Goals, Objects and Principles for Environmental Law

Draft for consultation

AUSTRALIAN PANEL OF EXPERTS IN ENVIRONMENTAL LAW

TECHNICAL DISCUSSION PAPER (STREAM 1):

GOALS, OBJECTS AND PRINCIPLES FOR ENVIRONMENTAL LAW

“The problem is that we still lack the culture needed to confront this crisis. We lack leadership capable of striking out on new paths and meeting the needs of the present with concern for all and without prejudice towards coming generations. The establishment of a legal framework which can set clear boundaries and ensure the protection of ecosystems has become indispensable; otherwise, the new power structures based on the techno-economic paradigm may overwhelm not only our politics but also freedom and justice.”

Encyclical letter, LAUDATO SI’, of the Holy Father Francis, on Care for our Common home (June 2015)

2nd draft (30 July 2015)

This work is licensed under the Creative Commons Attribution, Non Commercial – No Derivs 3.0 Australia License.

The details of this licence are available on the Creative Commons website:

Contents

Executive Summary

Section 1 – Introduction and background

A long-term vision for Australia: The Next Generation of Environmental Law

The Australian Panel of Experts in Environmental Law (APEEL)

This Discussion Paper and Your Role in the Conversation

Section 2 – The Framework for Environmental Law

2.1 Introduction – developing an “anatomy” of environmental law

2.2 Definitions

2.3 Goals for environmental law

2.4 Objectives of Environmental Law

2.5 Principles of environmental law

(i)Design-based principles

(ii)Rules-based principles

(iii)Principles for allocating roles and responsibilities

Section 3 – Analysis of the Current Situation

3.1 Some lessons from other countries

3.2 A goal for environmental law

3.3 Objectives of environmental law

3.4 Principles of environmental law

Section 4 – Charting the Way Forward

4.1 Guiding questions

4.2 Societal goals

4.3 Objectives

4.4 Principles

4.5 Some preliminary recommendations

(i) Duty of environmental care

(ii) Public environmental trust

(iii) Continuous environmental improvement

Environmental restoration:

Environmental innovation

(iv) Precaution

(v) Assess progress

(vi) Sharing environmental governance

(vii) Environmental human rights

Section 1 – Introduction and background

A long-term vision for Australia: The next generation of environmental law

Australia is one of the most ancient, naturally beautiful, and biodiverse places on Earth. We have seventeen World Heritage properties, sixty-five Ramsar wetlands and more than one million species of plants and animals, many of which are found nowhere else on earth.[1] We are rich in some natural resources, whilst others such as water are scarce. A robust and world-leading system of environmental management is therefore vital. At the heart of that system, we need laws enabling the preservation, restoration and management of our common heritage. There is a limit to what laws alone can achieve, but clear and effective laws are a crucial component for ensuring Australia sustains a healthy, resilient and productive environment.

For over forty years, national environmental law has steadily evolved in Australia. The current legal framework has in part emerged incrementally in response to Australian issues and developments – for instance, campaigns against the mining of Fraser Island or the damming of the Franklin River. In part it has emerged in response to the development of international environmental law and principles. It has often involved a cooperative approach between Federal and State and Territory and also local Governments. There is no single source of environmental law – a body of laws, regulations, codes and policies (overlaid by international declarations) has evolved in an attempt to address complex societal, conservation and resource use issues. Just at the national level there are around 90 different laws dealing with environmental issues, and countless more in each state and territory. An array of institutions, agencies and departments exist to administer and implement the various laws. And a diverse range of different stakeholders and third parties interact with the current laws and institutions with varying degrees of influence.

Despite the number of laws, instruments, policies, agencies, departments and engaged stakeholders; our key environmental indicators continue to decline.[2] We are faced with overwhelming evidence of environmental deterioration on a scale that has prompted reference to the current circumstances as the “Anthropocene” (or human-induced) period of mass extinctions and rapid ecological changes.[3]Our environmental laws may look good on paper, but are not being effectively implemented to meet current goals and objectives. Environmental legal principles exist, but have been under-utilised, malleable in their interpretation, and often overridden by other considerations.

We now face unprecedented environmental challenges. The sheer complexities of many ecological problems, especially those of a cumulative and incremental nature that gestate over long periods, are very difficult targets of legal regulation. Many environmental issues are transboundary and must be considered in the context of broader resilience, functionality and global tipping points.[4] Modern environmental law enjoyed considerable early success tackling the ‘low hanging fruit’, such as reducing point source emissions from large factories, but there are few such easy targets left. The subsequent generation of ecological problems that defy those early legal solutions include invasive species, marine plastic debris, looming resource scarcities, greenhouse gas emissions, and climate change impacts more broadly.

The value of environmental laws has been questioned in recent times – for example, as to whether the laws unduly infringe upon individual property rights,[5] slow developments or represent an unreasonable regulatory burden.[6] Such criticisms are not evidence-based[7] and fail to recognise the inherent public purpose of environmental laws. Given the increasingly urgent need to systematically, effectively and creatively address the new challenges, now is the time to consider the direction of and vision for strengthenednational environmental laws for the decades ahead. The APEEL project will set out a vision for a new generation of effective environmental laws to ensure we have a healthy functioning and resilient environment to benefit to all Australians, and explore what those laws might look like. This first paper considers the foundations needed for the task.

The Australian Panel of Experts in Environmental Law (APEEL)

The Australian Panel of Experts in Environmental Law is an initiative of the Places You Love Alliance,[8] bringing together renowned thinkers and practitioners in environmental law. It is an independent body of academics, lawyers and former judges who have come together to propose ideas for the unprecedented environmental challenges we face and to developrecommendations forrenewalof Australia’s environmentlaws. The Panel will advise on new legislative solutions that ensure a fair and efficient protection and management of Australia’s environment, as the foundation for sustainable jobs and a prosperous society.Through a series of discussion papers the Panel seek your input, ideas and experiences about how environmental laws and institutions work or could be improved. These discussion papers will focus on the following themes:

• The key goals, objectives and principles guiding environmental law (Stream 1)
• National environmental laws in the federal system of government (Stream 2)
• Environmental laws including forbiodiversity, land and water (Stream 3)
• Other areas of law that can enable strong environmental outcomes, such as corporations, tax law, climate change and energy law (Stream 4)
• Environmental democracy and public participation in environmental management (Stream 5)

This Discussion Paper and Your Role in the Conversation

Through the series of discussion papers and events the panel invites you, your community, or your organisation to participate in the conversation about what our national environmental laws should look like.

The panelnow seeks your feedback on this first discussion paper on goals, objects and principles. Your feedback on what key foundational concepts should underpin the next generation of environmental laws will help the panel to finalise core concepts and then finalise recommendations as to whether each concept is best reflected as a goal, objective or principle. We look forward to your engagement on specific reform options as the APEEL journey progresses.

Key questions on goals, objectives and principles for the next generation of environmental law
-What role, if any, has environmental law played in protecting a place or element of the environment that you love?
-What are the biggest challenges that the next generation of environmental laws must address?
-Do you think there are limits on what environmental law can achieve?
-What are the strengths and limits of existing goals, objects and principles in the experience of your organisation or in relation to an environmental issue you care about?
-What should ‘sustainability’ or ‘sustainable development’ mean?
-What other goals should environmental law advance, and must these goals be determined by society in advance or does law have a role in shaping social values and goals?
-What additional objectives and principles should be introduced to achieve the goals of the next generation of environmental laws?

Section 2 – The Framework for Environmental Law

This section identifies what we mean by ‘environmental law’ and how the panel is approaching the challenge of developing a new generation of laws. We explore what is meant by goals, objectivesand principlesof environmental law.

2.1 Introduction – developing an “anatomy” of environmental law

What is environmental law and what is the role of environmental law?

The Panel has taken up the challenging task of presenting “proposals for the next generation of environmental laws in Australia, focussing particularly on the Federal level“.[9]In its initial discussions concerning how best to approach this task, the Panel recognised that it would be necessary not only to build on existing legal approaches but also to think beyond them in order to develop a visionary blueprint for the future.

Law plays an indispensable role in the protection and management of the natural environment, and law reform to recognise and enhance this role will depend on strong public support.We see environmental law as servingfour main purposes:

(i)It contributes to human prosperity, by ensuring that natural resources such as forests, soil, water and wildlife are used sustainably and thereby can continue to support economic development and social wellbeing indefinitely. All Australians depend upon and benefit from clean air, clean water, healthy functioning ecosystems and resilient landscapes.

(ii)Secondly, environmental law can safeguard nature’s intrinsic values, independent of their utility to humankind, such as byprotecting biodiversity and maintainingnature’s life cycles and evolutionary processes.

(iii)Further,itprotects important attributes of our cultural heritage and national character. Australia’s identity is intimately connected to the country’s natural environment, as symbolised by the fauna depicted on the Commonwealth coat of arms, and for Aboriginal Australians, the natural environment is integral to their cultural identity. Environmental law thus has a crucial role in protecting the wildlife and iconic landscapes that shape our cultural heritage.

(iv)Finally, ideally environmental laws can allow individuals and communities to be involved in decisions that affect their environment.

We should be aware at the outset that the notion of “environmental law” defies any simple definition, for several reasons.[10] Environmental issues are both physically and socially complex, and therefore it may sometimes be unclear when an ‘environmental issue’ comeswithin the purview of this area of law. Also, the 'law' that governs environmental problems comprises a diverse assortment of laws, both domestically and internationally, many of which ostensibly may not seem to have anything to do with the environment, such as taxation law or corporate law. The Panel also recognises that environmental law in Australia has been built on legal traditions and precedents that were and perhaps remain much less sympathetic to environmental stewardship. For instance, the common law rules relating to property law and tort law tend to privilege the rights of landholders to use and exploit their property as they wish.[11]

How is the panel approaching the task?

Contemporary analyses of environmental law generally focus on the examination of authorities and tools – that is, the structural arrangements for administration and enforcement of environmental legislation and the mechanisms (regulatory, market-based and voluntary) created by such legislation to deliver environmental outcomes. The Panel noted that this type of analysis frequently fails to recognise deeper problems with the current nature of environmental law, in particular that it is generally fragmented and uncoordinated and that its implementation is often far from effective. As a result, it has decided to approach its task by establishing five work streams that will enable a more holistic approach to be adopted.

The first Stream established by the Panel (which is the source of this discussion paper) was tasked to identify and describe the core principles that underpin environmental law – an exercise that has rarely been attempted in the literature of environmental law (Stream 1).[12] A second stream is to address the appropriate division of roles and responsibilities within a multi-layered system of government (as in the case of Australia, ourfederal constitutional system) (Stream 2). Another stream is to consider how “non-environmental” legislation can contribute to effective protection of the environment (e.g., climate and energy laws; and commercial, financial andtaxation laws) (Stream 4). A further stream is to examine two related matters: how the concept of environmental democracy is reflected in environmental law and the essential requirements for the effective implementation of environmental law (Stream 5). Finally, just one of the five streams created by the Panel has been directed to conduct an examination of environmental laws proper, although it is envisaged that this work will be pursued through several sub-streams (Stream 3). It is anticipated that the work in this stream also will be guided and informed considerably by the outcomes generated by the principles, governance and democracy streams.

The purpose of this first stream was identified as a result of the Panel recognising that there might be a number of “core” principles that are pertinent in one way or another to environmental law and which could therefore provide a sound basis for the design ofthe next generationof environmentallaws. Initially, it was also recognised that the principles that had been identified as most important might be categorised more broadly, according to their function or purpose, as follows:

-Principles setting out criteria for effective environmental regulation (e.g. regarding ‘smart regulation’[13]);

-Principles relating to the roles and responsibilities of actors (e.g., the subsidiarity principle and the concept of shared governance); and

-Transformational or transcending principles that shape the desired orientation environmental law (e.g., the concept of ecologically sustainable development (ESD).

In addition, the Panel identified several fundamental questions that it considered should underpin all of its work, and in particular the work of this first stream, these being:

-What is or should be the principal goals or objectives of environmental law?;

-What are the capacities – and limitations – of environmental law with respect to the achievement of the agreed goals or objectives?; and

-Is the reform of environmental law to be guided by existing social values or can the law itself facilitate changes in social values that are more supportive of environmental protection and stewardship?

Why ask these particular questions?

We are faced with overwhelming evidence of environmental deterioration on a scale that has prompted reference to the current circumstances as the “Anthropocene” (or human-induced) period of mass extinctionsand rapid ecological changes.[14]Recent scientific research on global ecological trends appears to vindicate many of the dire predictions of the Club of Rome and other commentators.[15]Australia’s environment has many and generally worsening problems, as documented in successive “State of the Environment” reports commissioned at both federal and state levels.[16] Some of the persistent problems include major declines in native wildlife, degradation of productive rural land, intensification of development along coastlines and sprawling cities and, among future threats, climate change. These problems are in addition to grave past damage that needs to be repaired, however possible. Australia has the worst rate of mammal extinctions of any country (29 species perishing in two centuries), and has suffered severe deforestation.[17]Scientists have ranked Australia ninth worst in the world for absolute environmental degradation.[18]

What can and should environmental laws do?

While the evolution of environmental legislation in Australia over the past half century has undoubtedly improved the quality of environmental decision-making and reduced what would otherwise have been a much direr situation if left unregulated, the continuing negative trajectory of key ecological indicators suggests that current legal approaches are occasionally winning battles but still losing the war. Important successes such as phasing out ozone depleting chemicals and improving energy efficiency standards may deflect attention away from thecumulative declinein fundamental ecological services and biodiversity. The underlying drivers –primarily population growth, economic development, consumption patterns and technological change – remain largely uninhibited. Such grim environmental conditions necessitate that Australia, as for other countries, start to question and redefine the fundamental goals of human civilisation. There have been attempts to do so, in particular through the adoption of the concept of sustainable development (and the current initiative by the United Nations to develop the Sustainable Development Goals (SDGs) as a successor to the Millennium Development goals (MDGs)).[19]Any attempt to develop a blueprint for the next generation of environmental laws should therefore have as its foundation the endorsement of an appropriate societal goal that informs and drives the design of such laws. This is a normative basis for environmental law that operates at the foundation level and is to be distinguished from principles, which may elaborate or assist to give effect to the societal goal, but cannot of themselves articulate that goal.