New Government, new Minister, new Federal environmental laws?

Going into the recent Federal election, the Australian Labor Party committed to:

• establishing an independent Environment Protection Agency (EPA); and
• providing a full response to the review of the Environment Protection and Biodiversity Conservation Act 1999 (Cth) (EPBC Act) undertaken by Professor Graeme Samuel AC (Samuel Review).

With the new Ministry now sworn in, we look at what changes these commitments might bring.

The EPBC Act

Except for Commonwealth agencies and Commonwealth land, most projects only interact with the EPBC Act where the project is likely to have a significant impact on a matter of national environmental significance (MNES). The MNES are largely based on international conventions and agreements to which Australia is a party, providing the constitutional power for the Commonwealth to legislate in respect of those matters.

The MNES under the EPBC Act are:

• world heritage properties;
• national heritage places;
• wetlands of international importance (Ramsar Wetlands);
• listed threatened species and communities,
• Listed migratory species;
• nuclear actions;
• Commonwealth marine areas;
• the Great Barrier Reef Marine Park; and
• the protection of water resources from coal seam gas development and large coal mining development.

The Samuel Review

The Samuel Review was the second 10-year review of the EPBC Act, which is required under s 522A. Like the Samuel Review, the first review undertaken by Dr Allan Hawke in 2009 resulted in a number of recommendations for significant changes to the operation and administration of the EPBC Act.

Despite two independent reviews of the EPBC Act, as well as numerous Parliamentary Inquiries, Productivity Commission Research Reports, Australian National Audit Office Reports and commentary on the difficulties with the EPBC Act, it has not been substantially amended since it commenced in July 2000.

Like its predecessor reports, the Samuel Review struggled to find positive things to say about the EPBC Act, with page 1 of the report stating that the EPBC Act:

• is outdated and requires fundamental reform;
• does not enable the Commonwealth to effectively fulfil its environmental management responsibilities to protect nationally important matters;
• results in piecemeal decisions; and
• is a barrier to holistic environment management.

The new Government has committed to a response to the Samuel Review, and to ongoing consultation on law reform.

The Samuel Review was presented as a package of 38 recommendations that was not designed to be “cherry picked”. That package comprised 3 tranches of reforms that were directed at developing national environmental standards, improving efficiency and trust in the EPBC Act, collection and sharing of data, improved compliance and enforcement and an emphasis on First Nations involvement in decision making and stronger protection for cultural heritage. A key focus of the recommendations was on landscape or regional planning, accounting for cumulative impacts, identifying new and emerging threats and providing greater certainty and efficiency in the EPBC Act.

In response to the Samuel Review, the previous Government had introduced legislation to establish an Environment Assurance Commissioner and to give effect to a framework for national environmental standards, however that Bill had not passed both houses on the calling of the election.

Assurance and independence

The Samuel Review advocated for the immediate establishment of an “Environment Assurance Commissioner” to oversee decision making by the Commonwealth, undertake a performance audit function and carry out public annual reporting on performance against National Environmental Standards.

The Samuel Review also recommended assigning independent compliance and enforcement powers to an Office of Compliance and Enforcement within the Department, along with regulatory review and adequate resourcing.

Both of these functions were recommended to increase transparency and trust in the administration of the EPBC Act, and improve compliance outcomes.

Data

The Samuel Review recognised that good data underpins good decision making, and included recommendations for providing best available evidence, access to data and a data custodian to provide stewardship and coordination of data. Good data also increases reliability and efficiency of environmental assessment studies.

The new Government has committed to an independent EPA

The new Government has committed to establishing an “independent Environment Protection Agency” and to “consult widely with industry and other relevant stakeholders to develop an appropriate and efficient sector-contribution funding model”. The pre-election commitments included that the EPA will have two divisions:

• compliance and assurance; and
• environmental data information and analysis.

This seems to be combination of the Environment Assurance Commissioner and the data custodian recommended by the Samuel Review. We expect that the funding model will result in a revision of cost recovery provisions under the EPBC Act.

Priorities

Having worked with the EPBC Act for most of its life, we think there are five key priorities that could be implemented relatively quickly to improve the operation of the EPBC Act and its environmental outcomes:

Review the MNES – the list of MNES should be reviewed with a view to reducing duplication with State regimes. The Samuel Review recommended the “water trigger” be revised to apply to cross border management, rather than being limited to specific industries. The MNES should also be considered in the context of increased protection of cultural heritage and whether climate change considerations should be included in the EPBC Act.

Make regional planning work better and faster – the biggest potential win to making the EPBC Act work better – both to protect the environment and provide certainty – is to have regional planning assessments that work. Including an ability to amend regional assessments, ensure regional assessments can be limited to particular MNES or particular projects (and linked to species recovery plans), and ensuring they are focused on the highest priority regions has the potential to identify “no go” zones, identify offset and conservation areas of focus, and allow for a more strategic evaluation of where projects should be located.

Provide greater certainty in decision making criteria – the decision making criteria and the level of discretion in the EPBC reflects that the decision is made at the Ministerial level. Decision making criteria that is more certain (as suggested by the Samuel Review through the national environmental standards) provides an avenue for greater predictability in decision making, assessment documents that are focused on the decision making criteria and better consistency across decisions.

Review the offsets regime – the offsets regime under the EPBC Act is an important component of many approval decisions, and predictability in costs, timing and outcomes is important to project proponents, environmental outcomes and the Department’s ability to measure compliance. The offset regime is old, based on a project-by-project assessment and does not encourage strategic and co-location of offsets that could improve environmental outcomes. The interaction of EPBC Act offsets with other offset regimes (e.g. carbon) could be reviewed to provide for greater certainty in returns, uplifted co-benefits and increased rigour around an “advanced offsets” regime.

Facilitate strategically important projects – the Government’s net zero commitments, and continued development pressures, mean that there will be some strategically important projects that should not be held up in long and complex approvals processes. While regional planning work (for example around renewable energy zones) can help provide certainty, strategic balancing of policy will be required to facilitate projects that deliver broader environmental and economic commitments. A more streamlined regime, and elevated consideration of social and environmental criteria be implemented for projects that are identified as strategically important to the regional or national interest.

Moving forward

There is no doubt that the EPBC Act would benefit from a detailed overhaul, which may include dividing the legislation, fundamentally reforming its processes and deep analysis of legislative options to improve its operation.

While that is a worthwhile exercise, and one that should be undertaken, it is a long-term, large scale legislative and administrative project.

In the interim, there are environmental protection and project development needs that can be addressed by more immediate and short term fixes to the EPBC Act, and these should be the first considerations of a new government, with a new focus on net zero, the environment and economic outcomes.

By Kathryn Pacey, Partner, Peter Briggs, Partner, Heidi Asten, Partner, and Melanie Debenham, Partner.