In the latest episode of Corrs’ Essential ESG
podcast, Louise Camenzuli and Georgia Smith discuss likely upcoming
reforms to Australia’s Environment Protection and Biodiversity
Conservation Act (EPBC Act).
The Federal Government’s Nature Positive Plan, released in
2022, signalled significant reforms to the EPBC Act. With the
Government expected to release the exposure draft of the
legislation early this year, Louise and Georgia discuss some of the
changes they expect to see made to the EPBC Act.
Essential ESG is a podcast series presented by Corrs that breaks
down topical issues affecting the rapidly evolving environmental,
social and governance landscape in Australia and beyond.
Louise Camenzuli, Head of Environment and
Planning
Georgia Smith, Lawyer, Environment and Planning
and Responsible Business and ESG
Georgia: Welcome to another instalment of
Corrs’ Essential ESG podcast. I want to start by acknowledging
that I’m recording on the lands of the Gadigal people of the
Eora nation, and I pay my respects to their elders past, present
and emerging. My name is Georgia and I am a lawyer in both our
Environment and Planning and Responsible Business and ESG teams.
Today I am speaking with Louise Camenzuli, the Head of Environment
and Planning here at Corrs. Welcome Louise.
Louise: Thanks Georgia. Great to be back.
Georgia: As many listeners might be aware, the
Government released its Nature Positive Plan (NPP)
in 2022, signalling significant reforms to the national Environment
Protection and Biodiversity Conservation Act (commonly referred to
as the EPBC Act). Now we expect that the Government will release
the exposure draft of the legislation early this year so on
today’s episode we thought we would discuss some of the changes
we expect to see made to the EPBC Act. However before we dive in it
might be helpful Louise if you could provide a quick recap on the
EPBC Act for our listeners.
Louise: Sure. So to recap, the EPBC Act is
Australia’s primary Federal environmental legislation. It seeks
to protect our ‘matters of national environmental
significance’ or MNES, which include things like world heritage
areas, certain threatened species and ecological communities, and
important wetlands and marine areas. Under the EPBC Act, actions
that are likely to have a significant impact on a MNES require
assessment and approval from the Federal environment minister. The
‘Significant Impact Guidelines’ which sit under the EPBC
Act provide guidance on whether a project is likely to have a
significant impact on an MNES. To streamline assessment processes,
states and territories have bilateral agreements in place with the
Federal Government which allow them to assess the impacts of a
proposed action under the EPBC Act and share that assessment with
the Federal Government. The EPBC Act also allows for strategic
assessments, which are landscape-scale assessments rather than
project-by-project assessments. These assessments are undertaken
with a strategic assessment partner and once approved, provide
upfront approval for development covered by and undertaken in
accordance with the strategic assessment approval.
Georgia: Thank you for that overview, Louise.
Now before I ask you about the expected reforms, can you tell us
maybe a bit about the milestone events that led us to the proposed
reforms?
Louise: Okay. Well the EPBC Act itself requires
an independent review to be undertaken of the legislation at least
every ten years. Now given the EPBC Act is more than 20 years old,
there have been two independent reviews. The most recent review is
what largely kickstarted the current reform agenda. This review was
conducted by Professor Graeme Samuel and completed in October 2020.
The Final Samuels Report outlined broad criticisms of the EPBC Act.
For example, some of the issues raised were that the Act does not
clearly outline its intended outcomes; the Act is complex and
cumbersome and results in duplication with State and Territory
processes; and that it’s ineffective to protect environmental
matters of importance to the nation, and not fit to address current
or future environmental challenges. And it made all of these
findings in the face of the following observation, and I want to
quote here because I think it’s important to do so:
“Australia’s natural environment and iconic places
are in an overall state of decline and are under increasing threat.
The environment is not sufficiently resilient to withstand current,
emerging or future threats, including climate change. The
environmental trajectory is currently unsustainable.”
So in the hope of addressing these issues, the Samuel Review
then made 38 recommendations for reform of the EPBC Act across a
broad range of substantive and procedural matters.
Georgia: Shortly after the Samuels Report, the
State of the Environment Report was released. Can you tell us a bit
about the report and what it found, Louise?
Louise: So the release of the 2021 State of the
Environment Report was the next key milestone in this reform
journey. Like the independent reviews of the EPBC Act, a State of
the Environment Report is required by the EPBC Act to be prepared
periodically – essentially every five years. The findings of
the latest State of the Environment Report were equally if not more
bleak than the Samuel Review, and again quoting from page ten of
that report:
“Overall, the state and trend of the environment of
Australia are poor and deteriorating as a result of increasing
pressures from climate change, habitat loss, invasive species,
pollution and resource extraction. Changing environmental
conditions mean that many species and ecosystems are increasingly
threatened. Multiple pressures create cumulative impacts that
amplify threats to our environment, and abrupt changes in
ecological systems have been recorded in the past 5
years”.
Georgia: So that takes us then to the current
key indication of intent, the nature positive plan. So at a high
level, what does that propose, Louise?
Louise: Okay, the Nature Positive Plan sets out
a really ambitious and time sensitive reform package. As the name
suggests, the Plan details a shift from the current requirement for
no net loss of biodiversity to a requirement for a ‘nature
positive’ approach to development. Projects and plans approved
under national environmental law will have to avoid unacceptable
and unsustainable impacts on MNES and deliver net positive outcomes
for MNES. Specific detail around the vehicle for implementation of
the Nature Positive Plan and extent of reforms, is not yet clear.
Options though include an amendment to the EPBC Act, the repeal or
replacement of the EPBC Act, or possibly a mixture of amendments to
the EPBC Act as well as new legislation on certain matters. As you
noted in the introduction, Georgia, we currently expect an exposure
draft of the new legislation to be released at the early this
year.
Georgia: Ok now that we’ve set the scene, I
want to drill down on a few of the key reform proposals. I think
the best place to start is probably the National Environmental
Standards (NES). So Louise can you tell us, what are they and what
standards can we expect first?
Louise: Okay, the aim of the National
Environmental Standards is to clearly state the aims of the EPBC
Act and to provide more certainty to project proponents, local
communities and other stakeholders by shifting from a
process-driven and somewhat discretionary assessment approach to a
more outcomes-based approach. It is proposed that the new NES will
be enshrined in law and apply to all decision-making under national
environmental law. The Government has stated that the Standards
will be developed in consultation with stakeholders. However, it
has also indicated that a standard for MNES will be developed first
and is expected to be released with the exposure draft legislation.
The standard for MNES will require a nature positive approach to
development. In particular, projects and plans approved under
national environmental law will have to avoid unacceptable and
unsustainable impacts on MNES and deliver net positive outcomes for
MNES. The Government has also indicated that it will prioritise new
national environmental standards for First Nations engagement and
participation in decision-making, community engagement and
consultation, regional planning and environmental offsets. So
Georgia as you can see, the reforms are not just focused on
addressing environmental or ‘E’ issues, but also on
addressing ‘S’ issues, like First Nations’ engagement
and community consultation.
Georgia: Absolutely. So another proposed reform
that caught my eye was around regional planning. Can you tell us
what the Government is proposing there?
Louise: Sure. The Government is proposing to
designate areas of varying environmental value for the purpose of
either prohibiting, allowing or streamlining development approval
within the area. The plans will be subject to approval by the
minister and negotiated with relevant state or local governments,
as well as regional natural resource management bodies. The first
round of these plans is expected to be completed by 2028.
Georgia: There are also some significant
changes proposed to the decision-making process, right?
Louise: Yes, there are. So the Government has
proposed the establishment of a new independent Federal EPA or
Environment Protection Authority. The EPA would generally replace
the Minister as the new independent Federal environmental approval
decision-maker. So it would be responsible for project assessment,
decisions and post-approval compliance matters. The Minister will
not be able to direct the EPA, but she would have a power to call
in decisions that would otherwise be made by the EPA, with a
requirement for full transparency about any decisions and reasons.
Another reform is the improvement of accreditation arrangements for
States and Territories to both assess and approve controlled
actions by reference to the new National Environmental Standards,
with oversight by the Federal EPA.
Georgia: Thanks Louise. I want to change now to
a different topic, climate change – a hot button topic. What
did the National Positive Plan have to say about climate change, if
at all?
Louise: So the Nature Positive Plan does not
propose a new climate change trigger. However the Government does
propose that applicants for Federal environmental approvals be
required to publish Scope 1 and 2 emissions data and disclose
alignment with Australia’s international and national
obligations. I should also mention Georgia that the Greens have
separately introduced a Bill before parliament to establish a
climate trigger as a new MNES and a Climate Change Authority to
develop a national carbon budget. Under the Bill, a project that is
estimated to emit between 25,000t to 100,000t CO2-e per year would
have to be assessed by the Minister, including assessing whether
the project is consistent with the national carbon budget. Any
projects emitting above 100,000t CO2-e per year would be
prohibited. Now there has been no indication to date that either
major party supports the Climate Trigger Bill, therefore the
likelihood of it passing currently seems very low.
Georgia: Alright. I recall that the
Samuel’s Review recommended that limited rights to seek merits
review of EPBC Act decisions be introduced. Did the Nature Positive
Plan adopt this recommendation?
Louise: No, it didn’t. However, it does
suggest a possible strengthening of third-party enforcement
provisions. It is not clear what type of third-party enforcement
provisions are envisaged, but it may be that the NPP is referring
to rights similar to those provided for in the relatively recent
Victorian Environment Protection Act 2017 (Vic) which allows third
parties who constitute ‘eligible persons’ to bring civil
proceedings to enforce non-compliances.
Georgia: Okay. So, we’ve talked about the
proposals outlined in the Nature Positive Plan. Before we end, I
just wanted to get your thoughts on the future for existing and new
EPBC Act approvals.
Louise: Well a few recap and wrap up
observations are, first, Commonwealth environmental reform is
imminent and will be broadscale. As we’ve discussed, the
exposure draft of this legislation is due to be released for public
comment early this year and it will have wide ramifications.
Secondly, while some streamlining of process is promised, this does
not necessarily increase prospects of securing approval. Thirdly,
climate change impacts will be relevant in the assessment of future
applications in one way or another. Fourthly, it’s clear that
engagement with First Nations people will be the subject of a new
national standard, along with other new national environmental
standards to create greater transparency and consistency in
decision-making. And finally, third party challenges will continue
to be available on administrative law ground with some potential
for new or expanded pathways.
Georgia: I think that’s a great place to
finish. Thanks Louise. So that concludes another instalment of
Essential ESG. Thank you again Louise, for taking us through the
proposed EPBC Act reforms. We will certainly have to get you back
on for another instalment so we can pick your brain about the
exposure draft once it is released.
Louise: Thanks Georgia, a pleasure.
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