Australia: Federal environmental law

Environment & Planning National Review 2016
Last Updated: 5 September 2016
Article by Karen Trainor

At the time of writing the 2015 / 2016 Review, the Commonwealth Government was in caretaker mode, and the policy position to be taken in relation to many of the policy positions outlined below remains to be seen.

MEETINGS OF THE ENVIRONMENT MINISTERS

Commonwealth, State and Territory Environment Ministers held three meetings in 2015 to discuss the matters previously overseen by COAG's Standing Council on Environment and Water, covering:

  • National Review of Environmental Regulation – the Ministers committed to considering removing unworkable, contradictory or incompatible environmental regulation and identifying opportunities for collaboration between jurisdictions. The Department of the Environment also released the Interim Report of the National Review of Environmental Regulation as part of an audit of all environmental regulation at State and Federal levels of Government.
  • National Clean Air Agreement – the Ministers endorsed the National Clean Air Agreement on 15 December 2015. The Clean Air Agreement and associated work plan establish a range of actions to strengthen management of air quality and reduce pollution where co-operative management is required. The initial work plan includes a variation of the Air Quality NEPM including for increased particulate reporting standards, and a review of the need for air toxics and diesel vehicles NEPMs. See more in our Pollution and contaminated land chapter. It is expected that the Agreement will be finalised by 1 July 2016.
  • National Waste Initiatives – waste initiatives undertaken by the Minister include a national project to develop a market strategy for end of life targets, to be considered in 2016, a ministerial round table was convened in February 2016 to inform a harmonised approach to reducing the environmental impact of plastic shopping bags and work towards securing a voluntary agreement from industry to phase out microbeads by no later than 1 July 2018.
  • Environmental Management of Industrial Chemicals – Ministers either agreed or agreed in principle to establishing a national standard for environmental management of industrial chemicals. The national standard is to be established under Commonwealth legislation and implemented by each jurisdiction. In May 2016 Department of the Environment released a discussion paper on a new National Industrial Chemicals Notification and Assessment Scheme (NICNAS). The scheme provides for a harmonised assessment of industrial chemicals in Australia based on the chemical's level of concern to the environment.
  • Common assessment and listing of threatened species – the Ministers endorsed a common assessment method to list nationally threatened species and ecological communities. It was agreed that as a priority, the Commonwealth would lead the development of a recovery plan for the listed koala, with the Commonwealth and Victoria to co-lead the development of national koala translocation guidelines.

INDEPENDENT REVIEW OF THE "WATER TRIGGER"

The EPBC Act was amended in 2013 to include as an assessment trigger coal seam gas and large coal mining developments that have, or are likely to have as a significant impact on a water resource. The amendments were enacted relatively quickly, and without the benefit of a Regulation Impact Statement, which is generally prepared to assess the impact and benefits of legislative amendments.

The amendments have affected a large number of resources projects, with 23 coal seam gas and large coal mine developments approved, and a further 42 undergoing assessment. Under the transitional provisions for the amending act, the Minister determined that 48 existing projects had to be assessed.

The amending legislation required an independent review to be undertaken of the operation of the legislation, including whether the legislation was appropriate, effective and efficient in protecting water resources from the impacts of coal seam gas and large coal mining developments.

The Commonwealth Department of the Environment released an issues paper on 30 November 2015 to inform the review. The submission period closed on 29 January 2016.

The review report will be finalised and provided to the Minister who will table the report before Parliament within 15 days of receiving the report.

GREAT BARRIER REEF – UNESCO DECISION

In June 2015 UNESCO published its final decision not to list the Great Barrier Reef as "in danger" on the World heritage list. The decision was based in part on the Reef 2050 Long Term Sustainability Plan, including in particular:

  • establishing an 80% reduction in pollution run-off by 2025;
  • investing $200m to accelerate water quality improvement programs;
  • restricting major new port developments; and
  • a five-yearly evaluation of the plan.

Australia is to submit an update on progress with implementation of the Reef 2050 plan by 1 December 2016 and an overall state of conservation report by 1 December 2019.

As part of the implementation of the Reef 2050 plan, the second edition of the implementation strategy was released in December 2015, which is updated every six months. The process has identified 97 immediate priority actions.

EPBC ACT AMENDMENTS TO REMOVE EXTENDED STANDING

The Environment Protection and Biodiversity Conservation Amendment (Standing) Bill 2015 was before the Senate, but lapsed at the end of the Parliamentary session on 17 April 2016.

The Bill proposed to repeal section 487 of the EPBC Act which provides "extended standing" to seek review of decisions made under the EPBC Act to include individuals and organisations that have engaged in activities relating to environmental protection at any time in the two years before the decision was made. The Bill was introduced in response to the successful challenge by the Mackay Conservation Group against the Commonwealth Environment Minister's approval of Adani's Carmichael Mine in the Galilee Basin in Queensland. The Minister subsequently made a second decision to approve the Carmichael Mine in October 2015, which is currently the subject of a legal challenge by the Australian Conservation Foundation.

The Bill did not propose to repeal section 475 of the EPBC Act. This section provides extended standing for an "interested person" to make an application for an injunction under the Act in relation to conduct that constitutes a contravention of the EPBC Act.

OUTCOMES-BASED CONDITIONS POLICY

In August 2015 the Department of the Environment released for consultation the draft outcomes-based conditions policy. Although still in draft, the policy will be applied to proposals referred under the EPBC Act after 10 August 2015. Consultation on the draft policy closed in October of 2015. The policy sets out the Government's approach to the use of outcomes-based conditions, including what outcomes-based conditions are, when they are appropriate and who is a suitable approvalholder for outcomes-based conditions.

"THE REVIEW INTO THE WATER TRIGGER WILL REPORT SOON."

ADVANCED ENVIRONMENTAL OFFSETS

In August 2015, the Department of the Environment released for consultation its "Draft Policy Statement: Advanced environmental offsets under the EPBC Act". Consultation on the draft policy concluded in October 2015. The final policy has not yet been released.

The EPBC Act Environmental Offsets Policy that was finalised in 2012 encourages the use of advanced environmental offsets, recognising that impacts of an action can be minimised by avoiding offset time delays.

Offsets that deliver a conservation gain after the commencement of the EPBC Act (16 July 2000) can be considered as advanced environmental offsets. Under the draft Policy, proponents would also need to show that the site was established for the purposes of advanced offsetting, that there is sufficient baseline information to enable a clear assessment of the conservation benefit and that offsets are additional to other obligations.

There are a number of advantages to the use of advanced environmental offsets. In addition to improved conservation outcomes, proponents are likely to have smaller offset requirements (as risk of delivery and time-lag for delivery are reduced) and the post-approval timeframes for offsets to be accepted are either removed or reduced. Proponents or third parties proposing advanced environmental offsets do however need to take care with advanced environmental offsets that the offset not only is acceptable to the Department, but also is suitable for the action (or actions) it is proposed to offset. Offsets will not be considered by the Minister as part of the original controlled action decision under the EPBC Act.

THE ONE-STOP SHOP

The "one-stop shop" remains an aspiration, with none of the draft approval bilateral agreements between the Commonwealth with each of the States and Territories yet finalised.

The Environment Protection and Biodiversity Conservation Amendment (Bilateral Agreement Implementation) Bill 2014 was before the Senate and lapsed at the end of the Parliamentary session on 17 April 2016. Its aim was to amend the EPBC Act to facilitate the implementation of the draft approval bilateral agreements with each of the States and Territories by:

  • clarifying that a referral is not required for actions that are covered by an approval bilateral;
  • allowing a broader range of State and Territory approvals processes to be accredited, with a broader range of decision makers (eg. local government);
  • removing the current restriction in the EPBC Act that prevents an approval bilateral covering the water trigger;
  • providing some flexibility to accommodate amendments to State or Territory legislation after the approval bilateral is made.

While the approvals bilaterals have not been finalised, a review of the assessment bilaterals has been undertaken to increase communication between the different levels of government, and provide greater upfront certainty as to approval conditions.

The Department of the Environment also released its Assessment Bilateral Agreement Draft Conditions Policy for public comment in March 2015. The draft Conditions Policy has not yet been finalised, but would apply to projects in New South Wales, reflecting the Commonwealth endorsement of a number of policies, and is aimed at further streamlining the consideration of projects by the Federal Environment Minister, reducing assessment timeframes and reducing duplication in conditions. The draft Conditions Policy would provide guidance on setting conditions, however the Commonwealth Environment Minister retains a discretion in relation to decision-making and is not bound by the policy.

It remains to be seen whether the Bill will be proceeded with at the next session.

EPBC ACT CUMULATIVE IMPACTS CONSIDERED BY FEDERAL COURT

The Full Federal Court judgment in Tarkine National Coalition v Minister for the Environment [2015] FCAFC 89 considered whether the Environment Protection and Biodiversity Conservation Act 1999 (Cth) requires the Minister, in deciding whether to approve a controlled action, to consider cumulative impacts. This decision gives some certainty to the scope of cumulative impact assessment, and shows that they must have some relationship with the project being assessed.

Essentially, even if a cumulative impact assessment is completed for a proposed controlled action, but it does not cover every other project, present or anticipated, the Act only requires the Commonwealth Environment Minister to consider those impacts which are a direct or indirect consequence of the project being assessed as "cumulative impacts".

The decision emphasises that the scope of any cumulative impact assessment needs to be clearly understood and scoped by the regulator and proponents. That scope may depend on the assessment requirements of any accredited process under an assessment bilateral, or guidelines for assessment made under the Act, and the different requirements within each State and Territory jurisdiction. All these requirements will need to be considered in the preparation of any environmental assessment and scoped out carefully during the terms of reference stage of the assessment.

Clayton Utz communications are intended to provide commentary and general information. They should not be relied upon as legal advice. Formal legal advice should be sought in particular transactions or on matters of interest arising from this bulletin. Persons listed may not be admitted in all states and territories.

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