Dragging coal through the courts: an alternative emissions-reduction strategy

The bill creating the carbon price has passed through Parliament. However, the campaigning efforts of the environmental lobby will not pause. More than ever, the coal industry is in its sights, with court cases against XStrata in Queensland and HRL in Victoria now underway.

Getting regional Victoria’s Hazelwood power station closed is a potential prize from the cross-party climate deal that gave us the climate price. But it will not realise campaigners’ ultimate goal of a carbon-neutral economy.

Environmentalists know that they have achieved all that they can for the moment through the legislature. For decades, politicians’ attention has been captured by Australia’s most greenhouse intensive industries. Throughout the carbon debates, environmentalists have not been able to avert that attention.

Recommendations were made for legislative reform that would institute a greenhouse gas trigger for environmental assessments under the Environment Protection and Biodiversity Conservation Act, but these have been ignored or rejected. The Gillard government has been convinced by the yet-to-be proven argument that a market mechanism – the emissions trading scheme – will curtail emissions-intensive industrial developments as effectively as scrutinising, evaluating or simply prohibiting them.

The courts are the next stage for the environmentalists’ battle against coal.

Past efforts at halting coal mining activities and power generation activities through the courts have been unsuccessful. Australian courts and tribunals have held that in some circumstances, decision-makers must consider the greenhouse gas emissions from coal-fired power in deciding whether to approve coal mines and power stations.

But these decisions have not stopped projects. They have simply required ministers to explicitly preference the promised economic windfalls from coal mines and power stations over environmental objectives.

Most notably, the Federal Court has twice rejected challenges to New South Wales and Queensland coal mines. The court was not satisfied that there is a sufficient link between localised burning of coal and climate change to prove that carbon emissions could have “significant impacts” on the Australian environment, particularly on ecosystems like wetlands and reefs, which are highly vulnerable to sea level height and temperature change.

Two cases currently before state courts and tribunals take a different legal approach. Environmental groups have joined with sympathetic lawyers to bring suits against coal that will subject the coal projects to merits assessment.

In Queensland, a decision of the Land Court is imminent in the case between Friends of the Earth and Xstrata in relation to the Wandoan coal mine.

This case is not simply a challenge to the environment or planning approval for the project. Rather, the environment group is also seeking to prevent the grant of the mining tenure required by Xstrata. They are arguing that the coal mine, which will be Australia’s largest and will principally service the export market, will indirectly and notably contribute to climate impacts that are “irreversible, of a high impact and widespread”.

Under the relevant law, the Friends of the Earth must convince the court that the adverse impacts of the mine are of such a magnitude to justify its rejection. It is a case that has parallels with the long-fought battle against sand mining on Fraser Island, which started in the Mining Warden’s Court of Queensland in the early 1970s and made its way to the High Court.

In Victoria, a group of environmental objectors, most publicly led by Environment Victoria, are party to a current Victorian Civil and Administrative Tribunal case. It concerns the works approval the Environment Protection Authority gave a combined coal- and gas-fired power plant proposed for Victoria’s Latrobe Valley.

The legal question for the tribunal is whether this project, characterised by the proponent as a clean coal alternative to the status quo, is “best practice” to manage greenhouse gas emissions. Does polluting less than the typical coal-fired power station – but far more than generation from gas or renewables – correspond with best practice standards?

The tribunal’s finding will be significant because it will also inform us whether Victoria’s new Climate Change Act, which must be considered in this case, actually stands for something.

Regardless of the outcomes of these cases, court battles between coal companies and environmentalists will continue. Legal alliances are being formed. Landholders, like those in Bacchus Marsh close to Melbourne, have been emboldened by the coal seam gas outrage initiated by farmers throughout New South Wales and Queensland and appear likely to join the fold.

Proposals to halt new or expanded coal developments will be opposed. Existing facilities, like Delta Electricity’s Lithgow plant – the subject of community-initiated court claims over pollution – will be scrutinised. The battle is important because it might just change public sentiment and government opinion about the future of coal in Australia.


This article was written for and originally published by The Conversation.

Privatising environmental regulation – the Wonthaggi desalination plant and the EPA

Victoria’s Environment Protection Authority (EPA) has barely had a positive word said about it over recent years. Since 2009, particularly following its handling of the landfill gas leak near Cranbourne, it has been criticised by the Victorian Ombudsman, the Auditor-General, and in February 2011 by a consultant commissioned by the agency to review its compliance and enforcement regime. The EPA is nevertheless upbeat about its function, with its Chair commenting: “in the face of criticism over recent years, [the] EPA has committed to re-establishing itself as the State’s environmental regulator”.

Contractual documents relating to the environmental performance of the Wonthaggi desalination plant, however, suggest that the previous Brumby Government was not as confident in the EPA’s ability to monitor the environmental compliance of one of Victoria’s most expensive and controversial projects.

Those documents reveal that the State and the future operators of the desalination plant have negotiated a private, contractual environmental regulatory regime. The regime is similar in structure to the arrangements that the State has with its metropolitan private transport operators. Failure to meet certain standards, in this instance environmental quality standards rather than public transport punctuality targets, is penalised with financial deductions from the monthly operating fee that the State pays for desalinated water.

In some ways this development reflects the current trend towards the privatisation of planning and environmental laws in Victoria. Last week the Minister for Planning was reported to have announced that the Baillieu Government will soon introduce laws that will allow property developers to self-regulate their projects in accordance with a code. This reform suggestion was made concurrently with a proposal that developers also be permitted to perform a role in the amendment of local Council planning schemes.

Under the private, and until recently secret, agreement between the State and the future desalination plant operators, a breach of an EPA operating licence will be subject to a $200,000 fee deduction (rising to $1 million if continuing for 14 days). The deductions are similar in amount to the penalties imposed by the Magistrates Court under the Environment Protection Act 1970 (Vic), but less than the maximum penalties permissible under the Act. For example, the maximum penalty for all but the most severe pollution offences under the Environment Protection Act 1970 (Vic) is $286,680 plus $143,340 for each continuing day (ie rising to a maximum penalty of more than $2.2 million after 14 days).

There is no term in the contract that indicates that this regime replaces or displaces the Environment Protection Act 1970 (Vic). The operator of the desalination plant will still, in theory, be subject to the same environmental laws as everyone else. This is implicit in the contractual term that states that any financial deduction for environmental non-compliance will be offset by any amount of fine or penalty it incurs under the State’s laws.

Further, the language used in the contract does not use the terminology of the Environment Protection Act 1970 (Vic). For instance, the contract refers to notions of ‘environmental harm’ and ‘significant environmental harm’, but these are not standards found in Victoria’s universal environmental criminal law regime. They have been taken from the laws of other States and Territories – including Tasmania, South Australia, Queensland and the Australian Capital Territory.

It is possible, therefore, that breaches of the contract that give rise to financial deductions will not necessarily amount to breaches of Victoria’s environmental laws.

If it proves to be the case that this contract-based environmental law regime is additive to the State’s environmental laws, then it will be an interesting and perhaps innovative evolution in environmental regulation. The concern, however, is that this private regime will not be additive, rather it will in effect replace the State’s universal and transparent criminal environmental law regime for the desalination plant. There is a strong likelihood that the contractual regime will be used in preference to the State’s criminal laws, at least in the first instance, because it will be much easier to administer, will be applied monthly, and it will not threaten ongoing operation of the plant like some of the provisions of the Environment Protection Act 1970 (Vic) allow. Finally, and significantly, this private regime might effectively displace universal criminal laws because the EPA has been so ineffective in enforcing its laws. The contract will give the Victorian Government an opportunity to intervene and penalise the desalination plant operator when the community demands it but when the EPA, as it did with the Shell Refinery in north Geelong, fails to do so.

There are benefits for the operators if this contractual regime becomes the preferred environmental law framework for the desalination plant. There will be no convictions attached to any non-compliance, little or no publication of reports of environmental degradation, no director liabilities for crimes committed, and no need to advertise offences in the paper or support local environmental initiatives (which are currently regularly used sentencing options by the Magistrates Court). There will be no baggage that the operators will be hamstrung by in future. It is also a very clinical and emotionless way to regulate the environment. Simply allow an operator to buy its way out of environmental difficulties.

Of course, irrespective of any arrangement between the previous Government and the future operators of the desalination plant, the EPA will have the power to fine, prosecute and shut down a polluting desalination plant. Whether it uses these powers as a State regular should, or whether persists with its approach of offering warnings and encouragement to industrial polluters, time will tell.

The Port Phillip Channel Deepening Project and ESD

I was recently published in the book Marine Resources Management, edited by Warwick Gullett, Clive Schofield and Joanna Vince. The book is available from LexisNexis Butterworths.

My chapter, ‘The Port Phillip Channel Deepening Project and environmental law: A model for ecologically sustainable development?’, inquires into the ‘sustainability’ of the Port Phillip Channel Deepening Project. I conclude:

Australia has a sustainability agenda. As a nation it wants infrastructure projects to be ecologically sustainable, and it has a national strategy that outlines the expectations and understandings of ecological sustainable development. While there are questions about whether this is a suitable benchmark for assessing controversial and large-scale developments, it is unlikely that the present paradigm will shift anytime soon. Within this strategic setting dredging will continue to be advocated to accommodate the projected increase in global sea trade and will need to be assessed against environmental laws should they apply.

The question posed by this chapter is whether dredging can be consistent with the existing sustainability paradigm. In the Port Phillip Channel Deepening Project, decision-makers and the Port claimed that it could. Although to get to this position the Port and the decision-makers traded-off and managed-away environmental impacts to preserve their desired economic outcomes. Under the policy definition of ecological sustainable development this trading-off and managing-away can only occur if the integrity of the environment is not only maintained but the ecosystem is conserved. This was not the case for the Channel Deepening Project because there was no legal regime that required the protection of the whole environment of the bay. There were no minimal requirements for protection articulated in the laws that could be balanced, let alone not traded-off or managed-away. There were no regulated limits on harm to the environment or impacts on the marine parks, no regulation for undersea disposal of toxic wastes, and no rigorous planning policy that applied to the project. While the environmental management plan was detailed, it remained a plan enforced by the Port, with its primary focus on delivering the project and realising the economic benefits. Although the Port could arguably undertake a balancing of economic, social and environmental issues as they arose, they were not equipped, nor willing, to be the defender of ecological integrity at the expense of economic development. For all the Port’s environmental goodwill, the ‘show had to go on’. The fact that the Victorian Government created a bureaucratic and unlegislated Office for Environmental Monitoring for the project showed the gaps in the regulatory system and the absence of an agency equipped to protect the bay environment

The lesson is not that the Channel Deepening Project or any other dredging proposal should not or cannot occur in an ecologically sustainable way. While this chapter is critical of the way ecological sustainable development is used in practice because it is not always consistent with policy and often prioritises economic benefits over environmental impacts, change is possible and could be straightforward. The challenge is for law-makers to establish a legal regime that sets out the protection requirements for nearshore marine areas and that prevents decision-makers deviating from those conservation requirements even when confronted with opportunities for economic gain.

Plural and hybrid environmental values in the wind energy debate

The hybridity of arguments opposing wind farms – including concerns about landscape and place, protection of birds, the conduct of proponents and suspicion of the technology – are captured in this pamphlet, which was produced without central authorisation from the CPRW (The Campaign for the Protection of Wales) in the early to mid-2000s.

It is the hybridity of arguments and values within the context of wind farm development and policy making in Victoria and United Kingdom that I explore in a recently published article in Environmental Politics. In the article I analyse the dominant discourses evident in wind farm conflicts – about green jobs, climate change, birds and landscape, exploring the complex environmental values that underpin each of the discourses.

Victorian environmental assessment laws failing

Arising from the environmental assessment conference I issued this media release. I commented that:

“Victorian environmental assessment is entirely dependent on guidelines, there is almost nothing in legislation”  … “Because of this, the Minister for Planning can use or ignore the guidelines to suit his needs. Other States also have disappointing laws around environmental assessment, but the fact their laws are detailed puts them one step ahead of Victoria.

“The current assessment approach has failed, the Government said so when it was elected, and the Channel Deepening Project illustrated that. But many of the mistakes that were made in that process haven’t been learnt from and are now being replicated with the North-South Pipeline and Wonthaggi Desalination Plant assessments. The fast-tracking of those projects does not respond to the causes of the delays for the Channel Deepening Project and does not recognise the positives from the process.”

The media release was picked up by The Age.

Victorian environmental assessment laws and the Channel Deepening Project

Here is the paper I presented at the State of Environmental Assessment Conference, Canberra, 23 May 2008. A book with a much longer chapter of my research into the Channel Deepening Project and Victoria’s environmental assessment laws will follow in a few months. For the purpose of the blog I have removed all references. References will be included in the final paper and can be provided on request.

Introduction: a call for reform
Victoria’s environmental assessment process, which is notionally found in the statute books within the Environment Effects Act 1978, but in reality is found on the Minister for Planning’s desk, where it is always available for amendment and manipulation, is in need of reform. Reform is needed so that environmental assessment in Victoria meets its globally understood purposes of transparent, accountable, rigorous, and deliberative assessment of projects.

The most effective way to meet these purposes is to abandon the Environment Effects Act 1978 and incorporate a rigorous assessment within the Planning and Environment Act 1987. This change should be accompanied by greater use and empowerment of Planning Panels and an ongoing commitment to review State strategic policy with consideration for the environment and society.

In making my case for reform, I will report on the flaws of the Channel Deepening Project assessment. I will identify problems with the current process not fixed by the 2005 minor amendments to the Environment Effects Act 1978 and suggest improvements with the interaction between Victorian and Commonwealth assessment.

Channel Deepening Project
The Channel Deepening Project is underway in Port Phillip, the Yarra River, and Port Phillip Heads in Victoria. The proponent of the project, the Port of Melbourne Corporation, is dredging the channels for the existing main shipping route from Bass Strait to the Port of Melbourne, which sits on the Yarra River.

The dredging is not a new occurrence. The channels have been dredged many times before. In this instance, however, the volume of dredging far exceeds past dredging effort. The motive behind the project is to deepen shipping channels to an adequate depth to accommodate the larger ships that are predicted to arrive in the port in the coming years. The fear in not doing the project is that Melbourne’s competitiveness as a trading port, especially for the container trade, will be hampered. The perceived and actual environmental effects of the project are manifold. They principally relate to the removal of rocks at the Heads, an area that abuts a marine park, the disturbance of toxic sediments in the Yarra River and the disposal of these sediments in the middle of the bay.

The project was referred under the Victorian Environment Effects Act 1978 and the Commonwealth Environment Protection and Biodiversity Conservation Act 1999. The upshot of those referrals was that the project was required to be subject to an Environment Effects Statement, which was accredited for the purpose of the Commonwealth investigation.

Victoria’s environmental assessment process
The environmental assessment process in Victoria, and the minor contribution the Environment Effects Act 1978 makes to that process, is typical of environmental assessments.

Less typically, however, it fundamentally depends on the implementation of the guidelines that support the Act. It is within the supporting guidelines that criteria for assessment, commitments to public processes and community deliberation, and timelines and requirements for open and accountable steps within the process are all found. Being guidelines they can be amended without oversight. They contain malleable language, which provides opportunities for manipulation. Because they are non-enforceable and non-binding, they are often not complied with.

Contrasted with other regimes, there are no offences in the Victorian Act, and there are no requirements on proponents to refer projects.

Promises of environmental assessment reform
My call for reform of the Environment Effects Act 1978 is not the first. In fact a reform agenda existed just years ago.

The Labor Party, originally in opposition and then in government, promised to revitalise Victoria’s environmental assessment process, which they claimed ‘no longer reflected leading practice’. The promised changes were not revolutionary. Commitments to greater transparency and accountability, community involvement, consistency and the depoliticisation of the process were understood by interested parties.

The recommendations of the appointed Advisory Committee into the Environmental Assessment Review were largely predictable and unadventurous despite being withheld for two-and-a-half years. In most respects the proposals were to mimic parts of legislation from other jurisdictions and to update what was generally regarded as an outmoded and undemocratic form of environmental assessment. The Advisory Committee’s proposal was for a three-tiered assessment approach within the Environment Effects Act 1978 along with new guarantees of transparency, deliberation, and accountability.

However, the Government ignored the recommendations despite them being heavily influenced by its own Department’s suggestions. The Act barely changed with the passage of the 2005 Amendment Act. The changes of note were the opportunity for proponents to refer projects was clarified and the Minister received the power to issue conditional ‘assessment not required’ advices. Despite the timidity of the changes, the Government unconvincingly claimed to have responded to the mood for change and that it had ‘enshrined’ improvements to the process merely by updating the Ministerial guidelines that support the Act.

Real reform
Perhaps it was because of the perceived failings of the first Environment Effects Statement process for the Channel Deepening Project that the Victorian Government ignored recommendations for reforms to the State’s environmental assessment laws. If that was the case then the State was misguided to think that to continue with the current regime and use it in a much narrower fashion, as it has sought to do for the proposed North-South Pipeline, and will likely repeat for the proposed Wonthaggi desalination plant, will improve the timeliness of assessments and enhance society. Rather, transparency, participation, and accountability have all been weakened by the Government’s current approach. The Channel Deepening Project could have been assessed in a much fairer and much quicker way in a reformed environmental assessment process. As it was, the Environment Effects Statement took longer than the State expected, the panel inquiry went for three arduous months, the project was highly criticised as being not supported by the assessment materials, and during the panel inquiry failings with the assessment work and management approach were revealed. The Government did not get the tick of approval it wanted from the process.

Unfortunately, the current tight leash approach to environmental assessment characterises the Channel Deepening Project process as a failure, rather than acknowledging that the project was not ready to undergo the process in the first place, and that the process succeeded in demonstrating this.

Key matters and panel control
Two improvements of the Government’s current efforts to fast track assessments is the focus on identifying key environmental matters and giving greater control to inquiry panels to manage the process. This has been taken too far in the North-South pipeline, but was useful in the Supplementary Environment Effects Statement process for the Channel Deepening Project. These aspects, which will undoubtedly expedite the process, should be considered in a reformed Environment Effects Statement process that also entrenches community rights to participate and government obligations to be open.

These two changes do respond to one of the key flaws of the first process, which was the scoping of the Environment Effects Statement. Critically, the guidelines for the project failed to identify the issues of environmental concern and social impact of most importance. Instead they set in train an assessment that was too big and too ambitious. It was not until the inquiry panel for the Environment Effects Statement issued its critical report on the project and the assessment process to that date that the decisive matters upon which decisions about whether the project should proceed or be prevented were articulated. Unfortunately, the Government has produced guidelines for the Wonthaggi desalination plant scoping that are too long, at times ambiguous, and in other parts complex.

If, as I propose in a reformed assessment regime for Victoria, the inquiry panel had been involved early in the first Channel Deepening Project process, rather than being appointed just one-and-a-half months before the commencement of the public inquiry, then it could have heard the concerns of agencies and interested parties and the results of initial investigations by the Port, and directed the assessment appropriately. The inquiry panel could have indicated its requirements for a ‘proof of concept’ of the turbidity impacts, more thorough toxicity testing, and greater evidence about disposal options for dredged material. These requirements were apparent to the panel in the first few days of the hearing. The Environment Effects Statement would not have been published so under prepared and so open for attack. The weight of documents produced would have been less and better directed and opponents would not have needed to read through volumes of reports that proved to be indeterminate.

I also question the sensibility of the Technical Reference Group signing off on the Environment Effects Statement then challenging the process and substance of the Environment Effects Statement in the panel hearing, as it did in the Channel Deepening Project. This role of approving the publication of the report should be allocated to the panel in a reformed environmental assessment approach for Victoria.

Model for reform
As I have already mentioned, at the State level, in order to meet the objectives of environmental assessment processes and to fulfil the Government’s unmet promises of legislative renewal, I propose that the environmental assessment process be included in the framework of the Planning and Environment Act 1987. This was one of the non-favoured options in the 2002 review of environmental assessment laws. The option was not favoured principally because it was seen as lowering the importance and rigour of assessments, that a matter of such importance as environmental assessment deserved a standalone piece of legislation with its own objectives, and because it would fail to account for strategic policy direction beyond the planning sphere.

None of these perceived faults necessarily stack up to analysis, especially if any project of potential significant environmental impact is addressed in a prominent part of every planning scheme and the policy documents guiding development and environmental conservation in the State are included in the framework.

If every project nominated as potentially having significant environmental effects requires a planning scheme amendment a detailed assessment would be necessary by technical and independent experts in an open and accountable forum, and strategic policy would be critical to any decision made to certify a planning scheme amendment.

The example of the Nowingi waste disposal project should encourage the inclusion of environmental assessments into planning regulations. In that case, the inquiry panel concluded that the environmental effects of project were acceptable. The project was rejected only because the inquiry panel concluded that the required planning scheme amendment was inconsistent with State planning objectives. Far from the planning scheme failing to engage with strategic policy, it facilitated it and would do similarly in environmental assessments.

There would be many benefits of incorporating the environment effects statement process into the Planning and Environment Act 1987. In particular, transparent and predictable processes, fixed timelines, and guaranteed community participation all specified in the planning scheme or the Act, and greater scrutiny of decisions, including by both houses of Parliament. There would be a common policy framework in the State Planning Policy and a transparent process for the making of policy. Opponents would not need to venture to the Supreme Court as the Blue Wedges were forced to do, and potentially face difficulties establishing standing. Access would be available to the Victorian Civil and Administrative Tribunal for people who make a submission to an assessment panel.

Problems with the Channel Deepening assessment
In contrast to the suggested reform approach, in the Channel Deepening Project the first panel was poorly directed and was unable to halt a process that was inquiring into an assessment that it believed was flawed. The terms of reference for the supplementary inquiry panel prohibited cross-examination and limited the inquiry panel hearing time to four weeks. The prohibition on cross-examination was not well received by the inquiry panel, which cautioned the Minister in its report from adopting a similar practice in future assessments. Equally, the inquiry panel had ‘some sympathy with the view that there was insufficient time to review the … material’. There is hope that the process will be improved if it is left to the discretion and control of such independent minds.

This reform approach depends on a faith in the planning system, and respect for the competency of the Victorian Civil and Administrative Tribunal and the independence of Planning Panels Victoria. It attempts to fix some of the problems in the Channel Deepening Project process while maintaining key features of deliberation, independence, clarity, and fairness.

Strategic assessment and early consultation
A reformed process could include strategic environmental assessment. A standing Advisory Committee could be formed to review strategic policy, and with a capacity to include strategy in the planning system as reference documents. Strategic environmental assessment would have prevented the making of poorly planned policies that led to the failed proposal to locate a waste disposal site in Nowingi, and would ensure that policies like the Victorian Ports Strategic Study and Our Water Our Future incorporate community views and are subject to rigorous analysis. Without such involvement and analysis the Our Water Our Future policy has been criticised by the Auditor General as being rushed and prepared with inadequate consultation.

A lack of consultation and inclusion in the development of the policy that underpinned the Channel Deepening Project led to fiercely held opposition to the Channel Deepening Project, including by the Blue Wedges Coalition and initially by Newport Power Station. This lack of consultation was, in my view, the main reason why the assessment and the project has been delayed and surrounded in controversy.

It was only after the environmental assessment works for the Channel Deepening Project were initiated that a consultation strategy for the project was put in place. By the time opponents were consulted their opposition to the Project was entrenched and the proponent was in a difficult position of trying to respond to community concerns that changed and built as people learnt more about the project and as potential weaknesses with the project were uncovered. This evolution of opposition can be seen throughout the environmental assessment process. The proponent’s science was not able to keep up with the changing concerns of the community. A focus on sea level changes and hydrodynamics diverted attention from turbidity concerns for businesses that extract water from areas close to the proposed works. A focus on a fix to those problems disguised the problems with the toxicity testing that would be spectacularly uncovered during the inquiry panel hearing into the Environment Effects Statement.

The EPBC Act dimension
The Commonwealth’s interest in this project proved to be a sideline matter until after the project was assessed and close to approval, when the absence of any accessible avenue for legal challenge to State environment assessment decisions led the Blue Wedges to take ambitious causes of action to the Federal Court.

The project was declared a controlled action by virtue of its likely significant impact on migratory species, threatened species and communities, Ramsar wetlands, and the environment of Commonwealth land on Swan Island. All of these aspects of the environment proved to raise only minor environmental issues in the greater scheme of the assessment. The project underscored the ineffectiveness of the accreditation process and the need to empower the Commonwealth to undertake rigorous and holistic environmental assessments of projects of national importance. It was folly that the Commonwealth was concerning itself with effects on bird species capable of avoiding impacts, marine species rarely seen in areas of predicted effects, the consequences of any inundation of Ramsar areas that would be miniscule compared to predicted sea level changes resulting from climate change, and the environment of a naval base that was on the periphery of the predicted scale of the effects.

The project is one of national importance. Through the project the Port aims to maintain its international competitiveness and increase exports and overall international trade effort. Yet the only aspects of national interest investigated by the Commonwealth were the social and economic effects, not the environmental ones. There is cause to pause and inquire into whether some of the features of the now defunct Environment Protection (Impact of Proposals) Act 1974 should be revived and activities of an international nature or national infrastructure projects be included as triggers for whole of environment assessments under the Environment Protection and Biodiversity Conservation Act 1999.

The Environment Protection and Biodiversity Conservation Act 1999 has not proved influential in Victoria aside from its use by the former Minister for the Environment, Ian Campbell, to temporarily reject the Bald Hills wind farm. Frustratingly, however, the accreditation of Environment Effects Statement processes by the Commonwealth has been used as a credential for the Victorian Government’s assessment approach. This may be the greatest obstacle to real reform of environmental assessment laws in Victoria.

Extraordinarily, the Commonwealth recently accredited a process for the proposed North-South pipeline that is not recognised in Victoria’s laws and that excludes from its terms and references an investigation any economic and social impacts. How the Commonwealth Department for Environment, Heritage and the Arts proposes to satisfy its legal obligation in the Environment Protection and Biodiversity Conservation Act 1999 to consider not only environmental but also social and economic impacts when deciding whether to approve the pipeline remains unclear.

What is clear, however, is that reform of environmental assessment laws in Victoria is overdue. We, as participants in the process, cannot be satisfied with the tinkering of the process in 2005 that was trumpeted as reform and we should not be complicit in a further weakening of the process as is occurring now.

Planning and wind farms in the UK

I was asked to give my view on the planning impediments to wind energy developments to Heren Energy, an energy news service. Heren understandably has a pro-wind agenda, hence the characterisation of the problem.

Here is what they decided to use of my contribution about those aspects of the planning process that create often intractable disputes, as published in Heren Energy’s European Daily Electricity Markets on 10 April 2008.