Reproduced, with permission, from:
Anton, D. K., J. Kohout, and N. Pain. 1993. Nationalizing environmental protection in Australia: The international dimensions. Environmental Law 23: 763-83.
The material in this article was presented 18 June 1991, at the Powerhouse Museum in Sydney, to a conference on the establishment and role of an national environmental protection agency which the Australian Government is presently considering. The authors argue that a federal environmental protection authority, equipped with enforcement powers, is necessary if Australia is to fulfill its international obligations to environmental protection.
I. INTRODUCTION
A national approach to environmental protection is the most effective way for Australia to protect its own environment and to contribute to the common cause of global environmental protection.[1] The centerpiece of this approach should be a federal environmental protection authority (EPA), able to deal with the issues which arise on a transboundary basis, both nationally and internationally. However, the powers of a national agency will need to be tailored to avoid conflict within the system of cooperative federalism in Australia.
This article reviews constitutional tensions between federal and state government as they relate to several of the major international environmental conventions that bind Australia. The authors conclude that a federal authority, committed to enforcing Australia's international agreements to protect the environment, is the most effective means of addressing worldwide concern with the state of the natural world.
II. INTERNATIONAL ENVIRONMENTAL LAW: AUSTRALIA'S INTERNATIONAL RESPONSIBILITIES AND SUGGESTIONS FOR THEIR ADMINISTRATION
A. International Environmental Treaties
With the emergence of worldwide environmental consciousness in the early 1970s, Australia began to assume numerous international obligations regarding the environment. The federal government began to explore ways to meet these international obligations under national law and to exercise some influence over environmental matters and land use generally.[2]
Initially, the implementation of environmental treaties[3] was complicated by the fact the Australian Constitution does not repose any specific environmental protection powers in either the federal or state governments.[4] Authority for federal oversight of international treaties can be found in Section 51(xxix) of the Constitution, which gives the federal government power to legislate on matters relating to "external affairs," including environmental matters.[5] This power enables the implementation of treaty provisions through appropriate legislation.[6] The scope of this authority, however, has been a matter of dispute between state and federal governments.[7]
A detailed analysis of Section 51(xxix) is beyond the ambit of this article.[8] It should be noted, however, that the High Court of Australia has recognized that environmental treaties ratified by Australia may impose international duties at a national level.[9] A federal Environmental Protection Authority with appropriate regulatory powers should be established to ensure that Australia maintains compliance with its international environmental obligations.
There are now more than one thousand treaties that serve as sources for international environmental obligations.[10] Although Australia is not party to all of them, it has sizeable international commitments through treaties it has signed or implemented.[11] Further, this decade is likely to see a proliferation of international environmental law encouraged in large part by the United Nations Conference on Environment & Development (UNCED),[12] and increased governmental awareness of the seriousness of global environmental problems.
While many environmental agreements are primarily worldwide in scope, it is important to note that Australia is becoming increasingly involved in environmental agreements and programs specifically tailored to the needs of the Pacific region.[13] While Australia has ratified all of these regional agreements, none of them have been implemented by Commonwealth legislation to date.[14] As important as these conventions are, the Action Plan For Managing the Environment of the South Pacific Region, adopted in 1986 and revised in 1991,[15] also provides significant measures for environmental protection in the region. The Plan is particularly important in the region as it provides for a variety of measures to promote environmental protection outside any legal framework. This is important to international environmental protection because many South Pacific countries lack the resources and hence the inclination to enter into legally binding obligations.
With a greater role likely to be played by the South Pacific Regional Environmental Programme in the foreseeable future, due in large part to a considerable increase in funding from the World Bank in 1991, greater emphasis on regional environmental protection is likely. Australia's international obligations to implement environmental protection measures nationally under these treaties will need consideration. Australia already faces and will face greater obligations under international environmental law at the global and South Pacific regional level. How to effectively implement these obligations on a national basis must be considered.
B. Domestic Implementation of International Environmental Treaties
As the scope and coverage of international environmental law progressively widens, the coordinated operation of treaty rights and obligations will be crucial in establishing an effective international legal order for the protection of the environment. Without an integrated application of effective national regulations, international environmental law is likely to become superfluous.
The World Conservation Strategy, which has been adopted by Australia.[16] indicates the suitability of Federal EPA oversight of international agreements on the environment. Principle 7 of the Strategy provides that:
[e]ach country should review and consolidate its legislation concerning living resources to ensure that it provides sufficiently for conservation. Each country should also review--and if necessary strengthen--its capacity to implement its conservation legislation, both existing and required. Ideally, a commitment to conserve the country's living resources should be incorporated in the constitution or other appropriate legal instrument.[17]
It is plain that the focus of Principle 7 is on an integrated national implementation of the Strategy. Indeed, Principle 7 exhorts nations to embody their commitment to conservation in their constituent documents.
At the domestic level, the implications of an effective structure of international environmental law are considerable. This is especially so in the context of Australia's unique brand of "cooperative federalism."[18] The Australian Constitution splits legislative authority between the Commonwealth and State governments. Under constitutional tradition, the Commonwealth government has been accorded the power to enter into treaties[19] and regulate foreign affairs. Even so, depending on the specific subject area covered and the constitutional division of powers, the states may still retain legislative jurisdiction over the subject area of a particular treaty.[20] This has important implications in the area of international environmental treaties. Foremost, it has the potential to limit the ability of a federal EPA to engage in effective domestic regulation.
The Australia Constitution contains scant reference to environmental concerns[21] and does not expressly confer jurisdiction of environmental issues on the federal government.[22] Therefore, in theory, environmental regulation should be subject to exclusive state control, because powers not specifically set forth in the Constitution are reserved to the states.[23] This has, however, not been proven to be true.
A trilogy of cases decided by the High Court of Australia during the 1980s,[24] approving the use of the foreign affairs power to implement international environmental agreements, appears to have conclusively resolved the issue regarding the general power to legislate on such agreements in favor of the Commonwealth. Commonwealth v. Tasmanian Dam[25] held that the Commonwealth has the power under Section 51(xxix) to enact legislation implementing international environmental obligations binding on Australia. Richardson v. Forestry Commission[26] established that the federal government can take reasonably necessary interim action while determining the extent of a treaty obligation. Queensland v Commonwealth[27] held, in the context of the UNESCO Convention for the Protection and Preservation of the World Cultural and Natural Heritage 1972, that the federal government has the power to evaluate and submit property it believes to be world heritage for inclusion in the World Heritage List, and that the status of a property so listed is not reviewable by a court as a question of fact.[28] One commentator has rightly concluded that "the broad view of the treaty power is now beyond challenge: the real issue now is to determine the implications, and the parameters, of the broad view."[29]
The power to enact laws implementing a treaty is meaningless in the absence of a means of enforcement and a method of intra- and inter-government coordination. The most efficient method of enforcement and coordination is through a dedicated centralized authority. A single centralized authority can avoid duplicative or inconsistent standards, jurisdictional rivalry, and economic competition which may be a problem with multiple regional authorities. Accordingly, a federal EPA, dedicated to enforcing and coordinating Australia's international environmental obligations, is not only crucial to the implementation of environmental treaties, but is also the most efficient mechanism for ensuring that treaty obligations are observed.
C. Federal EPA Oversight of International Responsibilities
The need for a federal EPA flows from the proposition that the states within a federation lack international personality and the capacity to enter into international treaties.[30] International obligations undertaken by the Nation qua Nation should be administered at a national level.[31]
The controversy in Queensland[32] is a prime example of the problems that a state, as part of a federation, may create when attempting to involve itself in the international environmental regulatory process. During the course of the Commonwealth's attempt to place a rainforest in northeastern Queensland on the World Heritage List, Queensland sought to intercede in international fora to challenge the listing.[33] At a IUCN meeting in Costa Rica and a World Heritage Bureau meeting in Paris, Queensland submitted a report to the IUCN that apparently was not considered.[34] Queensland also met with a cool reception in Paris, because the World Heritage Bureau does not provide for a state within a federal system to advocate a position before it.[35]
The increasing international and internal interdependence of the affairs of a nation-state requires a unitary policy. Confidence is hardly engendered by a nation that appears schizophrenic about, or unable to meet, its international obligations, with constituent states able to override or substantially impair national decisions. The efficient discharge of international obligations will only result from a single, consistent system. A federal EPA provides such a system.
In addition, implementation of international agreements binding the nation demands a single uniform rule applicable nationally.[36] Indeed, to the extent that Commonwealth legislation is permitted under its external affairs power,[37] any inconsistent state legislation will be rendered nugatory.[38]
The general need for uniformity has been recognized on a regional international level by the European Community. The Treaty of Rome[39] emphasizes the need to eliminate "disparit[ies] between the legislative or administrative provisions of the Member States."[40] In the environmental context, the European Community recently approved a directive that not only enhances uniformity within nations, but also between states, in connection with reporting procedures.[41] The measure standardizes reporting requirements and introduces a common reporting procedure in connection with air, water and waste regulations that are governed by more than thirty existing European Community directives.[42] The directive is designed to make "the reporting obligations of member states more systematic and more coherent."[43]
The practical benefits of uniform national regulation of international standards were recognized in R. v. Burgess ex parte Henry.[44] Burgess involved a challenge to federal regulations purporting to implement the provisions of the Paris Convention for the Regulation of Aerial Navigation of 1919.[45] In concluding that the power to promulgate the regulations fell within the external affairs power, Justice Dixon reasoned that "uniformity" of international aircraft regulations enhanced safety, regularity, and the efficiency of aviation generally.[46] These salutary objectives would also undoubtedly be served by uniform regulation of international environmental obligations.
Economic considerations also support the need for uniform national standards implementing international environmental agreements. In the absence of national regulation, an Australian state that takes it upon itself to protect its environment runs the risk of being placed at a competitive disadvantage through increased costs.[47] In choosing to enact provisions to protect the environment, a state will inevitably consider the increased costs on its economy. Whether the costs are borne by producers, consumers, or taxpayers, a state will feel burdensome economic consequences if it passes environmental legislation. Without national standards, states are apt to adopt a "tragedy of the commons" mentality[48] and inadequate protection will be adopted.
Parochialism is an additional reason for uniform national regulation. In competing with each other for industry and development investment, Australian states are often tempted to lower costs through lax environmental regulation, or worse, no regulation at all. Waste also results from state rivalry because a disadvantaged state will forego the full economic rent for the use of its resources in order to attract investment. By contrast, the federal government tends to maintain a national perspective. It is less politically dependent upon the support of any single region and is more appropriately equipped to enforce international standards of environmental management.
The disparity of wealth among Australian states also militates in favor of national supervision.[49] In order to generate revenue, a financially strapped state may welcome, through inadequate legislation, the transfer of environmentally hazardous substances, activities, or facilities that a more affluent state can afford to legislate against. In a national context, there is no reason for the citizens of one state to bear more environmental risks than those of another. National supervisory control of international obligations would diminish the chances of this happening. The implementation of Australia's international obligations in relation to the environment are likely to be complex. State environmental agencies must continue to play an important role in delegable functions such as licensing and inspection. Nevertheless, a national agency is crucial to overall enforcement and coordination of environmental protection in Australia.
D. Substantive Areas of International Environmental Law
Three important international environmental regimes in which Australia participates, together with the conventions that bind Australia, provide an illustration of the need for a national environmental protection authority.
1. Hazardous Waste
The intractable nature of hazardous waste makes it an especially dangerous threat to the environment.[50] It was recognized as an international problem in the Basel Convention on the Control of Transboundary Movements of Hazardous Wastes and their Disposal.[51] The Basel Convention acknowledges "the growing threat to human health and the environment posed by the increased generation and complexity, and transboundary movement of hazardous wastes."[52]
The most effective way to avoid the dangers of hazardous waste is to reduce their generation. In lieu of reduction, the Convention establishes a framework for promoting safe shipment and disposal of such wastes across national boundaries.[53] One of the major shortcomings of the Convention is insufficient provisions for monitoring compliance and enforcement. For now, nongovernmental organizations (NGOs) provide most of the compliance monitoring and enforcement of the Convention.[54]
Australia responded to the Basel Convention at the national level, with passage of the Hazardous Waste (Regulation of Exports and Imports) Act 1989.[55] To import or export hazardous waste, as defined in the Basel Convention, a person must apply to the responsible Minister for a permit. The Minister considers whether the waste will be disposed of safely and will not "pose a significant risk of injury or damage to human beings or to the environment.[56]
There is little doubt that a centralized environmental agency would enhance the implementation of the Basel and SPREP Conventions, as well as compliment the new Commonwealth Industrial Chemicals (Notification and Assessment) Act 1989 and the Commonwealth Notification and Assessment Scheme.[57] The Act and Scheme, which became operative in July 1990, require manufacturers or importers of industrial chemicals to give notice of the introduction of a new chemical and to submit data that will allow an objective assessment of health and safety risks to humans and the environment.[58] Depending on the evaluation the risks, an assessment certificate may or may not issue.[59] The Act and Scheme are currently administered at the national level through a number of bodies.
Given the national importance of the control of hazardous substances and its international ramifications, hazardous waste is especially appropriate for regulation by a federal environmental protection authority. The need for the development of a national comprehensive waste management strategy in Australia in order to comply with the obligations imposed under the Basel Convention has been recognized.[60] An adequately funded authority would be able to establish a nationwide tracking system with sufficient monitoring and enforcement capabilities to ensure effective regulation.[61]
2. Atmospheric Protection
Ozone depletion, greenhouse gases, and atmospheric pollution are increasing global problems. Effective control requires a concerted effort by all nations. The Vienna Convention for the Protection of the Ozone Layer[62] and the Montreal Protocol on Substances that Deplete the Ozone Layer[63] are the landmark international agreements on protection of the ozone layer.
The history of the Montreal Protocol demonstrates the importance of building scientific consensus and the need to develop a commonly accepted body of data and analysis. The Protocol uses three kinds of provisions as economic incentives to encourage participation and compliance with the control regime. They are entry into force requirements, controls on trade with nonparties, and research and technology transfer benefits.[64]
As a party to that Protocol, Australia has an obligation to work toward effective compliance. In order to satisfy this obligation the Commonwealth passed the Ozone Protection Act 1989. In fact, the legislation goes beyond what is required of Australia as a signatory to the Protocol.[65] Generally, the Act is designed to restrict the use of (and ultimately phase out) five types of chlorinated fluorocarbons and three forms of halons that are known to cause ozone depletion.[66]
The types of measures necessary to achieve compliance with Australia's international obligations, require a concerted effort at a national level. The Commonwealth's efforts will be hampered if a concurrent system of licensing at the state level is operating inconsistently.[67] A federal environmental protection authority is well suited to oversee the international duties imposed on Australia under the Vienna Convention and the Montreal Protocol.
3. Marine Pollution
Marine pollution is another threat to the global commons and has substantial impacts within territorial waters. Dumping of waste in the oceans has been recognized as an international problem since at least 1926 when an international conference in the United States elaborated provisions for an unsuccessful treaty to limit the discharge of oil and gas into the sea.[68] It was not until 1954, however, that the international community put its first convention to protect the marine environment into effect.[69]
A heightened environmental awareness, coupled with the 1967 Torrey Canyon tanker accident, led to measures to protect the sea from marine pollution. The International Maritime Organization drafted two conventions for this purpose in 1969. One imposed civil liability for oil pollution damage,[70] and the other related to intervention on the high seas in cases of oil pollution casualties.[71]
The dumping of wastes in the oceans was recognized as an international problem in the 1972 London Dumping Convention.[72] This treaty prohibits the deliberate disposal of dangerous wastes, including plastics and other persistent synthetic materials, that float or remain suspended in marine waters.[73] For less harmful substances, a license must be obtained. The purpose of the Convention is "to promote effective control of all sources of marine pollution." Additionally, the Convention seeks to prevent "ocean pollution caused by dumping of waste and other matter that may create hazards to human health, impact on living marine resources, damage amenities, or hinder legitimate uses of the sea."[74] The Convention accomplishes this by providing nation-states with the authority to regulate the deliberate ocean-dumping of marine wastes.[75] The International Convention for the Prevention of Pollution from Ships (MARPOL) "seeks to eliminate intentional pollution of the marine environment with oil and other harmful substances and to minimize the accidental discharge of such substances."[76]
Australia is a party to both of these treaties. The nation's commitment to the marine environment has been further demonstrated by the decision to sign the 1982 United Nations Convention on the Law of the Sea III. UNCLOS obligates signatory states to "protect and preserve the marine environment." It directs states to pass laws that will prevent, avoid, diminish, and control pollution of the marine environment from ocean dumping.[77] Although UNCLOS has not entered into force, Australia's signatory status is an international statement of commitment to protecting the marine environment.[78] State jurisdictional borders are especially inappropriate constraints on the marine environment. A federal approach is the most realistic way to effectively regulate an ecosystem which wraps around the entire continent of Australia.
E. Measuring Future Effectiveness--International Standards to Work By
Two important general principles of environmental regulation should guide a national agency in the performance of its duties: the precautionary principle and the polluter pays principle. Both principles are gaining increased acceptance on an international level. Some commentators consider these principles essential to the success of any environmental protection.[79] Effective use of these principles also depends on the establishment of a strong federal EPA.
1. The Precautionary Principle
The term "precautionary principle" has appeared with an increasing frequency in the academic literature[80] and official documents[81] of international environmental law. It denotes a general notion that it is desirable to prevent pollution and that States should act with care in making decisions that could adversely impact the environment.
Beyond this general notion, the precautionary principle holds that "substances or activities that may be harmful to the environment should be regulated even if conclusive scientific evidence of their harmfulness is not as yet available."[82] The legal ramifications of the principle involve shifting the burden of proof, from those supporting environmental regulation to those engaged in the activity being opposed, to establish that such activities would not adversely affect the environment.
The precautionary principle arises in the context of international environmental agreements because these agreements ordinarily respond to scientific evidence of an environmental problem. Unfortunately, scientific evidence is rarely, if ever, absolute. This places nation-states in a dilemma. On one hand, negotiators need sufficient and accurate data to understand complex environmental problems and to formulate effective solutions. On the other hand, if negotiators wait until perfect scientific evidence is available, the problem may have worsened or become irreversible.[83] The precautionary principle compels States to act in the face of scientific uncertainty to safeguard the environment.
The precautionary principle has potential for application in domestic law. It clearly demands a measure of care and foresight that require the integration of environmental concern into every aspect of governance. Before undertaking any decision that may be harmful to the environment, governmental authority must pause and consider the consequences.[84] To ensure a fully informed decision, the principle necessitates coordination among all levels of government. It is readily apparent that this principle of international environmental law favors a centralized authority and a federal EPA is the most appropriate mechanism to ensure the precautionary approach to environmental regulation is carried out.
2. The Polluter Pays Principle
Natural resources exploitation is often described in terms of the "tragedy of the Commons" analogy.[85] Overuse of a common natural area benefits each user in the short term with only diffuse costs. However, unchecked cumulative use will eventually lead to the destruction of the area. Where pollution is involved, the problem is a function of a market system which permits external detrimental effects to the environment to be excluded from production costs.[86]
The polluter pays principle requires that all costs, including costs to the environment, be included in decision-making processes. This ensures that environmental degradation caused by the production, use, and disposal of certain activities is incorporated into production costs. Various economic approaches facilitate this internalization, such as setting standards, which the polluter then pays the cost of meeting; instituting charges for input and product manufacture; and setting standards and issuing pollution permits, which can then be sold or traded.[87]
The Precautionary Principle and the Polluter Pays Principle are important to the national and international policy objectives of a national environmental protection agency.
III. NEED FOR A UNIFIED APPROACH
Australia needs a unified approach to enforcement and coordination of international environmental protection and pollution control obligations. One way to achieve this is through a national environment agency similar to the U.S. EPA. Establishing such an agency in Australia is challenging, but possible, if the federal government is sufficiently determined, and the federal departments which currently fulfill these functions can relinquish some responsibility. An effective EPA must have clear legal authority, adequate resources, a commitment to credible enforcement measures, and a system which involves the public and NGOs at all levels.
The evolving dynamic in the relationship between the federal and state governments will be a significant issue in Australia if a federal environmental agency is established. Australian federal and state governments will need to consider how the respective governmental systems are to relate with a federal agency introduced into the environmental arena.
There are other challenges to consider in conjunction with establishing a national environment agency. For example, mediation and other conflict resolution mechanisms are only just developing in Australia,[88] but have been flourishing in the United States,[89] and Canada to a lesser extent. The Australian government has allocated funds in its 1991-92 budget for the establishment of a national Environment Protection Authority. At present the proposed agency appears more modest and less powerful than the models pressed on the government by some non-government organizations and legal academics. The actual operation of the agency will have to be closely monitored before its effectiveness can be evaluated.
** Member of the Michigan Bar; JD, MPP 1991; Research Fellow, EDO.
4. See infra notes 7 and 8 and accompanying text.
14. On Australian implementation of treaties, see supra note 3.
16. See G M. BATES, ENVIRONMENTAL LAW IN AUSTRALIA 17-18 (2d ed. 1987).
20. See LANE, supra note 19, section 22(7).
26. Richardson, 164 C.L.R. at 261.
27. Queensland, 167 C.L.R. at 232.
32. 167 C.L.R. 232 (1989) (Austl.).
33. See Edmonds, supra note 18, at 409-10.
44. 55 C.L.R. 608 (1936) (Austl.).
45. Paris Convention for the Regulation of Aerial Navigation of 1919, 11 L.N.T.S. 174.
46. Burgess, 55 C.L.R. at 666-67.
47. See Kiss & Shelton, supra note 10 at 5.
48. See infra, note 84 and accompanying text.
49. See Kiss & SHELTON supra note 10, at 3-4.
60. Lipman, supra note 57, at 290.
68. See KISS & SHELTON, supra note 10, at 162.
83. See RICHARD E. BENEDICK, OZONE DIPLOMACY NEW DIRECTIONS IN SAFEGUARDING THE PLANET 201 (1991).
84. Cameron & Werksman, supra note 82.