NSW EPA releases a new regulatory strategy for comment

The NSW Environment Protection Authority (EPA) has released a draft regulatory strategy (Strategy) for public consultation. The Strategy will be one of a suite of new policies to be released by the EPA this year.

Snapshot

• The EPA will maintain a risk-based approach to regulation and compliance, seeking to focus on activities which are most likely to cause the greatest harm to the environment and human health.
• The Strategy takes a broad, outcomes-focused approach to regulation, emphasising the use of ‘soft’ regulatory activities to encourage compliance including influencing other regulators to support environmental protection and education and awareness campaigns.
• The Strategy is open for comment until 31 March 2021.

Risk-based and outcomes-focused approach

Consistent with the EPA’s current approach to regulation (as set out in its Compliance Policy (2013)), the Strategy adopts a ‘risk-based’ approach to regulatory actions. That is, the EPA seeks to focus on those activities that are most likely to cause the greatest impact on the environment and/or human health.

The Strategy also confirms that the EPA is outcomes-focused and will work with communities, industry, co-regulators and other government agencies to protect the environment and human health.

Broadening the scope of the EPA’s purpose

The Strategy establishes broad principles, closely aligned to the EPA’s purpose and functions in section 6 of the Protection of the Environment Administration Act 1991 (NSW) to guide regulation.

These guiding principles include:

• ecologically sustainable development (ESD);
• precautionary principle;
• inter-generational equity;
• conserving biodiversity;
• encouraging businesses to include environmental factors in cost of goods and services;
• polluter pays principle;
• risk-based approach;
• using evidence as the basis for decisions and actions; and
• using data and insights to inform policies, programs and actions.

The new Strategy also outlines the actions the EPA will take in carrying out its regulatory functions. The Strategy emphasises ‘soft’ measures to encourage compliance, including:

• “influencing” stakeholders (including other regulators such as local governments) to encourage environmental protection; and
• “enabling” stakeholders to protect the environment and human health through education and awareness programs.

Key challenges for the EPA

The Strategy identifies a number of regulatory challenges for the EPA, including:

• protecting human health;
• degradation of the environment;
• ESD;
• reducing waste;
• climate change; and
• environmental crime.

These challenges are likely to inform the EPA’s regulation and prosecution priorities, in particular building on recent trends of the EPA focusing on waste and related environmental crimes.

Next steps

The Strategy is open for comment until 31 March 2021. The Strategy can be found here.

The Strategy will sit under a new strategic plan for the EPA, due to be released in mid-2021. The Strategy will inform a new Regulatory Policy (also set to be released in mid-2021).

By Peter Briggs, Partner, Tom Dougherty, Senior Associate and Brigitte Rheinberger, Solicitor.

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