The Commonwealth and Western Australian Governments have entered into a new Assessment Bilateral Agreement, to commence 1 January 2015. The new agreement accredits WA's EIA process under the Environmental Protection Act 1986 (WA) (EP Act), as suitable to fulfil the Commonwealth's own EIA assessment function under the Environment Protection and Biodiversity Conservation Act 1999 (Cth) (EPBC Act). The new agreement represents progress towards an integrated 'one-stop-shop' for EIA and approvals under Commonwealth and State legislation
Federal and Western Australian EIA processes
Western Australia's EIA process, under the EP Act, is conducted by the State's Environmental Protection Authority (EPA). The EIA process under the EP Act applies to proposals that may have an environmentally significant impact. The Commonwealth EIA process, under the EPBC Act, is conducted by the Commonwealth Environment Minister. It is triggered where a proposal includes a "controlled action", that is, an action that will have, or is likely to have, a significant impact on a matter of national environmental significance. The controlled actions must be assessed and either approved, approved subject to conditions, or refused by the Commonwealth Minister.
When triggered, the Commonwealth EIA process runs parallel to Western Australia's EIA process, meaning two approvals are required. However, with a bilateral agreement in place, the proponent can avoid duplication by undertaking a single assessment process, because the Commonwealth can rely on the assessment undertaken by WA's Environmental Protection Authority. All States and Territories have signed similar bilateral agreements with the Commonwealth to accredit State and Territory EIA processes.
The first assessment bilateral agreement between the Commonwealth and Western Australia commenced in March 2012. It accredited WA's Public Environmental Review (PER) level of assessment only. The PER level of assessment applies to proposals that: are of regional or State-wide significance, which have some complex or strategic environmental factors or issues, which require a substantial and detailed assessment to determine if the environmental issues can be managed or where the level of public concern warrants a public review.
New Assessment Bilateral Agreement
The new bilateral agreement is the second revision to be implemented and has a much wider scope than the previous versions. Under the new agreement, the Commonwealth has accredited WA's Assessment of Proponent Information (API) category A level of assessment. The API level of assessment applies where the proponent has provided sufficient information for the environmental acceptability or unacceptability of the proposal to be apparent at the referral stage. In these circumstances, a public review is unnecessary because the proponent has already consulted the relevant stakeholders.
API category A applies to proposals that are likely to be acceptable because they meet the following criteria:
- the proposal raises a limited number of key environmental factors that can readily be managed and for which there is an established condition setting framework
- the proposal is consistent with established environmental policies, guidelines and standards
- the proponent can demonstrate that it has conducted appropriate and effective stakeholder consultation, and
- there is limited or local concern only about the likely effect of the proposal, if implemented, on the environment.
API category B, which is not accredited under the Assessment Bilateral Agreement, applies to proposals that are likely to be unacceptable because they are inconsistent with established policies, guidelines and standards, or are likely to have a significant detrimental effect on an environmental value, or because they raise key issues that do not meet the EPA's environmental objectives.
The new agreement also accredits the clearing permit assessment process, and introduces a requirement that assessment documentation must be released for the public to comment on the likely significant impacts of each proposal on matters of national environmental significance.
The one-stop-shop model is designed to minimise regulatory duplication and improve the efficiency of the environmental approvals process, although EPBC Act approvals are not required for every project, and represent only a fraction of the number of State approvals. The Environment Minister has stated that the one-stop-shop will deliver savings to businesses of about $420 milllion a year.1 The streamlined approvals process is broadly supported by industry and environmental consultants. However, there are also many critics. There is concern that a one-stop-shop will undermine Federal oversight of State powers, and therefore put the environment at greater risk.2 The Australian Network of Environmental Defender's Offices suggests there is a risk that States will be conflicted because they stand to benefit in royalty payments from many proposals, such as major mining and coal seam gas projects.3
Summary and next steps
The new assessment bilateral agreement makes it even easier for EPBC Act and EP Act assessments to be carried out in one process, by the EPA. For a fully effective one-stop-shop, a single process for EIA approvals is needed next. On 19 December 2013, the Commonwealth gave notice of its intention to develop an approval bilateral agreement for the EPBC Act. The DER is currently negotiating the draft agreement with the Commonwealth. The anticipated approvals bilateral agreement will complete the transition to a one-stop-shop for WA and Commonwealth EIA approvals by accrediting EP Act decisions as also satisfying any approval requirements under the EPBC Act.
Please contact Charmian Barton if you would like more information about the bilateral agreement.
1Deal could mark demise of EPBC
'One-stop-shop', Carbon and Environment Daily, 1 October
2Dr Chris McGrath, 'One stop shop for environmental approvals a messy backward step for Australia', (2014) 31 EPLJ 164.
3Opinion: 'One-stop-shop plans would wind back 30 years of legal protection for the environment', Rachel Walmsley (EDO), ABC Environment, 3 September 2014.