Key takeaways
- The State will no longer apply conditions to reduce net greenhouse gas emissions. The Minister will initiate a section 46 condition amendment process for existing Ministerial Statements containing such conditions.
- To address residual uncertainty, a standard condition will be applied imposing a notification obligation on proponents, in the event of a substantial change to its obligations under the Safeguard Mechanism.
- Acknowledging the independence of the Environmental Protection Authority (EPA), it is the State Government’s expectation that greenhouse gas (GHG) emissions will not be assessed where regulated by other mechanisms (i.e. the Safeguard Mechanism).
What is the Policy?
The Western Australian EPA assesses proposals referred to it under Part IV of the Environmental Protection Act 1986 (EP Act). This has included an assessment of the impact of GHG emissions. The EPA currently assesses GHG emissions and recommends conditions of approval pertaining to GHG emissions in accordance with the environmental factor guideline on GHG emissions (see HSF Blog Post).
The new GHG Emissions Policy for Major Projects (Policy) impacts EPA assessment and condition-setting for Ministerial Statements. The Policy recognises recent reforms to the Commonwealth’s Safeguard Mechanism, which have established a national approach to reducing GHG emissions for facilities with emissions over 100,000 tonnes per annum of carbon dioxide equivalent (see HSF Blog Post). The Policy is aimed at supporting the Government’s commitment to net zero emissions, while avoiding duplication with other regulatory schemes, such as the Safeguard Mechanism. This is in line with recommendations of the Vogel-McFerran Review which highlighted the ‘duplicative nature of the state and commonwealth conditions for [GHG] emissions’.
The Policy is intended to apply to new and existing major projects with GHG emissions that are assessed by the EPA. Where a proposal is subject to alternative regulatory measures regarding GHG emissions, the State will no longer apply conditions to reduce net GHG emissions. A standard condition will be applied requiring proponents to notify the State of a ‘substantial change’ to its obligations under the Safeguard Mechanism. The form of the standard condition has not yet been released. Where changes to regulation occur at the Commonwealth level, State limits may be restored.
In line with this Policy, the State expects that the EPA will no longer assess emissions dealt with by other regulatory measures.
What happens next?
The WA Government has published an FAQ alongside the new policy.
We expect the EPA will consider the new Policy and continue to explore practical ways to minimise overlap and avoid duplication with existing frameworks for proposals assessed under Part IV of the EP Act.
Substantive GHG emissions obligations will be removed from existing approvals in due course. The State Government will conduct a review of existing Ministerial statements under section 46 of the EP Act to update requirements with the new policy. Practically, this should mean there will no longer be a need to prepare and implement greenhouse gas management plans, report emissions to the State or comply with any of the other requirements set out in the usual condition set that has been applied over the past couple of years.
The State Government has stated that this Policy does not impact their action to decarbonise the WA economy, and commitment to achieve net zero emissions by 2050. The State expected that the Safeguard Mechanism will deliver outcomes consistent with those achieved currently by conditions applied under the EP Act.
If you would like to discuss how the Policy might impact your environmental approvals or business, please contact us.
Written by Melanie Debenham (Partner), Naomi Hutchings (Executive Counsel) and Bella Mairata (Paralegal).
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The articles published on this website, current at the dates of publication set out above, are for reference purposes only. They do not constitute legal advice and should not be relied upon as such. Specific legal advice about your specific circumstances should always be sought separately before taking any action.