Guardian Australia analysis shows figures for mining projects are skewed even more starkly, as critics of environmental laws renew calls for reform
If the Indian mining company Adani is concerned that its beleaguered Carmichael mine will be halted by the government, it should take comfort in the numbers – just 2.2% of projects that require federal environmental approval have ever been knocked back.
A Guardian Australia analysis of assessments made under the federal Environment Protection and Biodiversity Conservation (EPBC) Act since its inception in 2000 shows that 96.2% of projects – which include mining, ports and other infrastructure – have been given the green light, with conditions.
A further 1.6% of projects have been approved without conditions, and just 2.2% have been rejected, either at the approval stage or before. This means that only 18 developments have been vetoed, compared with 806 that have been approved.
The figures are made more stark when it comes to decisions involving the resources industry, with just three projects out of 276 having been turned down.
With a federal court case brought by a small community group exposing flaws in the approval of the Carmichael mine – temporarily halted as it is reassessed for its impact upon a skink and a snake – critics of Australia’s national environmental protections are renewing their calls for reform.
“Fundamentally, the laws aren’t set up to protect the environment, they are set up to facilitate development,” says the Greens senator Larissa Waters, a former environmental lawyer. “We need a new generation of environmental protection laws.
“The proponents know that there’s a culture of approving everything. I’d like to see an environment minister actually say no to something and I’d love to see a new system that would actually protect the environment and not just manage its decline.”
The EPBC Act, the centrepiece of national environmental protection, is designed to sit above state and territory assessments to scrutinise the few projects deemed to potentially impact matters of “national environmental significance”. These include Australia’s more than 1,700 threatened species, as well as world heritage sites such as the Great Barrier Reef.
The process involves developers submitting environmental impact statements, written by consultants paid for by proponents, for assessment. The Department of the Environment then dissects these reports.
“A lot of it comes down to the ethics of the consultant,” says a former environment department staffer who asked not to be named.
“Some behave more ethically than others, who are put under pressure to tell a story that the proponents want to tell. Department people are generally junior public servants who sit in Canberra and never go to these places they are assessing. They can have the wool pulled over their eyes.”
Critics have argued for a merit-based system, including an independent body to examine the claims of proponents on environmental impacts. But others insist the EPBC Act, introduced by John Howard’s government, is robust legislation that can either be a heavy stick or a feather duster, depending on its application.
The act compels the environment minister, now Greg Hunt, to “provide for the protection of the environment” – a broad remit, open to interpretation. The impact of climate change on the Great Barrier Reef or Kakadu, for example, has not been deemed significant enough to stymie any mining proposal.
In 2009 an expert review of the EPBC Act recommended, among other things, a “greenhouse trigger”, meaning carbon-heavy projects would need federal oversight and an independent commission to review decisions. These recommendations have never been implemented.
The executive director of Environment Defenders Office NSW, Jeff Smith, said such improvements would help the government better deal with sprawling environmental issues such as climate change.
“More often the importance of the EPBC Act is in placing rigorous approval conditions on the proposal,” he said. “But the few occasions where the federal minister has rejected a project affirms the important role of the EPBC Act in safeguarding our national environment. “
Chris McGrath, an environmental lawyer and academic at the University of Queensland, says although there is a lot of interest in rewriting the legislation, the act itself is “a skeleton with good bones” .
“It covers a wide range of issues and can be applied to areas such as agriculture and climate change, but it’s often not implemented. The act isn’t a panacea for Australia’s environmental problems but it has made some important contributions. If you took it away, things would definitely be worse. It just needs a mind and a body with the bones to make sure it takes action.”
McGrath won a court case in 2000 over the protection of flying foxes using the EPBC Act. Other times it has been wielded include when Hunt ruled out safari-style hunting of crocodiles in the Northern Territory and when the former Labor environment minister Tony Burke barred the grazing of cattle in Victoria’s highlands.
Of the projects he has approved – such as the Carmichael mine and the Shenhua mine on the Liverpool plains of New South Wales – Hunt has pointed to a raft of “strict conditions” such as the monitoring of water resources and the purchase of new habitats for displaced species, although critics contend such stipulations are rarely enforced.
Hunt has stressed he is not afraid of turning down environmentally damaging projects and instead rails against the slowness of the process itself, claiming that he’s made decisions on “a trillion dollars’ worth of resource and backlogged decisions that were just in the ‘too hard’ baskets of the previous government”.
Businesses have also vented their frustration at the sluggishness of approval times, with Adani now entering its sixth year to find out if it can build the huge $16bn Carmichael mine due to a “technical” error that meant Hunt had not assessed information on the yakka skink and ornamental snake.
Guardian Australia’s analysis of EPBC approval times shows the time taken for a decision has increased over time but it still varies significantly from year to year.
The EPBC Act came into force on 16 July 2000. Approval times increased after the first few years of operation, with a high point in 2007, followed by a trough, and then increasing again to the highest mean approval time of 794 days in 2013.
Figures for 2015 are incomplete, but the mean approval time is now 860 days for 32 projects. The trend for resource-related applications is similar, though with greater variability.
Hunt wants to streamline the process by creating a “one-stop shop” which will mean the states and territories assess, and ultimately approve, projects. The idea, aimed at reducing duplication and speeding up the process, is opposed by Labor, the Greens and environmental groups.
But business groups see merit in the idea, with a joint submission by the Business Council of Australia and Minerals Council of Australia stating: “In recent years, the required scope of environmental impact statements have increased dramatically, driven by regulators seeking more information about more matters.
“This has resulted in significant costs for industry and the production of enormous EIS reports, many thousands of pages long.”
The business groups cite the example of Santos needing to gather 13,500 pages of information for a gas project which took two years to write, weighed 65kg and “a wheelbarrow was needed to move it”.
Reducing environmental assessment times by one year would add “$160 bn to national output by 2025”, the business groups claim, adding that Australia’s current regime is “uncompetitive”.
But while the length of assessments has grown in recent years, the respected Behre Dolbear rankings place Australia second in the world, behind only Canada, in terms of the fewest delays caused to mining projects due to government regulation or environmental activism.
“The one-stop shop proposal would only water down an already weak system, it would be a messy backwards step,” McGrath says.
“Ultimately, if you were to bring in one change to the system, you’d bring in reality rather than a minister’s opinion. A minister’s decision will be political because they are politicians. Greg Hunt couldn’t refuse a coalmine because if he did, the very next day he wouldn’t be a cabinet minister anymore.
“The major problem is implementation. The laws can look great on paper, but they are often interpreted in an ideological way.”
This analysis initially considered EPBC applications that had made it to the approval stage. A further nine projects were ruled as “clearly unacceptable” before reaching this stage, though two of these were then resubmitted with modifications and approved. Our analysis has been updated to include these projects.
Guardian Australia scraped every listed EPBC notice where approval was required for the proposed project (a determination can also be made that approval is not required for an application, these were not counted). We then grouped the results by outcome, and also determined the mean time between the date the application was listed as being received and the date the decision was made. Resource-related applications were determined by the presence of keywords within the application title.