Draft EPBC National Environmental Standards released

The Commonwealth government has released draft National Environmental Standards (NES) for Matters of National Environmental Significance (MNES).

Snapshot

• Despite claims that the draft NES are intended to reflect the current state of the Environment Protection and Biodiversity Conservation Act 1999 (Cth) (EPBC Act), a number of existing facets of the EPBC Act are not included, such as the requirement to consider cumulative impacts.
• This does not mean, however, that proponents will be excused from having regard to existing considerations under the EPBC Act, notwithstanding that they do not appear in the draft NES.
• As the draft NES are intended to reflect the current state of the EPBC Act, they also do not adopt the full ambit of the recommended NES proposed in the Final Report of the Independent Review of the EPBC Act (Independent Review).
• The draft NES will not be enforceable until the Environment Protection and Biodiversity Conservation Amendment (Standards and Assurance) Bill 2021 (Cth) (Standards and Assurance Bill) is passed.

Commonwealth releases draft NES

The Commonwealth has released “final draft” NES for MNES.

The draft NES are currently unsigned by environment Minister Sussan Ley and will not come into effect until the Standards and Assurance Bill has been passed.

If the draft NES become enforceable in their current state, they will be subject to review within two years of commencing (see proposed section 65G(1) of the Standards and Assurance Bill).

The draft NES are not open for comment.

NES intended to support “single touch” agreements

The Department of Agriculture, Water and the Environment has stated that the draft NES are intended to better facilitate single touch approval arrangements with States and Territories by ensuring that the “same rules apply, regardless of whether an approval decision is made by the Australian Government or a state or territory”.

Notwithstanding this intention, the draft NES distinguish between requirements for:

• “environmental assessment and approval decisions, bilateral agreements, and arrangements and processes”; and
• “bilateral agreements and arrangements and processes”.

This is in contrast to the NES proposed in the Independent Review, which were intended to apply to “actions, decisions, plans and policies” under the EPBC Act.

NES diverge from recommended NES in Independent Review

The draft NES have do not include key aspects of the NES proposed in the Independent Review. Changes include:

• removing all requirements to consider cumulative impacts on MNES;
• removing the requirement for actions and decisions relating to MNES to reflect the international law principle of non-regression (being the principle that seeks to prevent any weakening of environmental protections once made);
• deleting the requirement to implement plans for monitoring and evaluating the outcomes of actions on MNES;
• removing the requirement to have regard to “best available information” when making decisions on MNES;
• removing the requirement to maintain and improve habitat for migratory species;
• deleting the requirement for “ecologically feasible” biodiversity offsets; and
• amending the requirement to “prevent detrimental change to the ecological character” of Ramsar Wetlands to a requirement that actions are not to be approved if they would be “inconsistent with maintaining the ecological character” of Ramsar Wetlands.

Of particular note, the draft NES for the Great Barrier Reef do not adopt any aspects of the recommended NES in the Independent Review.

Implications of the draft NES

The draft NES do not adopt a number of aspects of the NES proposed by the Independent Review. Despite claims that the draft NES are intended to reflect the current state of the EPBC Act, a number of existing facets of the Act are not included. By way of example, the draft NES do not make any mention of considering cumulative impacts on MNES (as is currently required under the EPBC Act (see Queensland Conservation Council Inc v Minister for the Environment and Heritage [2003] FCA 1463 (Nathan Dam case)),  and was proposed to be included in the NES in the Independent Review). But this does not mean that proponents will be excused from having regard to these considerations under the EPBC Act.

The introduction of the draft NES will likely provide an opportunity for decision makers to test key tenets of the Act (such as cumulative impacts) and may lead to the development of new legal precedent around these issues. This would, however, run contrary to one of the aims of the Independent Review, being to reduce so-called “lawfare” arising from challenges to decisions made under the EPBC Act.

Next steps

The draft NES can be viewed here.

By Peter Briggs, Partner, Heidi Asten, Partner, Melanie Debenham, Partner, and Brigitte Rheinberger, Solicitor.