INTERGOVERNMENTAL AGREEMENT ON THE ENVIRONMENT
3.4 What Does ESD Mean and How Does It Differ from Other Sustainability Paradigms?
3.4.2 Analysis of Remaining Elements and Identification of ESD Paradigm
The remaining elements appear in at least two of the three key documents and can be regarded as ‘core’ elements of an ESD paradigm. With evidence of official purpose and intent limited largely to the ESD Discussion Paper, these elements must be considered primarily by reference to first principles of coherence.
Intergenerational and Intragenerational Equity
The normative principles of inter- and intragenerational equity provide the rationale or aspiration for adopting a sustainability goal. Once that aspiration has been realised in the goal statement, attention should shift to the means of achieving that goal, for example by adopting an objective of protecting biodiversity (a macro-level means) supported by specific policies and actions (meso- and micro-level means) to achieve that objective. In dealing with IGE, the major policy statements have tended to confuse ends and means. At first this was not significant: the 1989 Statement defined IGE as ‘the task’, when
387 This model is described and reviewed by the Australian National Audit Office in Peter McVay and Australian National Audit Office, Regional Delivery Model for the Natural Heritage Trust and the National Action Plan for Salinity and Water Quality: Department of the Environment, Water, Heritage and the Arts — Department of
109
‘aspiration’ would have been more accurate, but because the Statement served both political and policy purposes it can be interpreted liberally. In the NSESD however, a formal
strategy, IGE is used as both a ‘core objective’ (‘to provide for equity … between generations’) and as a rationale (‘following a path of economic development that
safeguards the welfare of future generations’). This is confusing rather than incoherent. In the IGAE however, which does not include a goal, IGE is said to be a principle and is expressed in terms of maintaining the health of the environment for future generations. As the wording used is close to the goal statement of the NSESD, the problem lies not in the formulation per se, but in the treatment of IGE as a principle, because, as will be seen in the legislative case study in chapter seven, this has the effect of directing decision-makers to have regard to a principle whose policy work is already done.
Policy Integration
The principle of policy integration in decision-making was a central theme of the Brundtland Report, one that would also be included in the Rio Declaration.388 It follows logically from the ubiquity of negative environmental externalities that all decision-making should at least address environmental implications. The principle might even be argued to be otiose, as relevance alone would bring these factors into account when considering ecological integrity and biodiversity. Yet this would ignore the strong view in Brundtland that policy integration required fundamental changes to the manner in which decisions are taken, making policy integration a principle of institutional reform as well as a principle of decision-making.389
It is also useful to contrast the approach of the Brundtland Report, described here as ‘weak’ integration directed to reforming decision-making processes rather than outcomes, with the ‘strong’ integration approach of welfare economics, which integrates substantive economic and environmental factors by summing costs and benefits to ascertain the impact of a proposed policy or project on economic welfare.
Australia has shown a preference for weak policy integration. This is illustrated by the case study of the NSESD in chapter five, which concludes that the policy ambition of the recommendations of the ESD Working Groups advising the Government on the strategy
388 See Rio Declaration, above n 282, Principle 4.
389 See WCED, above n 7, 310, 314. This point is also recognised in the NSESD Discussion Paper: see Australian Government, above n 380, 17.
110
corresponded most closely to weak policy integration, as did the finalised strategy. Moreover, policy integration has sometimes been misunderstood or misrepresented in Australia. Rather than being seen as an element of ESD, it is sometimes equated with ESD, with the implication that ESD requires onlythat economic, environmental and social matters, both short and long term, be taken into account. While this argument is found mostly in discourse,390 chapter seven argues that environmental assessment and approval decisions under the EPBC Act align generally with this approach because, while the Act has a formal object of promoting ESD through the conservation of natural resources, its decisional requirements are based around requirements to have regard to ESD principles and related considerations. Moreover, it appears that the institutional implications of policy integration canvassed in the Brundtland Report may have been misunderstood in Australia. Section 516A(6) of the EPBC Act requires that the annual reports of Commonwealth agencies:
(a) include a report on how the activities of, and the administration (if any) of legislation by, the reporter during the period accorded with the principles of ecologically sustainable
development;
An auditor-general’s performance audit concerning this obligation, prepared after it had been in effect for two years, concluded that:
in spite of the Commonwealth’s 10-year commitment to ESD, and the more recent requirement for agencies to report annually on their contributions, many agencies are focused solely on the impact of their operations on the natural environment, and are yet to come to terms with the broader implications of ESD and its relevance to their operations. The view that ESD is not relevant to non-environmental agencies’ operations is widely held, and will need to be addressed by [the Environment Department] in moving the Government’s ESD agenda forward.391
The policy intent behind this provision is not clear, because it was one of a large number of amendments to the EPBC Bill included in a single package negotiated behind closed doors to give effect to a political agreement to secure passage of the Bill.392 Nevertheless it seems quite possible that this was an unsuccessful attempt to give effect to the Brundtland
390 See for example the Howard Government’s 1997 Oceans Policy, in which the Prime Minister talked of balancing environmental and development: Commonwealth, Parliamentary Debates, House of Representatives, 3 March 1997, 1698–9 (John Howard, Prime Minister, Ministerial Statement, ‘Australia’s Oceans Policy’). 391 Auditor General, Annual Reporting on Ecologically Sustainable Development, Audit Report No 41 2002–03, Performance Audit (ANAO 2003) 15–16.
111
Commission’s approach to institutionalising policy integration by requiring agencies to report on these institutional reforms, not the impact of their operations on the natural environment.
Precaution
The precautionary principle has engendered more discussion than any other sustainability principle and is the subject of entire works and some detailed jurisprudence.393 Much of this is beyond scope, because the issue here is the policy intent of precaution rather than its practice.
The origins of the precautionary principle lie in the German principle of Vorsorge, which translates literally as ‘beforehand or prior care and worry’.394 Boehmer-Christiansen argues that Vorsorge connotes a duty on government, if ‘wisdom and science combine to warn that current actions may lead to harm, to change society by persuasion and regulation …’. 395 The sentiment of Vorsorge seems to be anticipatory, a term that was used in some early policy documents and is also found in the literature on precaution, but has fallen out of favour.396 Surprisingly there are very few policy statements that shed light on the policy intent of precaution. A rare example comes from an informal statement by a regional UN meeting in 1990, that:
it is better to be roughly right in due time, bearing in mind the consequences of being very wrong, than to be precisely right too late.397
393 See for example Jacqueline Peel, The Precautionary Principle in Practice: Environmental Decision-Making and
Scientific Uncertainty (The Federation Press 2005); see also Telstra v Hornsby Shire Council, discussed in 7.4.3.
394 Sonja Boehmer-Christiansen, ‘The Precautionary Principle in Germany — enabling Government’ in Tim O’Riordan and James Cameron (eds), Interpreting the Precautionary Principle (Cameron May 1994) 38–39. 395 Ibid 33–34, 36, 38–39 (emphasis added). Boehmer-Christiansen argues that by 1976 precaution had become a cornerstone of German environmental policy.
396 The most prominent example of anticipation as a basis for policy is the OECD Declaration on Anticipatory
Environmental Policies (1979) in which OECD governments recited their conviction ‘that improving the human environment involves sustained long-term effort requiring policies that take into account at an early stage the environmental consequences of major decisions’ in declaring their support for policies that, among other things, called for the use of economic and fiscal instruments ‘to induce … enterprises and individuals to anticipate the environmental consequences of their actions and take them into account in their decisions …’: See OECD, Declaration on Anticipatory Environmental Policies, 18 May 1979, C(79)121/ANN (OECD 1979) recital d, [3]. For references to anticipation in the literature on precaution, see for example James Cameron and Julie Abouchar, ‘The Precautionary Principle: A Fundamental Principle of Law and Policy for the Protection of the Global Environment’, (1991) Boston College International and Comparative Law Review 1, 21; Stephen R Dovers and John W Handmer, ‘Ignorance, sustainability, and the precautionary principle: Towards an analytical framework’ in Ronnie Harding and Elizabeth Fisher, Perspectives on the Precautionary Principle (Federation Press 1999) 167, 170.
397 Norwegian Research Council for Science and the Humanities (NAVF), Sustainable Development, Science and Policy: The Conference Report (NAVF 1990), reporting the United Nations Economic Communities for Europe Conference, 'Action for a Common Future', Bergen, Norway, 8–16 May 1990, cited in Timothy
112
Domestically, the 1990 ESD Discussion Paper made an insurance argument for precaution, to the effect that the uncertain possibility of irreversible damage justified paying an
‘insurance premium’ in the form of preventative action or further research, provided, in effect, that the premium was worth paying: avoidance should be chosen ‘where possible’ after weighing the risk of potentially serious damage against the size of opportunity costs.398 From first principles, the correct policy response should not be based on
insurance, which is a price paid to secure compensation if unlikely events transpire, but on
avoidance, an act to ensure that unacceptable events do not occur, with the corollary that the consequences of avoidance are accepted as a ‘price’. Simple logic (or perhaps ‘common sense’, since that concept was invoked in the very first Australian case on the precautionary principle),399 dictates that if the goal is to maintain ecological processes, because they are essential to an enduring quality of life, significant degradation of these processes is
unacceptable, as is the risk of such degradation. Yet risk is often defined as the product of likelihood and consequence400 and risk management is directed to harm minimisation. If the likelihood of consequences is not known, which, given a limited human understanding of ecology is often the case with actions affecting the environment, the risks are unknown and cannot be assessed or managed. Rather, what is being managed is uncertainty. Because the consequences, should those uncertain events occur, are unacceptable the possibility of environmental degradation must also be unacceptable. The effect of the precautionary principle is thus to extend harm minimisation beyond managing risks, to managing uncertainty.401 This extension to caution (or prevention, in Gullett’s terms), is precaution; the prefix is apposite because precaution is anterior in a policy sense to caution. As Gullett describes it:
O'Riordan and Andrew Jordan, The Precautionary Principle, Science Politics and Ethics (Centre for Social and Economic Research On the Global Environment 1995) 3.
398 Australian Government, ESD Discussion Paper, above n 380, 25.
399Leatch v National Parks and Wildlife Service and Shoalhaven City Council (1993) 81 LGERA 270. Note that at that time the precautionary principle had not been given legislative effect in the relevant jurisdiction (NSW). 400 Kaplan and Garrick point out that risk is actually a set of risk curves relating to different scenarios (see Stanley Kaplan and B John Garrick ‘On the Quantitative Definition of Risk’, (1981) 1(1)Risk Analysis 11, 13– 14) but the simplified approach is sufficient for present purposes).
401 J Cameron, “The precautionary principle: Core meaning, constitutional framework and procedures for implementation” in R Harding and E Fisher (eds), Perspectives on the Precautionary Principle (Federation Press, 1999, 29), p 37; N de Sadeleer, Environmental Principles: From Political Slogans to Legal Rules (Oxford University Press, 2005), 74–75, 159.
113
The preventive principle requires risk and causation to be scientifically proven: the precautionary principle extends the preventive requirements of due diligence where there is uncertainty as to environmental outcomes.402
The policy implication is that the normal requirement that government decisions be based on evidence (including CBA or assessed risk) may not apply; the mere possibility of
unacceptable consequences becomes a sufficient rationale for acting to prevent those consequences, whether proactively, for example by setting an SMS based on the minimax principle of minimising the risk of maximum harm,403 or reactively, for example by
refusing a development application or at least putting the onus of proof on a proponent to demonstrate that a project will not increase the likelihood of irreversible harm.404
Precaution might thus be described as ‘extended risk management’ because it goes beyond managing risks to managing uncertainties.405 The logic of the principle makes it central to the sustainability paradigm. Yet in conventional terms, a policy of blocking significant economic opportunities, or committing substantial public funds, on the basis of a mere possibility, is a radical approach. It is understandable why environment groups have advocated so strongly for precaution and why there is so little evidence of governments taking a precautionary approach: to those not accepting of the logic, intervention without evidence could appear wasteful and reckless or can be portrayed as such for political purposes. The only saving grace is that the scope of operation of precaution is reduced as scientific understanding increases: a clear policy corollary of precaution is to maximise investment in environmental research.
Ecological Processes and Biodiversity
402 Warwick Gullett, ‘Environmental Protection and the “Precautionary Principle”: A Response to Scientific Uncertainty in Environmental Management’ (1997) 14 Environmental and Planning Law Journal 52, 57.
403 See Robert Costanza, ‘What is Ecological Economics?’ (1989) 1 Ecological Economics 1, 4; see also the discussion of precaution in Perrings and Pearce, ‘Threshold Effects and Incentives for the Conservation of Biodiversity’, above n 131.
404 A corollary of this reasoning is that where a proposed activity requires government approval and raises the possibility of significant adverse impacts on the environment, the onus of proof should be reversed, requiring the proponent to satisfy the decision-maker than the possible impacts can be avoided, mitigated or offset. The Telstra decision discussed in 7.4.4 suggests that this will be the case where a court is reviewing a decision on the merits.
405 Perrings uses the term ‘reserved rationality’ for a precautionary approach under which the decision maker reserves their position by allowing initially for uncertainty and a margin for error but leaves scope to relax this position as experience reduces the uncertainty: see Charles Perrings, ‘Reserved Rationality and the
Precautionary Principle: Technological Change, Time and Uncertainty in Environmental Decision Making’ in Robert Costanza (ed), Ecological Economics: The Science and Management of Sustainability (Columbia University Press 1991) 153.
114
This element combines two related principles, one of maintaining ecological processes (or integrity), the other of maintaining biodiversity. In both the 1989 Statement and NSESD, the maintenance of biodiversity and ecological processes is an objective, while in the IGAE this is a principle, but one expressed to be a ‘fundamental consideration’.
Official records do not explain why the IGAE refers to biodiversity as a fundamental consideration. Commonwealth officials advised state counterparts that they developed the principles of environmental policy by drawing on two documents, one of which, the Interim Policy Statement on ESD in International Development Cooperation does describe biodiversity in these terms, but without explanation.406 Neither do the Cabinet submissions seeking endorsement of the IGAE or endorsing the other two source documents assist as they do not discuss the principles of environmental policy.407
On balance, the policy documents treat maintenance of ecological processes and
biodiversity as an objective, two by direct reference and the IGAE indirectly by describing biodiversity in the relevant principle as fundamental. This is consistent with the policy logic: the science shows that these ecological attributes are essential to maintaining the capacity of renewable resources to renew, which is part of the sustainability goal.
Ecological processes and biodiversity are two aspects of maintaining natural processes and might have been combined as a single objective such as maintaining ecological resilience, but the desirability of doing so is more an issue of science than policy.408
Economic Approaches
This element appears in the NSESD and IGAE as a principle, but in significantly different forms. The long version in the IGAE appears to address the application of economics in
406 Department of the Arts, Sport, the Environment, Tourism and Territories, Deputy Secretary,
‘Intergovernmental Agreement on the Environment: Principles’, above n 365. The other documents were Australia’s general negotiating position for UNCED 1992.
407 See Australian Government, ‘Intergovernmental Agreement on the Environment (IGAE)’ Cabinet
Submission8409 above n 368; Australian Government, ‘United Nations Conference on Environment and Development (UNCED: Brazil 1992) — Australian Objectives for Meetings of Preparatory Committee’ Cabinet Submission 7800, above n 367; Australian Government, ‘Interim Policy Statement on ESD in
International Development Cooperation’, Australian Government, ‘Ecologically Sustainable Development in International Development Cooperation’, Cabinet Submission 7672, above n 367.
408 Ecological process are the basal processes of ecosystems such as respiration and nutrient cycling, while biodiversity relates to the variety and variability of life; the relationship between the two remains uncertain: see Roberto Cazzolla Gatti, ‘A century of biodiversity: some open questions and some answers’ (2017) 18(4) Biodiversity 175, 177, 178. See also Brian Walker, David Salt and Walter Reid, Resilience Thinking: Sustaining Ecosystems and People in a Changing World (Island Press, 2010).
115
sustainability generally: substantively, by reference to polluter pays and user pays policies;
procedurally, through including environmental factors in valuation of assets and services for CBA; and in implementation, through the requirement for cost-effective approaches,
incentives and market mechanisms. The shorter version of the principle in the NSESD is largely confined to implementation, advocating cost-effective policy instruments, except that it mentions valuation as an example, which seems egregious because valuation is most relevant to economic analysis rather than implementation.409
In either version, given an objective of maximising economic welfare, this principle is unnecessary. Pursuit of welfare maximisation will automatically involve the decision tool of CBA with its requirement for valuation. As to implementation, the broader literature on policy implementation points to economic instruments as being more cost-effective than traditional regulation, due to their automaticity.410
Why would this principle be included if unnecessary? The use of market mechanisms to achieve policy objectives was regarded as innovative at the time, enhancing cost-
effectiveness. Dales had pioneered the concept of economic instruments (also ‘market- based instruments’), proposing tradable emission permits only in 1968,411 while the USA was pioneering their application at this time.412 Agenda 21, the implementation plan agreed at the Rio Conference in 1992, advocated several market-based instruments including tradable permits as ‘innovative financing’.413 Those drafting the policy statements may have considered it necessary to mention economic instruments because of their novelty, or to