockholm Resilience Centre associated the biogeophysical limits of nine planetary boundaries with a ‘safe operating space for humanity’. These limits include human pressures ranging from climate change to biodiversity loss to pollution to freshwater extraction.
Transgressing these limits risks major degradation of natural systems including non-linear (catastrophic) change or ‘tipping points’. Three ‘boundaries’ had been crossed by 2009 – being climate change, nitrogen cycle interference, and biodiversity loss. By 2022 that had risen to six – out of nine – ‘boundaries’ the Stockholm scientists had examined. ‘Novel entities’ (such as plastics pollution), land use change (such as deforestation), freshwater availability for natural processes were now added to the list.
Environmental law…can be one of our best strategies to promote the right to a safe and healthy environment – but is it up to the challenge?
This science evidencing transgression of humanity’s ‘safe operating space’ is reflected in worrying State of the Environment reports in Australia and in volumes of scientific literature.
Containment and retreat of human environmental pressures below threshold values for planetary boundaries must be a focus of any ‘right to a safe and healthy environment’.
But current environmental laws are deeply problematic in terms of their capacity and likelihood to promote these ‘safe and healthy environments’.
This proposition was emphatically put in the 2020 Samuels Review into the Environment Protection and Biodiversity Conservation Act (EPBC Act), which found: The EPBC Act is ineffective. It does not enable the Commonwealth to effectively protect environmental matters that are important for the nation. It is not fit to address current or future environmental challenges.
This finding correlates to evidence of Australia’s declining environmental performance.
Other environmental laws, such as Victoria’s Flora and Fauna Guarantee Act, have confronted like criticisms.
Legal duties v legal rights
While design of Australian environmental laws is far from ideal, key shortcomings in the capacity of Australian environmental laws to drive safe and healthy environments lie as much, if not more, in the implementation of those laws. Any attempt to grapple with legal means promoting a ‘safe and healthy environment’ – including a human rights model – must contend with environmental administration and institutions.
Any attempt to grapple with legal means promoting a ‘safe and healthy environment’ – including a human rights model – must contend with environmental administration and institutions.
In Australia, this implementation of environmental laws focuses on legal duties rather than stand-alone legal rights. Rights-based approaches – whether in the form of human rights or rights for nature – are rare in Australia. Australian laws typically seek to protect nature through statutory duties on government, corporations or individuals intended to protect the environment but permitting or enabling environmental harm or destruction. These laws are usually accompanied by detailed schemes (such as plans) regulating tensions between protection and destruction of the environment.
While design of Australian environmental laws is far from ideal, key shortcomings in the capacity of Australian environmental laws to drive safe and healthy environments lie as much, if not more, in the implementation of those laws.
Enforceable rights may then be available to individuals or community groups (or government) to use environmental laws to halt or remedy breach of those duties through the courts.
Environmental duties in Australia may be, on occasion, innovative, powerful or broad-reaching but their implementation is typically problematic.
Assessing Australia’s key piece of environmental legislation
Take the EPBC Act – the Australian Government’s key piece of environmental legislation which commenced in July 2000. For all the criticism it has attracted, the EPBC Act contains impressive objects (such as promotion of ecologically sustainable development (ESD)), within the ambit of ‘nationally significant’ matters, not least reflecting incorporation of international environmental obligations into Australian law and, within those terms, detailed regulatory architecture.
As for biodiversity and wetland conservation, on its face it contributes to promotion of ‘healthy’ environments. As to ‘safe’ environments, it establishes protections from nuclear actions. True, the issue of a ‘safe’ climate is glaringly absent. My colleagues at EJA have recently launched a major legal campaign, based on extensive official environmental documentation, that climate considerations are nonetheless integral to regulatory decision-making under the EPBC Act.
Implementation and enforcement is where it counts
Whatever the virtues and limitations of the EPBC Act in contributing to a ‘safe and healthy environment’ we are confronted by wide-scale disregard for its implementation and enforcement. For example, in 2019, ANAO found the Federal Environment Department had no effective administration of the Act.
That proposition was reinforced by contemporaneous scientific research showing 7.7m ha of threatened species habitat had been cleared in the first 17 years of the Act, of which more than 90% was not referred under the Act. Overwhelmingly, when referrals do occur, clearing is conditionally approved. Compliance and enforcement is also the subject of recurrent criticisms of absent or under-enforcement of the Act, the Samuels Review being the most recent example.
The long-documented saga of collapsing administration of the EPBC Act is one of the more glaring examples of crisis in the environmental rule of law.
But it’s not the most spectacular. Surely, that prize goes to implementation of the Commonwealth Water Act of 2007. The express intention of this law is to protect and restore the water ecosystems of the Murray Darling Basin (MDB) to ecological health through reducing water extracted for human (mainly agricultural) uses. On one reading, this assumes we have the right to a healthy MDB. The centre piece of this task is the Basin Plan 2012.
Bret Walker SC, as Commissioner reporting to the SA Government on the Royal Commission into the MDB, referred to the ‘deserved distinction’ of passage of the Water Act as world-leading. He affirmed its operation primarily as an environmental law. He then directed hundreds of pages of scathing analysis to the systematic undermining of the Act’s implementation and administration. The cornerstone of the Commissioner’s report was his finding that the administrative starting point of the entire exercise – the making of the Basin Plan – was itself unlawful.
Victoria has increasingly adopted a broad duties-based approach to environmental management. The reformed Flora and Fauna Guarantee Act, notionally Victoria’s main biodiversity law, now includes a requirement on all government agencies to give ‘proper consideration’ to biodiversity conservation values and objectives in performance of functions and exercise of powers.
The ‘proper consideration’ test is derived from human rights legislation. It could be said to be the flip-side of a right to a safe and healthy environment, so far as biodiversity conservation is concerned. Admirable on paper, observance of the duty across government is at best uncertain. As far as we can tell, this duty remains idle and unenforced across government.
Since 2020 under reformed pollution and waste laws, a ‘general environmental duty’ to minimize risk of harm to the environment and human health from pollution and waste applies in Victoria. That duty applies very broadly: to any person engaged in activities where those risks arise. It is intended to drive changes in norms and behaviors across industries. Continuing pervasive levels of pollution and waste risk, such as in diffuse source risks like plastics or pesticides, pose problems of reticence, uncertainty or sheer ignorance in implementation of this legal norm.
The right to a safe and healthy environment could be valuable thread through environmental administration, supplementing or guiding existing duties. But its effectiveness depends heavily on practical questions around enforcement, administration and institutions.
Such environmental rights might be said to be the visible tip of the iceberg, implementation and practical effects being the iceberg itself. What we don’t want is a situation where the law is all tip and no iceberg.