Review of Environment Protection and Biodiversity Conservation Act 1999 – a chance to refocus our national environmental laws

The Environment Protection and Biodiversity Conservation Act 1999 (Cth) (EPBC Act) is undergoing a ‘once in a decade’ review (Review).

In this article we take a look at the key environmental law issues raised in the Review. You can read our summary of the issues in relation to Indigenous knowledge and culture here.

Immediate challenges and stated aim – is the EPBC Act fit for purpose?

A discussion paper for the Review was released in November 2019 (Discussion Paper). It acknowledges that, since the commencement of the EPBC Act, there has been a consistent decline in the state of the Australian environment and biodiversity.^[1] Current trends of population growth, economic growth and increased international trade impacting the environment will not merely continue, but will increase.^[2]

Australian ecosystems are therefore expected to experience ‘widespread ecological change’ as a result of various factors, including:

• changes to land use
• habit fragmentation and degradation
• climate change
• more extreme weather events
• rainfall shifts
• ocean acidification.

It is in this context that the Discussion Paper recognises concerns that the EPBC Act has been unable to ‘protect and conserve the environment’^[3] to date and asks: “Is the EPBC Act sufficient to address future challenges?”^[4]

Proposed changes to the EPBC Act

To answer this question, various ideas are raised by the Discussion Paper, including proposals to:

• implement national environmental standards based to ‘build consensus and national consistency’^[5]
• incorporating environmental restoration within the regulatory ambit of the EPBC Act^[6]
• updating the EPBC Act to reflect contemporary matters of national environmental significance: for example, the replacement of the nuclear and water triggers contained in Part 3 of the EPBC Act in favour of new land clearing and climate change triggers^[7]
• distributing responsibilities more efficiently between Commonwealth and State and Territory governments: for example, a regional approach to biodiversity conservation which would deal with habitat management on a landscape scale, rather than focusing on species-specific protection^[8]
• increasing the scope of the Commonwealth’s environmental protection role, asking: “Should the EPBC Act positon the Commonwealth to take a stronger role in delivering environmental and heritage outcomes in our federated system?”^[9]

Streamlining the EPBC Act

Importantly for industry stakeholders, the Discussion Paper also indicates that streamlining regulatory processes under the EPBC Act will be a focus for the Review. The Discussion Paper notes that widespread inefficiencies in the current regulatory framework frequently cause delays in development projects and create significant compliance costs for businesses.^[10] In particular, the following concerns are raised:

• the EPBC Act itself is relatively complex which causes some uncertainty for businesses navigating their obligations^[11]
• some processes are duplicated between Commonwealth and State/Territory jurisdictions^[12]
• there is demand for greater transparency and consistency in decision-making.^[13]

The Discussion Paper outlines various proposed solutions to improve administrative efficiency by simplifying regulatory processes, increasing public access to information, coordinating decision-making processes nationally and promoting greater stakeholder participation in the development of the regulatory framework.

Critically, the Discussion Paper notes that improving the efficiency of the EPBC Act would ‘deliver benefits for both the economy and the environment.’^[14]

Submissions to the Review close on Friday 17 April. The Review process is ongoing notwithstanding the current COVID-19 pandemic. We will provide further updates as they become available.

Authors: Breellen Warry, Clara Edwards & Clare Giugni

^[1] Commonwealth of Australia, Independent review of the EPBC Act, Discussion Paper (2019) 11.
^[2] Above n1, 13-14.
^[3] Above n1, 11.
^[4] Above n1, 27.
^[5] Above n1, 16.
^[6] Above n1, 17.
^[7] Above n1, 15.
^[8] Above n1, 20.
^[9] Above n1, 16.
^[10] Above n1, 12, 15 & 18.
^[11] Above n1, 18.
^[12] Above n1, 12, 18.
^[13] Above n1, 12.
^[14] Above n1, 18.

Disclaimer
The information in this publication is of a general nature and is not intended to address the circumstances of any particular individual or entity. Although we endeavour to provide accurate and timely information, we do not guarantee that the information in this newsletter is accurate at the date it is received or that it will continue to be accurate in the future.

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