New environment protections announced to fix Australia’s ‘broken’ environmental laws
By Meg Lee and Luke Denham
The Federal Government has committed to reforming the Environment Protection and Biodiversity Conservation Act 1999 (Cth) (EPBC Act) in response to the 2020 review by Professor Graeme Samuel into the failings of the EPBC Act (Samuel Review), which stressed the lack of public and industry confidence in the regime’s current form. This is the first overhaul of the EPBC Act since its inception.
The broader context for these reforms is the commitment by the Government to net zero by 2030 as now enshrined in the Climate Change Act 2022 (Cth) as well as the very recent commitment at COP15, the United Nations Biodiversity Conference, to protect 30% of Australia’s land and seas by 2030. These two commitments will be implemented through a series of strategies that form the basis of the reform package and include:
- the establishment of a nature market to measure biodiversity and issue certificates for projects;
- the establishment of an independent Federal Environment Protection Agency (EPA); and
- the involvement of First Nations people in developing National Standards (Standards) for projects.
Summary of the reform proposals
The Federal Government’s response to the Samuel Review and its proposed reforms are detailed in the Nature Positive Plan: better for the environment, better for business (Plan).
The Plan is guided by three principles:
- delivering better environmental protection and laws that are nature positive;
- speeding up decisions and making it easier for companies to do the right thing; and
- restoring integrity and trust to the EPA and environmental laws.
Probably the biggest structural change in Australia’s environmental laws since the passing of the EPBC Act is the proposed Federal EPA. It will be tasked with enforcing compliance under the proposed legislation, holding proponents to account for their information and undertakings. The EPA will have regular public reporting requirements. The entity will also be responsible for verifying the operations of states, territories and other Commonwealth decision-makers under the accreditation arrangements.
The EPA’s responsibilities will extend across Wildlife trade regulation; Sea Dumping; Ozone and Synthetic Greenhouse Gas Management; Hazardous Waste; Product Emissions Standards; Recycling and Waste Reduction; and Underwater Cultural Heritage Acts.
Other key reforms include:
- emissions reductions: proponents will need to disclose how their project aligns with Australia’s national and international obligations to reduce emissions. The Government will require proponents to publish their expected Scope 1 and 2 emissions.
- Indigenous Advisory Committee: the amendments will establish an Indigenous Advisory Committee (Committee) enhancing First Nations’ voices on environmental protections. Cultural heritage and First Nations’ interests identified in projects would be prioritised and engaged. However, it is not yet clear how the Committee will be established and implemented.
- referral process reform: overly prescriptive processes and duplication in conservation and management planning for species, communities and heritage will be reworked. For instance, proposed developments that clearly require a detailed assessment will proceed to assessment without needing to go through the Referral process which will reduce overall processing time.
- water trigger: the trigger assesses the impact of coal and seam gas projects on water resources. This trigger will be expanded to apply to regional forest agreements and include unconventional gas such as Shale and Tight. Decisions regarding the trigger will be supported by independent expert advice and industry consultation will take place.
- nuclear power: the Government intends to unify regulatory requirements and codes regarding nuclear power. The national environment law will be compatible with the radiation management standard of the Australia Radiation Protection and Nuclear Safety Agency.
- standards: the Standards are proposed to be developed to standardise decision-making under the EPBC Act. The Standards are intended to provide predictability and clarity. Consultation will commence on this change as, once adopted, the Standards will only be amended if they improve environmental protection.
- accreditation: currently, states and territories are accredited to undertake project assessments on behalf of the Commonwealth. To gain accreditation under the proposed legislation, compliance with Standards and full transparency of environmental performance data and decision making will be required. The EPA will assure accredited parties continue to satisfy the accreditation, however it is not clear how this will exactly operate.
- regional plans (Plans): Plans will identify priority areas for action and investment, ensuring Australia meets its biodiversity target of stopping the decline of native plants and animals by 2037. The Plans will determine where development can and cannot occur in certain regions. It can be used to speed up decision-making while delivering nature-positive outcomes. Accreditation and Plans will provide certainty and clarify conservation priorities.
- environmental offsets: while offsets are designed to prevent environmental decline, they are not regularly enforced or maintained, and do not properly compensate for loss of habitat or heritage values. Project proponents will need to demonstrate their attempt at avoiding and mitigating harm before resorting to environmental offsets. Where a reasonable offset cannot be secured, a conservation payment sufficient to achieve a net-positive environmental outcome will be required.
- market: a ‘nature repair market’ will be established to make it easier for businesses to invest in nature restorative activities. Currently, businesses must buy land or enter contracts with landholders. While the proposed market will operate separately to the offset system. The market will include biodiversity projects’ registrations, certificates for approved sites and compliance systems.
- data division: a new data division in the Department of Climate Change, Energy, the Environment and Water will be established. The Data Division is proposed to be a high-quality and authoritative source of environmental information which will be available to the public.
- confidence: restoring public confidence is to be achieved through the Data Division and independent reporting on the EPA. Further, the Government is not introducing a right for third parties to seek merits review of decisions under the EPBC Act. The right was recommended for limited circumstances in the Review. The Government has not responded directly to this.
Commentary on the reform
Environmental groups have welcomed the reforms, citing the proposed independent EPA as a restorative practice for the environmental decision-making process. However, some groups believe the reforms do not go far enough given the absence of any ‘climate trigger’, which would see large emitters requiring approval under the EPBC Act and assessment of their contribution to climate change. Conversely, mineral industry groups are concerned that the power of the EPA will lead to slower investment in Australian projects.
An exposure draft of the legislative changes will be released in the first six months of 2023 and the legislation is expected to be prepared before the end of 2023. Stakeholder consultation will commence next year on the bill and the draft Standards. Support from the Greens or crossbench will be needed by the Government to pass the laws in the Senate.
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