19 projects under the EPBC Act the subject of reconsideration requests

The Environment Council of Central Queensland has submitted reconsideration requests for 19 projects under section 78A of the Environment Protection and Biodiversity Conservation Act 1999 (Cth) (EPBC Act). The projects are all coal and gas projects, principally but not exclusively in Queensland, that are currently undergoing assessment under the EPBC Act.

Section 78A of the EPBC Act allows a person to request the Commonwealth Environment Minister to reconsider a decision about whether an action is a controlled action, and the controlling provisions for the action.

The assessment process under the EPBC Act continues unaffected by the request, subject to the outcome of the reconsideration.

Once a request is received under section 78A of the EPBC Act, the Minister must invite comments from:

• the designated proponent;
• any other Commonwealth Minister who the Environment Minister has administrative responsibility relating to the request; and
• the appropriate State or Territory Minister.

The Minister must also publish the request on the internet and invite anyone to give comments in writing with a 10 business day consultation period.

The requests lodged are based on the revocation and substitution of the original decisions being warranted by the available of “substantial new information” that the projects have, will have or are likely to have on a matter of national environmental significance. The information relates to evidence of climate change, the Black Summer bushfires and consequential impacts on matters of national environmental significance under the EPBC Act including listed threatened species, listed migratory species, Ramsar wetlands, World heritage places and Commonwealth marine areas.

We understand that the Commonwealth Department is currently analysing whether the requests meet the requirements for a reconsideration request. If valid, the Environment Minister will then need to proceed through the consultation process outlined above, and decide whether to confirm the original decision, or revoke the original decision and substitute a new decision. Regardless of the outcome, we anticipate the decisions may result in further litigation about the role of climate impacts in decision making under the EPBC Act.

By Peter Briggs, Partner, Kathryn Pacey, Partner, Melanie Debenham, Partner, Heidi Asten, Partner, Jay Leary, Partner, Melissa Swain-Tonkin, Partner, and Sian Newnham, Partner.