Turning Over A New Leaf: What You Need To Know About The EPBC Act Amendments

There are changes to the assessment approaches

The assessment approaches for controlled actions are changed:

• There is a new category of assessment approach called "streamlined assessment"
• The existing assessment approaches of referral information, preliminary documents and public environment report are removed and consolidated into the streamlined assessment pathway

Streamlined assessments are to be decided within 30 business days, but importantly are subject to information request requirements including before the decision that a controlled action is to be assessed by the streamlined assessment approach.

Importantly, the Minister must now give reasons for an information request.

The Minister can change assessment pathways part way through the process.

There are fundamental new definitions that will impact the implementation of the EPBC Act.

These definitions are relevant to decisions on controlled actions, decisions to accredit bilateral arrangements, strategic assessments and bioregional planning. Importantly, these decisions are subject to national interest considerations, which are designed to be used sparingly.

Unacceptable impacts – while not a new concept under the EPBC Act, "unacceptable impacts" would now be defined, and are applied to more decisions across the EPBC Act. Currently unacceptable impacts applies at the referral stage only.

The introductory speech indicates that unacceptable impacts are intended to apply only in very limited circumstances.

There is a bespoke definition for each protected matter, and the definition is complex and detailed. We anticipate it may take some time for application of the various definitions to be clearly and consistently applied, in particular because the Act needs to provide for significant impacts to be assessed and approved and the delta between significant and unacceptable impact requires consideration of various matters. Many definitions rely on a new concept where the impact would 'seriously impair' the environment, defined as a serious alteration for the worse having regard to various circumstances and context of the impact. For species and communities, concepts and definitions of viability, irreplaceability and critical habitat (see below) will arise.

Critical habitat is a new definition for listed threatened species and ecological communities, and is relevant to the interpretation of "unacceptable impacts". Critical habitat is defined by reference to the function of habitat for activities such as foraging, breeding, roosting or dispersal; the long-term maintenance of the species or ecological community, genetic diversity and long-term evolutionary development and the reintroduction or recovery of populations.

Net gain test – associated with changes to environmental offsets is a new "net gain" test. What is a "net gain" is not yet defined, but this replaces the current "no net loss" setting.

National environmental standards – consistent with the recommendations of the Samuel Review, the Minister will be able to make national environmental standards for the EPBC Act. Generally decisions must not be inconsistent with these standards, so they are critical to the implementation of the amendments. Priority standards have been identified that will shortly be subject to consultation are for matters of national environmental significance and offsets. It has been indicated that these will be released prior to the passage of the legislation. Further standards that have been flagged are for First Nations engagement and Data and Information.

Standards can be amended, but are subject to a non-regression principle.

National interest – again, not a new concept for the EPBC Act, but the definitions and its application are changed. The national interest concept is intended to be used sparingly.

The proposed amendments provide for:

• national interest exemptions, which allow actions to be taken without approval and are directed at national defence, security and emergencies

national interest proposals, which operate as exceptions for unacceptable impacts, the net gain test and consistency with national environmental standards. National interest proposals are directed at outcomes in Australia's national interest, with national interest being in consideration of defence, security or strategic interests, or Australia's international agreements.

Scope 1 and Scope 2 GHGemissions information must be included

There is no climate trigger, and there is no specific consideration of climate in decisions on controlled actions (however there is for other decisions such as bioregional plans and management plans for restoration actions).

However, information before the decision maker for decisions on controlled actions, bioregional plans and strategic assessments must include Scope 1 and Scope 2 greenhouse gas information, even if that is not relevant to relevant impacts. This links to reporting obligations under the Safeguard Mechanism, which is expected to be reviewed in 2026, but it is yet to be seen what, if any, implications this has for decision making under the EPBC Act.

The methodology for estimation of Scope 1 and 2 GHG emissions will be prescribed.

Environmental offsets (restoration contributions)

The EPBC Act currently implements offsets through a 2012 environmental offsets policy, which is proposed to be replaced by amendments to the core legislation. The proposed offsets regime includes:

• A legislated requirement to consider whether proponents have taken appropriate measures to avoid, mitigate or repair impacts before imposing offset conditions for residual significant impacts.
• A new "net gain" test that replaces the current "no net loss" test.
• An ability to fulfil offset obligations by a restoration contribution charge.
• The establishment of a new "restoration contributions holder" to administer the restoration contributions special account and deliver restoration actions. The amendments provide for the pooling of contributions to deliver strategic offsets for similar impacts.

Amendments to the Nature Repair Act 2023 so that biodiversity certificates can be used for an environmental offsetting purpose. Detail is not yet provided on how the rules would give effect to this, and any limitations.

Minor preparatory worksfor a controlled action can start prior to approval

In an amendment that will be welcomed by project proponents, there is a new process to allow minor preparatory components of a larger action to commence after a referral is made, but before a final decision. The process is subject to the Minister's written agreement and will be detailed in regulations.

A new National Environment Protection Agency (NEPA) is to be established

The much discussed NEPA is proposed to be established as an independent body. The role of this body in assessment and approval of applications has been a contentious part of the amendments. Under the proposed amendments, the NEPA will have primary responsibility for:

• Compliance and enforcement, including auditing
• Assessment and approval of permits
• Monitoring of bilaterals, including providing advice to the Minister on compliance with bilateral agreements

NEPA may also become responsible for approvals, but under delegation and subject to the Minister's direction.

The CEO NEPA will also have decision-making and compliance functions outside of the EPBC Act, including under:

• the Hazardous Waste (regulation of Exports and Imports) Act 1989
• the Underwater Cultural Heritage Act 2018
• The Environment Protection (Sea Dumping) Act 1981
• The Produce Emissions Standards Act 2017
• The Recycling and Waste Reduction Act 2020
• The Ozone Protection and Synthetic Greenhouse Gas Management Act 1989.

A new Environment Information Australia (EIA) is to be established

A new Environment Information Australia (EIA) is to be established

A new independent EIA will be established. The Head of EIA is given functions around providing access to the Minister, the CEO NEPA and the public to high quality information and data, preparing and publishing State of the Environment reports, maintaining environmental economic accounts and declaring data or information to be a national environmental information asset.

Not a controlled action decisions expireand there is the ability to change Not a Controlled Action – particular manner decisions

"Not a controlled action" decisions will lapse after 5 years if not substantially commenced (including not controlled action – particular manner decisions). This applies to not a controlled action decision made after commencement of the amendments.

A new ability to amend a "not a controlled action – particular manner" decision is also introduced through the reconsideration provisions.

Reconsiderations

The proposed amendments introduce a time limit on reconsideration requests made by third parties of 28 business days (interestingly specified as business rather than calendar days). While this provides a level of certainty for proponents, this also has the potential to extend the review window for project decisions.

Where a reconsideration results in a controlled action decision, the Minister will have the ability to permit an action to continue while the assessment takes place.

Bioregional assessmentsare introduced

Bioregional assessments are introduced, allowing for landscape scale assessments. The amendments include processes for undertaking actions in areas subject to bioregional plans and for amendments to bioregional plans.

Bioregional plans will identify:

• Objectives
• Development zones and the priority class of actions (priority actions) that can be taken in a development zone and the impacted protected matters
• Bioregional restoration measures
• Conservation zones, including the classes of actions that are prohibited in the conservation zone (restricted actions)
• Bioregional restoration measures to mitigate, repair or compensate for likely damage to protected matters, and responsibility for delivery of the measure.

Conditions may be attached to the taking of priority actions in a development zone.

Bioregional plans must not be made unless:

• agreed to by each relevant State and Territory;
• the restoration measures have been consented to by the responsible entity;
• the decision making criteria are met, including that the bioregional plan will not have an unacceptable impact, impacted protected matters will be compensated to a net gain;
• the expected impacts of climate change and adaptation and resilience measures are included.

Bioregional plans can be amended, suspended or revoked, and there are transitional provisions that deal with how those actions impact on existing registered priority actions or actions being undertaken.

Proponents who propose to take a priority action in a development zone must go through a registration process. The amendments provide a process for a proponent to ask the Minister to register a priority action, including for that registration to be transferred.

There are changes to bilateral agreements

Bilateral agreements are proposed to have increased flexibility and an expanded scope of the processes that can be accredited. Minor amendments would also be able to be made to accredited processes without a new accreditation.

Importantly, the current restriction on bilaterals applying to the water trigger is removed, subject to the decision maker seeking advice from the IESC.

New criteria are applied to accreditation, with State or Territory assessment processes having to demonstrate that they will not have an unacceptable impact, pass the net gain test and not be inconsistent with national environmental standards.

NEPA will have a role in auditing and reviewing the operation of the bilateral agreements.

Increased flexibility for strategic assessments

Amendments are proposed to make strategic assessments more "flexible, workable and legally robust", including:

• Clarifying who is responsible for administering strategic assessments after they are approved and allow for the transfers of these responsibilities from one person to another;
• Removing the requirement to create terms of reference on the basis the requirement was no longer fit for purpose;
• Clarifying that PPPs can be varied before endorsement and introducing the power to make minor variations to endorsed plans, policy, programs and corresponding approvals;
• Enabling actions covered by Part 10 approvals to seek standalone approvals under Part 9;
• Allowing for the surrender of strategic assessment approvals; and
• Clarifying how the provisions of Part 9 apply to Part 10 approvals.

Nuclear is now radiological exposure, and there are changes to the trigger

The 'nuclear action' protected matter will change to a 'radiological exposure action'. The definition of radiological exposure action:

• Largely reflects the old definition of nuclear action;
• Introduces a trigger for naturally occurring radioactive material (NORM) over an activity level to be prescribed;
• Amends the trigger for uranium mining or milling to exclude circumstances involving only trace amounts of uranium. Operations for recovery of mineral sands or rare earth elements are excluded, but uranium that is NORM over trace amounts is not otherwise excluded;
• Brings the trigger for facilities for storage or use from the regulations into the definition in the Act.

An 'unacceptable impact' under the controlling provisions for radiological exposure actions is 'a significant impact that the Minister is satisfied is unacceptable because it will seriously impair the environment.'

Approval of a radiological exposure action is taken to meet the net gain test to a limited extent relating to impact on people and communities.

Higher penalties, more enforcement tools and a focus on auditing and compliance

Maximum penalties for breaches of the EPBC Act have been increased. Notably, penalties for certain civil penalty provisions have been significantly increased, including civil penalty provisions of Part 3 (Requirements for environmental approvals), new section 12A (Bioregional Plans) and subsection 142(1) (Compliance with conditions on approval). Bodies corporate may now be liable for a penalty of up to 10% of the annual turnover of the body corporate for the 12-month period ending at the end of the month of the contravention, or 2.5million penalty units, if 10% of annual turnover is more than 2.5 million penalty units. Alternatively, for these offences a new formula has also been introduced, which is calculated based on the benefit derived or detriment avoided because of the contravention.

New environment protection orders have been introduced to be used in urgent circumstances where it is reasonably believed that a contravention of the EPBC Act, is causing, or poses an imminent risk of, serious damage to a protected matter or the environment, and can require a person to discontinue or not commence specified activities, change the manner in which a person is carrying out a specified activity, restrict the manner in which the person is carrying out the specified activity, or to take a specified action.

The CEO NEPA also has the power to direct a person to undertake an environmental audit in specified circumstances, including where they reasonably suspect a contravention or likely contravention of an approval, environmental order or exemption, or that an action has, has had or is likely to have a significantly greater impact on a protected matter than was initially indicated. There are also serious penalties, namely a maximum of 6 months imprisonment, for an appointed auditor if they conceal or do not take into account information relevant to the audit. The CEO NEPA may also require compliance audits to be undertaken by authorised officers or registered auditors.

Rulings

New powers are introduced to allow rulings to be made to increase transparency, certainty and consistency in decision making. Rulings may be made by:

• the Minister to set out the Minister's opinion on how the Act, regulations, a national environmental standard or other instrument should apply
• The CEO NEPA relating to the performance of the CEO's functions and powers under the EPBC Act or regulations.

Decisions will generally be required to be consistent with rulings, unless it is not appropriate in particular circumstances.

The amendments to the EPBC Act relating to rulings are intended to assist in increasing transparency, consistency and certainty in environmental decision-making.

Transitionals

Like all good transitional provisions, they are complex and will depend on specific circumstances. Existing approvals and applications at the time of the amendments generally are intended to proceed unaffected, however subsequent decisions can be impacted by the amendments. This will need to be considered on a case by case basis.