It’s tough being an environment minister. If you’re a Coalition minister, any holding up of a new mine, land-clearing or gas project, no matter how catastrophic, is evidence to colleagues you’re a sopping-wet dill captured by your department and an enemy of free enterprise. Unless it’s a renewables project, in which case you’re expected to find the mildest pretext to block it.
For Labor environment ministers, any approval of anything is evidence of a wholesale betrayal both of your personal beliefs and what few green credentials the party has.
Peter Garrett got it worst in 2009 when he approved a uranium mine, with the former (and future) Oils frontman, Nuclear Disarmament Party candidate and Australian Conservation Foundation president savaged for betraying his principles.
Now it’s Tanya Plibersek’s turn. Garrett didn’t have to endure abuse on social media, which was in its infancy in 2009, but Plibersek has copped plenty from Twitter lefties for approving new coalmines or extensions to existing ones, with cheers for environmental groups taking her to court to overturn her decisions. The Greens and groups like the Australia Institute have joined in criticising her. At least now it’s clear why people thought Anthony Albanese giving Plibersek environment was a real poisoned chalice.
Problem is, nearly all of the criticism, derision and abuse directed at Plibersek is unjustified.
Her decision to approve the Isaac River coalmine in Queensland in May — dutifully written up in Guardian Australia as enraging climate campaigners and the Australia Institute — related to a metallurgical, not thermal, coalmine. Bizarrely, Guardian Australia notes that the mine produces coking coal but then, straight-faced, reports it as though it’s a new fossil fuel project.
Steelmaking using hydrogen is slowly growing, but is still far more expensive than steel made with metallurgical coal, is still at the pilot project stage, and requires massive investment in new and retrofitted blast furnaces. We’re stuck with metallurgical coal for many years yet even if we dramatically scale up hydrogen-based steelmaking. Who’s for ditching steel, or paying a lot more for it? Anyone?
The conflation of metallurgical and thermal coal is not a one-off — the Australia Institute has complained about the expansion of the Vulcan coal project. Again, it’s metallurgical coal.
The bigger problem with attacking Plibersek — like the attacks on Garrett — is the assumption that, in making a decision under legislation, a minister can simply decide whatever they personally like, without consideration for the requirements and considerations Parliament imposes on the decision via the relevant act.
And there’s no climate “trigger” in the Environment Protection and Biodiversity Conservation Act (EPBC) with which a minister can block projects up for consideration. Block a project on the basis of its climate impact and a court will very quickly overturn the decision, regardless of how ardently a minister might feel on the issue.
Climate activists are — rightly — all for using courts to challenge ministerial decisions to approve projects. The Coalition, fossil fuel advocates and mining interests might term it “lawfare”, but it’s an entirely legitimate strategy. We live in a society with the rule of law, and courts and tribunals can review most ministerial decisions. But they’re not the only side that gets to challenge decisions.
A climate “trigger” could be added to the EPBC. That’s been the Greens’ position for a long time, but it was one rejected in the Samuel review of the EPBC under the previous government. Samuel and co instead recommended project proponents be required to detail the climate impacts of projects, but dealing with that impact should remain the subject of separate policy tools.
Whether the EPBC is the best vehicle for addressing climate impacts, or whether a standalone mechanism (like Labor’s safeguard mechanism, or a carbon price) is better is a live debate. The real problem is Labor’s reluctance to take climate change seriously.
In its response to the Samuel review last December, Labor proposed to set up an Environment Protection Agency to administer the EPBC, though the environment minister will still have a “call-in” power to override that process. There’ll be no climate trigger added to the legislation, merely a requirement that project proponents estimate their scope one and scope two emissions.
Scope three emissions — the emissions downstream users produce with the product — are excluded from that requirement, in line with Labor’s pigheaded insistence that it’s not Australia’s problem what other countries do with our carbon exports.
Labor is slightly more serious about climate change than the Coalition. But it still takes big donations from fossil fuel interests, it still supports more fossil fuel exports, its MPs and ministers still know they can get lucrative post-political gigs with resource companies, and its key unions still oppose real climate action. Under Labor, Australia is ramping up its fossil fuel exports. The state remains captured by fossil fuel interests.
But does that mean Plibersek should join her critics in a fantasy world where ministers can wield power based on personal beliefs without considering the consequences? Or should she obey the law?
The article makes a valid point about critics of the minister disregarding the context in which she operates, viz the legislation.
But it doesn’t really help us to give our attention to what the critics say beyond that. We could just ignore them and the world would still be what it is.
Only the penultimate paragraph promised more
I’d love to see Bernard and other Crikey journalists apply their energy to researching those stories and fleshing them out for us.
Plibersek is and will continue to attract heat for a range of decisions. In part bc the Labor party promised better on Climate, not just to be the same as the Libs/Nats but with more of a reddish colour-wash to their statements. But from here really, all the heat should be applied to both Albanese and Chalmers. Albo I would say is quite happy to have Tanya losing skin in her very greenish electorate while he steps away from the discussion. Albo has yet to demonstrate any real conviction or determination on either Climate or Environment in my view. He may still, but he definitely hasn’t yet. Chalmers is part of a budget setting process that delivers $11b in subsidies each year to fossil fuels, but can’t find a 1 billion a year for environment, sending his Minister down hair-brained and expensive blind alleys like ‘biodiversity markets’…a PwC partners dream, but a pricey failure for the rest of us. But really, this is only happening bc Albo and Jimbo love fossil fuel subsidies and hate taxing gas companies. So Tanya pays the price. The Coalition was catastrophic on climate…Labor being ‘not them’ doesn’t win the day…they have time to act, but they don’t even look like having the appetite at the moment. On biodiversity Albo may well end up delivering less than the Coalition unbelievably, bc the Environment Dept is on its knees for staffing and funding and neither Albo or Jimbo seem to show the slightest interest in turning that around. So here we are, High moral ground statements with no dollars, staffing or action means govt is weak as water in both Climate and Biodiversity, notwithstanding the efforts of Bowen, who is trying. It’s Albo that’s squarely the problem here. It looks increasinglyl like he doesn’t care, and he’s happy to see Plibersek, and Climate, the environment, and us and our kids take the bullets ….he’s got limited time to demonstrate otherwise. I hope he can.
Chalmers seems incapable of discussing issues in anything other than in market terms.
He seems like a decent enough fella. But its all measured in money, if he and Albo aren’t backing a boost to the Environment budget, nothing will change.
Agree
Meh. If Labor was serious about climate action it would change the environmental laws. There would be no problem obtaining support from the Greens and David Pocock.
Sure there would be, from the Greens anyway. Once the wagon starts rolling, they’ll issue their instructions & demand the ALP does the fighting for them while they take the credit.
The Greens will cheerfully support any ALP initiative that legislates real action on environmental laws. You may not have noticed, but the ALP legislation they oppose has to date been figleafs where the ALP pretend to be doing something while actually doing the equivalent of signing an e-petition, for all the good their legislation will achieve.
Or like an old Greens member mate of mine, a Brit immigrant, who did not promote their environmental policies but (subscribing to MacroBusiness) blamed other immigrants and/or population growth….. then admitted he did not like ‘brown people’.
Any details of this imaginary “friend”?
Was he fluffy, pink nose, long ears with a penchant for carrots, name of ‘Harvey’?
Not imaginary at all, nick name elsewhere (unbeknown to them) is ‘dog whistle’ or ‘jack boots’ while masquerading as a right on centrist and when departing MB described it as ‘conservative’; then again he doesn’t hide behind a string of random numbers and letters?
I think Labor’s far more worried about what happens if they do change the laws, because they certainly could. A well-resourced fightback from Australia’s oligarchs might see some unpleasantness.
Understandable, see noughties and attempts at a carbon pricing scheme under Rudd & Gillard; opposed and drowned out by imported US Tanton ZPG Network (fossil fueled) dog whistling of NOM, immigration and population growth as environmental ‘hygiene’ issues, plus the ‘carbon tax’ meme by media from a GOP carbon pricing proposal by Bill Clinton’s Democrats.
Then add Australian’s, informed by media hence, shallow grasp of issues, policies and encouraged to adopt ‘can’t be arsed’ attitudes or slackness…. status quo.
GOP meme vs. Clinton….
People are angry because Plibersek is the public face of the government which could make the laws better, and doesn’t, and she seems perfectly happy with things as they stand. Are we not allowed to criticise Dutton’s human rights violations because they were also government policy?
She has to toe the party line. I assume that’s why Albanese put her in the job – because it would tarnish her reputation amongst progressive voters and neutralise her as a threat to his leadership.
It’s why Abbott gave Turnbull the Ministry of Augean Stables (“Telecommunications”). He would not be able to get anything useful done, and hence be indistinguishable from Abbott.
Then she should resign in protest.
Yes, I’m pretty pissed off with this article by BK to the extent that I won’t be renewing my subscription. People who want action on Climate Change aren’t “living in a fantasy world” and there’s no reason to assume that they want Plibersek to “wield power” based on her personal beliefs. The problem is Labor party inaction, plain and simple. Many of us want the Labor party to act on climate change. If that takes changes to the law, well and good. We elect governments to make new law, not to hide behind bad, old outdated law.
Exactly why would Labor change the law given its capture by the fossil fuel industry and the drag anchor of the CFMMEU?
That’s the entire point of the article.
Why is BK telling you the truth grounds for cancelling your subscription?
Why is BK using deliberately inflammatory language to imply that voters who want more are unrealistic idealists?
One article that you may have misconstrued, then chosen to be outraged by and you’re taking your bat and ball and going home?
The premise of the article, and I quote Crikey, is: Should ministers be able to make decisions regardless of what the law says?
It’s a straw man argument where the minister is not limited to breaking the law to act for action on Climate Change. The minister has the power to make and change laws plus the minister can use exiting law to take action.
If anyone is taking their bat and ball and going home it’s BK and supporters og the thinking here, who seem to want to excuse Tanya Plibersek and the Labor government from taking action for spurious reasons.
A Minister cannot unilaterally change the law. Why do you insist on mounting arguments a 12 year old could dismiss?
You clearly don’t understand what the article is saying. It isn’t saying the law shouldn’t be changed.
I certainly agree with BK on this “The real problem is Labor’s reluctance to take climate change seriously.” What I disagree with, is the suggestion that people wanting action on climate change are asking the Plibersek and the Labor government to break the law as a means to achieve that end. There’s plenty of ways within the law that Labor could act but chooses not to. Pouring a billion plus dollars into the a gas hub for the Betaloo basin being one example.
The issue I have with this article and with an earlier one is the “poor Tanya Plibersek, her hands are tied” attitude which excuses Labor from taking any sort of action [even though they have no intention of doing so] and instead lays criticism on those who are crying out for real efforts to slow climate change.
Activists are asking for action. It’s up to the government to find the will and the way
Yes, but up against a biased right wing fossil fuel/mining linked media cartel which is and will be tricky to navigate i.e. obstacles, landmines and wedges vs. improved environmental policies? Too much naive noise masquerading as debate in media, especially social media, which is confected or fabricated to hold Labor’s feet to the fire, and demanding immediate action or else.
Not only a whiff of authoritarianism and astroturfing, but it deflects from LNP, think tanks and related businesses to suggest that Labor should… sack Plibersek, Albanese, et al. hoping they lose the next election, or even call an election now?
It only plays into the hands of unaccountable power in mining, media and running protection for the LNP; similar tactics are playing out in UK & US, former all the focus is on Labour especially criticism of Starmer (ignoring Tories) and latter Biden-Dems, ignoring GOP ‘owned’ by Kochs and Trump…
There is a difference between criticising the law and an unwillingness to change it, and criticising decisions that appear to be made in line with the law and claiming that somehow Plibersek should have ignored what the law says. The latter is dumb and is what Keane is criticising.
Why insist on conflating implementation of the law with changing the law. Why refuse to distinguish anything with any nuance, refuse to engage in accuracy. Why? How does that help push the Government to actually do something meaningful about climate change? In my experience working inside the public service your opponents will just latch on to all of the bits you’ve got wrong. You won’t be listened to. You won’t have a chance of changing their mind if you get something so basic so wrong. It’s just dumb at every level.
You have failed to read what I wrote, and so responded to something I didn’t say.
In my opinion there is abundant power in existing federal legislation to enable the Minister to consider climate pollution when approving coal and other mines. I practised law for 19 years, and my first litigation was against the 7 uranium mining companies on behalf of the then Movement Against Uranium Mining in the late ’70s. We won that case to stop their advertising campaign. The only reason I don’t run a case today against the Minister, and which I’m confident I would win (on the basis the climate impacts were not considered), is I prefer to garden. It’s too late now to stop collapse according to the U.N. and thousands of scientists.
But the former lawyer in me is tempted by this article to sue just to show the media and those funding and formulating current government policies that they aren’t above the law.
Today’s media is lazy and its mostly social media which brings change. If I were to sue I would not regard the article as providing legal advice upon which I could rely; the article promotes a self-serving legal myth being promoted by the Minister and others close to the coal and mining sector. Now, back to the garden.
Yes, thank you. It’s not the law that’s preventing Labor from climate action, it’s that as BK said “the state remains captured by fossil fuel interests” and this article by BK is horribly confused, seeming to want a bit each way, with the punchline last paragraph failing to give a true summary, even of the content of his writing.
How could she have considered it in this instance?
Good question, thank you. There are several grounds, some of which are well explained in a presentation generally yesterday about various climate pollution court cases by Justice Brian Preston and now available on Youtube, here:
I hope this helps; it’s a clear and wide-ranging discussion of the different court decisions. Michael
None of that seems relevant to the EPBC.
How do you get around the fact that climate is not a relevant consideration under the EPBC Act?
The EPBC Act has been in place for more than 20 years and in all that time no-one has successfully brought a case to block a project on climate grounds.
Change the act. Give it some TEETH!
I agree wholeheartedly. But that’s not what Michael is suggesting
She is the Minister for the Environment and should be lobbying for said teeth, and resigning her post to do so if necessary.
It was obviously too much to hope for that the post of Minister for the Environment should have become more than the junior Ministry for Trade that it always was under the Coalition.