Change on the cards for Australia’s environmental approval process

Late last year, Environment Minister Peter Garrett tabled the report of the Independent Review of the Environment Protection and Biodiversity Conservation (EPBC) Act.

The centrepiece is the proposed new Australian Environment Act, which would be a simplification and rewrite of the EPBC Act, and an integration of other Commonwealth environmental and indigenous heritage legislation.

If implemented, the new Act would have significant implications for the gas industry, especially offshore exploration, and onshore and offshore gas production and pipelines.

Matters of national environmental significance

The current EPBC Act requires an environmental impact assessment (EIA) and ministerial approval for projects that have or are likely to have a significant impact on specified “matters of national environmental significance”?.

The report recommends the inclusion of “ecosystems of national significance”? as a new matter of national environmental significance for which a project may need to be referred, assessed or approved. The ecological character of the listed ecosystem would be the matter protected by the EPBC Act.

There is much to be said for taking a holistic, landscape approach to the protection of natural ecosystems. However, this recommendation will not work unless the character of the listed ecosystem is also clearly articulated and defined at the time of listing.

Refinements to EIA processes

The report also recommends important changes to EIA processes. For example, it calls for the publication of criteria for EIA processes, and the subsequent accreditation of EIA state and territory processes where they meet these criteria.

It suggests streamlining and simplifying EIA methods by combining assessment of preliminary documentation and referral information, and entire removal of assessment by public environmental report.

Indeed, greater use of public inquiries and joint Commonwealth-state/territory assessment panels for major projects is an important recommendation, as there has not been a public inquiry under the EPBC Act since it commenced.

The report urges development of an industry code of conduct for consultants, enforced either by the Australian Competition and Consumer Commission or by the Federal Department of Environment, Water, Heritage and the Arts, under a suite of proposed audit and enforcement powers.

Climate change

The report recommends introducing an interim greenhouse trigger, with a threshold of at least 500,000 tonnes of CO2-e emissions, by way of regulations. The trigger would sunset upon commencement of the Carbon Pollution Reduction Scheme (CPRS).

The difficulty with this recommendation is that it does not clarify what the minister is obligated to have regard for or protect if a project exceeds the greenhouse trigger.

This recommendation needs more consideration, though the report does propose that the minister be obliged to consider cost-effective climate change mitigation opportunities as part of strategic assessments and bio-regional planning processes.

Appeals and access to the courts

Currently, decisions can be subject to judicial review proceedings in the Federal Court on legal issues only. They are not subject to merit review by the Administrative Appeals Tribunal.

The report makes a number of important recommendations on these matters, aimed at reducing the barriers to public interest litigants who challenge the validity of administrative decisions in the courts.

Many other important issues are canvassed by the report but are too numerous to list here. The Federal Government’s response would suggest any revisions are unlikely to occur for some time.

Nevertheless, the report is likely to constitute the benchmark against which new legislation may be introduced shortly before – or perhaps after – the next federal election.

Tim Power is a partner at Freehills.

Leave a Reply

Send this to a friend