Federal Environmental Law Reforms Announced

The Federal Environment Minister has announced the Government’s response to the Independent Review of the EPBC Act, which will be implemented through legislative amendments in 2023. 

Snapshot

• National environmental standards will be a core feature of the amendments, with the initial five national environmental standards covering Matters of National Environmental Significance; First Nations Engagement and Participation in Decision-Making; Community Engagement and Consultation; Regional Planning; Environmental Offsets. Future national environmental standards will be for data management and compliance and enforcement.
• Regional planning is a focus on the reforms, with a “traffic light system” approach to be implemented to development.
• An independent EPA will be established, whose function will include assessments and approvals, and compliance and enforcement. The approvals function will be subject to the Minister’s right to “call in”.
• There is no separate “climate trigger” identified, but project proponents will be required to publish expected scope 1 and scope 2 emissions, and disclose how their project aligns with Australia’s national and international obligations to reduce emissions.  Climate change will be a mandatory consideration in environmental plans (such as regional plans and strategic assessments).

Response to the Samuel Review

The Federal Environment Minister has released the Government’s response to the independent statutory review of the Environment Protection and Biodiversity Conservation Act 1999 (EPBC Act), which was finalised by Professor Graeme Samuel, AC in October 2020.

The response covers a broad range of issues raised with the EPBC Act, from assessment processes, the treatment of climate change, the “water trigger”, regional assessments, data management and compliance and enforcement.

Some of the detail of the proposed reforms, such as how assessment processes are to be changed, and what the reforms mean for existing projects, are unclear, and will need to be dealt with through the legislation.

We have set out below some of the key reforms flagged in the Government response:

National environmental standards will be introduced
The legislation will provide for the making, amendment and application of “National Environmental Standards” (NES).

The first NES to be prepared is for “Matters of National Environmental Significance” which is intended to be released when the legislation is introduced to Parliament.

The other priority NES are:

• First Nations engagement and participation in decision-making – designed with the Indigenous Advisory Committee to capture cultural heritage considerations;
• Community engagement and consultation – to improve public access to information and opportunities for the public to provide feedback in project development;
• Regional planning – to provide regional plans and identify conservation priorities and prohibited development impacts;
• Environmental offsets.

Further NES for data and compliance and enforcement will be developed in time.

Compliance with the NES will be required in the event that States or Territories seek to have approvals processes accredited (ie the “single touch approvals”). 

Any new project will be required to comply with the NES, which the Government Response acknowledges will be easier once regional plans are in place.

Environmental offsets will be reformed
Environmental offsets will have a new hierarchy, being:

• avoid harm to the environment; 
• reduce or mitigate environmental damage;
• identify offsets within the region that deliver a net gain for imperiled plants or animals;
• make a conservation payment to enable a better overall environmental outcome. 

The conservation payment is a new concept for the EPBC Act, but operates in some States already.  The payment is designed to provide the “right financial incentives” to encourage proponents to avoid and reduce environmental impacts, and represent the cost of like-for-like habitat restoration (including land value) and management plus a premium to address risks and ensure an overall environmental benefit.  There is a suggestion that offsets may interact with the nature repair market (below) but the details of that interaction remain to be seen.

The Nature Repair Market will be legislated 
Government has previously announced that it will implement a “nature repair market” or biodiversity credits scheme, which is intended to operate in parallel with the carbon market and be regulated by the Clean Energy Regulator.  The legislation will provide for the nature repair market, and provide a framework for measuring, monitoring, reporting, verifying and publicly tracking biodiversity projects. 

Climate change will have a role in the EPBC Act
Project proponents will be required to publish their expected Scope 1 and Scope 2 emissions.  The Government Response does not address Scope 3 emissions.

Proponents will be required to disclose how their project aligns with Australian’s national and international obligations to reduce emissions.

Climate change will also be a mandatory consideration in what are described as “environmental planning approaches” which appears to include regional plans, strategic assessments and species threat abatement plans.

The “water trigger” will be expanded
Contrary to the recommendation of the Samuel Review, Government proposes to expand the water trigger so that it applies to all forms of unconventional gas (it currently applies to large coal mining and CSG projects).  The reforms will also provide for an expanded scope and access to the Independent Expert Scientific Committee, and recognition of existing State and Territory water management systems to prevent duplication.

Regional planning has a key role to play
Regional planning is a critical component of the Government response.  Although it is likely to be a longer term output, the regional planning process would be designed to take account of cumulative impacts, as well as climate change considerations, and provide a streamlined approvals process.

Regional planning will be designed to operate on a “traffic lights system” across three zones:

• Areas of High Environmental Value, where development will be largely prohibited. These areas will include World Heritage Areas, National Heritage Places, Ramsar Wetlands and critical habitat.  These areas are intended to operate as an “early no” for projects;
• Areas of Moderate Environmental Value, where development will be allowed subject to approval and compliance with agreed rules;
• Development Priority Areas, where the regional planning process has determined that development can proceed without Commonwealth approval (although the usual State and Territory and local government approvals would still apply).

Queensland has announced an MOU with the Commonwealth to work on three initial regional (call bioregional plans for Queensland) for South East Queensland, renewable energy and rare minerals.

Other administrative amendments
There are a range of other administrative and process changes proposed, including:

• standardisation and update of public comment processes;
• decision making information is to be clarified;
• greater clarity is to be provided on social and economic impacts, including mandatory guidelines for identifying and quantifying social and economic impacts;
• process information is to be moved to regulations or guidelines to enable “faster and more efficient maintenance of the regulatory system”. The extent of what is considered “process information” is unclear;
• referrals will not be required for proposals that clearly require assessment;
• there is to be rationalisation of the existing 6 assessment processes in the EPBC Act;
• advisory committees will be reviewed.

Next steps

Legislation to implement the reforms will be developed over the first half of 2023, with Government indicating that an exposure draft for consultation will be released.  The legislation is expected to be introduced to Parliament in late 2023.

Consultation will also be undertaken on the national environmental standards, the independent EPA and other aspects of the legislation.

By Peter Briggs, Kathryn Pacey, Melanie Debenham, Heidi Asten and Allira Jeffery