Australia’s national environment law is under review, an exercise the government has said is aimed at cutting “green tape”.
Scott Morrison and the environment minister, Sussan Ley, announced the review of the Environment Protection and Biodiversity Conservation (EPBC) Act last month. It is a statutory review of the act that occurs every 10 years.
Tosupport their case for reform, Morrison and Ley have said approvals of major projects are taking an average of three and a half years. But do their claims stack up? What is the reason for the delays? And how does the time taken to approve developments compare with the time taken to develop plans to protect species and habitats under the act?
How long are approvals taking under the EPBC Act?
The important word in Morrison and Ley’s statements is the word “major”.
The figure of three and a half years is not based on an analysis of all projects assessed under national environment law. It’s based on a portion of them. Less than half, in fact.
Under the EPBC Act there are different assessment types, depending on the complexity of projects. The environment department told Guardian Australia it had reached the figure by examining four assessment types that “tend to be” those used for major projects – such as an extension to the Brockman 2 iron ore project in WA, or Kentbruck’s green power hub in Victoria. The department wouldn’t supply the documents containing its analysis, but said it examined 365 projects between July 2014 and June 2019.
But the projects used in the analysis that gave the three-and-a-half year figure account for just 42% of all assessments under the act.
The average time from referral to the department until approval for the remaining 58% of projects – for example residential developments or road upgrades – was 1.9 years.
James Trezise, a policy analyst at the Australian Conservation Foundation, says: “Major projects make up the minority of assessments under the EPBC Act. Most approvals are completed through low complexity assessments that are completed far more quickly than the government acknowledges.”
Delays in EPBC decisions have increased
Another point not made by Morrison or Ley is that delays in decisions under national environment law have increased since the Coalition came to power.
The environment and energy department’s annual report says there were 2,161 decisions made under the EPBC Act in 2018-19. Of those, 861 were late.
The number of late decisions has risen every year since 2014-15, when fewer than 500 were late from a total of more than 2,500.
In its annual report, the department says delays typically occur due to high workloads for department staff or because the department is waiting for more information from development proponents to conduct environmental assessments.
The budget for the divisions of the department responsible for these assessments has fallen in the past five years from $63m in 2014-15 to $56.4m in 2018-19.
Tim Beshara, the federal policy director of the Wilderness Society, says the department’s own data shows an increasing proportion of decisions are not being made within statutory timeframes, but “what the department don’t publish is which projects are delayed by poorly prepared applications versus which are delayed due to an under-resourced department”.
“And while we have some idea about how fast these approvals are made, we have no objective assessment of whether the decisions made are actually the right decisions. The primary question about approvals should be ‘are good decisions being made?’, not ‘are quick decisions being made?’. And we have no oversight of this question from the courts or from anywhere else.”
The EPBC Act isn’t all about development approvals. How long are other processes taking?
The primary purpose of the EPBC Act is environmental protection and the conservation of Australia’s flora and fauna.
If we compare the time taken for project approvals to some of the processes for Australian threatened species, developers are not faring so badly.
Threatened species and ecological communities – groups of animals and plants that are protected as a single habitat – are listed under environment law when they are in danger of extinction and need protection.
Species must first be nominated for a potential listing. They must then be selected for inclusion on the finalised priority assessment list (FPAL). The independent threatened species scientific committee then assesses whether a species qualifies for listing as vulnerable, endangered or critically endangered and makes a recommendation to the environment minister.
The environment department told Guardian Australia the average time from when a species makes it on to the FPAL to when it is listed under national environment laws is 1.3 years. For ecological communities they say it is 2.6 years.
But this analysis excludes the period of seven months between nomination and selection for listing on the FPAL.
The department also used a longer 12-year time frame – from 2007 to 2019 – to calculate these averages rather than the five-year time frame it applied to its analysis of major development approvals.
This distinction matters, to make a fair comparison and also because in recent years the process of listing species and ecological communities has slowed. The environment department’s database shows assessment timeframes of three years are being set for many species.
Five ecological communities have been listed under the EPBC Act in 2019. Of those, two took five years and nine months to be listed, one took three years and 11 months, another two years and nine months. Only one, at one year and 11 months, came in under the 2.6 year average timeframe given by the department.
Evan Quartermain is the head of programs for Humane Society International in Australia, which is the organisation behind 40% of the threatened habitats (ecological communities) listed nationally. He says the time taken to recognise their status has “slowed unacceptably”.
“The last five habitats listed that we nominated took an average of four years and nine months to assess, but 10 years ago this timeframe was just one year and eight months,” he says.
“We’ve gone from processing lots of threatened matters in a reasonable timeframe to just a few at a snail’s pace, and the main reason is departmental capacity being slashed.”
What happens after a species is listed?
The process doesn’t end there for threatened species and ecological communities. Once they are listed, it’s up to the minister to decide if a species requires a recovery plan, which is a document that outlines what needs to be done to prevent extinction.
As reported previously by Guardian Australia, most threatened species and habitats are no longer given recovery plans. Instead, a weaker document known as a conservation advice is prepared, usually in the period when the species is being listed.
The department’s 2018-19 annual report shows that of 1,972 listed species and habitats, just 747 have recovery plans. A further 172 require recovery plans that have not been developed.
The department says it does not track the average time taken for development of recovery plans, because most are “prepared by state and territory governments” and then adopted federally under the EPBC Act.
But the annual report again gives some insight. It says that in 2018-19 just five recovery plans were adopted and “none were completed within statutory time frames” – three years, followed by a three-year extension if necessary.
In 2017-18, four recovery plans were adopted and again none were completed within the statutory time frames.
Trezise says: “Since the Coalition has taken office in 2013 it has taken an average of seven years to complete a national recovery plan, which is in breach of the statutory deadlines under national environmental law and partly explains the perilous state of Australia’s biodiversity.
“The Morrison government should probably focus on the fact that it has gutted the environment department to the point where the most recent recovery plan to be released took 10 years to complete.”
What about legal challenges to projects approved under the act?
In an opinion piece this month, Ley said: “In the past four years, 1,401 days have been spent on court cases over applications, including before the federal court and even the high court”.
Again, the government has not made public the analysis it used to reach this figure.
But the suggestion that legal challenges are a major burden on the system of environmental assessments is overblown.
The department’s annual report lists only six legal challenges against the 2,161 decisions in that year.