Proposed reforms to Australia’s domestic environmental laws are likely to increase the effectiveness of the EPBC Act by reducing the “green band” and regulatory overlap. This will provide greater certainty for proponents and proponents of long-term approval timelines. However, significant questions remain about how national environmental standards will be implemented and whether the reforms will address Australia’s current trajectory of environmental decline.
EPBC Act Review Process
In February 2021 Professor Graeme Samuel AC tabled a final report in Parliament (the Samuel Report), concluding the second review of the operation of the Environment Protection and Biodiversity Conservation (Cth) Act 1999 ( EPBC law).
The 18-month review process included various opportunities for stakeholders to submit comments. Our team contributed to the public tender process through their involvement with the Property Council of Australia (PCA). Our contribution to the APC submissions focused on reducing regulatory duplication, which is a critical area for reform.
Shared Legislative Responsibility, Regulatory Overlap and Green Ribbon
In Australia, the Commonwealth and state and territory governments share responsibility for the development and enforcement of environmental laws. The Commonwealth has a specific and limited role in environmental regulation, leaving the state and territories responsible for all other environmental regulation. Each jurisdiction has its own approach to environmental regulation. This leads to regulatory overlap, where multiple agencies at different levels of government are engaged in similar, if not misleading, environmental regulatory processes.
The EPBC Act is Australia’s main national piece of environmental legislation. It primarily acts to protect nine Matters of National Environmental Significance (MNES). The MNES covers Australia’s international environmental obligations and includes a range of issues including threatened species and listed ecological communities, nuclear actions including uranium mining, and water resources in relation to the development of coal gas and the development of large coal mines.
Under the EPBC Act, a Commonwealth Environmental Approval is required where an action is a “controlled action”, i.e. it is likely to have a significant impact on one of the DEMs. Sometimes this means developers and proponents find themselves going through multiple layers of the environmental impact assessment and approval process and require multiple approvals to move the proposed project forward. This can be described as an unnecessary “green band” as it leads to regulatory overlap, as the same project requires double approval, often on the same environmental factors or related environmental factors.
Existing bilateral agreements
In practice, bilateral accreditation agreements are used to assess projects that require multiple environmental assessments and approvals. Bilateral agreements are in place between the Commonwealth and the state and territory governments. They enable state environmental regulators, such as the Western Australia Environmental Protection Agency, to conduct an environmental assessment of the relevant MNES using the state process and provide its recommendations to the two ministers. , who then make their separate approval decisions.
However, bilateral accreditation agreements are not in place in all states and territories and vary from jurisdiction to jurisdiction. This means there is no consistent national approach and the current system may be ineffective. Different levels have competing approaches to the same problem or environmental concern, which can further compound this difficulty. Currently, some of the critical areas of overlap include endangered species listings, processes for determining compensation regimes, government approvals and reporting requirements, and national resource management programs.
Conclusions and recommendations of the Samuel report
The Samuel Report made drastic conclusions about the state of Australia’s environment, finding that it is in a general state of decline, increasingly under threat and has not the resilience needed to withstand current emerging and future threats, including climate change. Ultimately, the Samuel Report revealed that the EPBC Act is outdated and in need of fundamental reform to reverse the current trajectory of environmental decline and enable the Commonwealth Government to meet its national and international responsibilities for managing the environment. To achieve this goal, it made 38 recommendations for reform.
The Samuel Report revealed that the EPBC Act is complex, making it difficult, time-consuming and costly for stakeholders to understand their legal rights and obligations. This leads to confusion and inconsistent decision-making, which creates unnecessary regulatory burdens for businesses while restricting access to justice. According to the Samuel report, a systematic overhaul of the EPBC law is necessary. Vital reforms are recommended, including the immediate implementation of legislative amendments to address known inconsistencies, gaps and conflicts and the overhaul of the law to enable the implementation of recommended policy reforms. In accordance with the Intergovernmental Agreement on the Environment (IGAE), the EPBC Act should be drafted to facilitate harmonization with state and territory regulations to provide the recommended standards-based accreditation framework.
Pertinently, the Samuel Report recommended that the EPBC Act be immediately amended to provide the confidence to accredit state and territory arrangements to issue single short-term environmental approvals. Another key recommendation from the Samuel Report relevant to regulatory overlap is Recommendation 3, which is that the EPBC Act should be immediately amended to allow for the development and implementation of legally enforceable National Environmental Standards (NES). The underlying idea would be that the Act be amended to require that the activities and decisions made by the Minister under the Act, or those made under an approved agreement, such as an approved bilateral agreement, comply with the NES. If enacted, these reforms will likely reduce regulatory duplication and strengthen national consistency.
Implementation of recommendations
Two bills amending the EPBC Act are currently before Parliament. If the bills pass, it will implement some of the findings of the Samuel Report aimed at reducing regulatory duplication and the “green band”.
1. Environmental Protection and Biodiversity Conservation (Streamlining Environmental Permits) Amendment Bill 2020
This bill proposes to amend the EPBC Act to expand and clarify state and territory environmental approval powers through bilateral agreements (to create single environmental approvals). If adopted, these changes could significantly reduce regulatory duplication and improve national consistency.
However, a potential limitation of this bill is that it was introduced in Parliament before the Samuel Report was tabled; as such, it does not benefit from the extensive stakeholder consultation undertaken as part of the EPBC Act review process. It is unclear how these changes will fit in with other changes aimed at reducing regulatory duplication, including the development and implementation of the NES.
2. Environmental Protection and Biodiversity Conservation (Standards and Assurance Bill) Amendment 2021 (Cth)
This bill proposes to amend the EPBC Act to establish a framework for the creation of NES and the creation of an Environmental Assurance Commissioner (Commissioner).
If passed, the implications will be that the NES will be established as a regulation of the EPBC Act, and the Commonwealth Environment Minister will have the power to amend or revoke the NES. The effect will be that the environmental assessment and approval process accredited under bilateral agreements must not be inconsistent with the ESS, and a person making a decision or taking an action under the EPBC Act must be satisfied that the decision or action is not inconsistent with the NDA.
Although on its face this would reduce regulatory overlap and improve the use of bilateral agreements, it could cause difficulties where there is a difference in approach between Commonwealth and State or Territory environmental laws. in matters where responsibility is shared, including with respect to endangered species. and compensation schemes. In the short term, this could lead to further delays in projects and a temporary increase in the “green band”, as the standards that the NES will replace could vary widely from jurisdiction to jurisdiction. However, once the ESS is established and applied over time, it will result in less regulatory duplication and greater certainty for project proponents.
It will be interesting to follow the evolution of these bills in Parliament and to see how the recommendations of the Samuel report translate into practical reforms of the EPBC law; and finally, whether these reforms will produce the desired result in reducing regulatory duplication and removing unnecessary red tape. It will perhaps be more interesting to see how this is received by the many stakeholders involved in the review process and the balance our new EPBC Act will strike between reducing green bureaucracy and encouraging development while protecting Australia’s environment, which is in a dire state. of decline.
In addition to providing stand-alone strategic environmental advice, our Perth team also works closely with our Australian corporate teams to provide due diligence on environmental issues and approvals. We advise on environmental legal risks both at the Commonwealth level, including matters arising under the EPBC Act, and at the State and Territory level in various jurisdictions. If you are concerned about the impact the proposed changes to the EPBC Act may have on your business or project in Australia, please contact our team.