On 3 September 2020, the Environmental Protection and Biodiversity Conservation Amendment (Streamlining Environmental Approvals) Bill 2020 (Cth) (Bill) passed through the Commonwealth House of Representatives. The Bill seeks to amend the Environment Protection and Biodiversity Conservation Act 1999 (Cth) (EPBC Act) based on the recommendations made in the Interim Report of the former Australian Competition and Consumer Commission Chairman Graeme Samuel released on 20 July 2020. The Interim Report sets out the inadequacies of the EPBC Act and proposes key reforms needed to address them.
In short, the Bill seeks to streamline the process for obtaining environmental approvals under the EPBC Act by:
- enabling devolution of environmental approvals to the States and Territories by way of bilateral agreements; and
- making amendments to the EPBC Act relating to bilateral agreements to support their efficient and long-lasting operation.
In this alert Partner Sarah Macoun and Law Graduate, Lily Robinson outline some of the key amendments proposed by the Bill.
Devolution of environmental approvals to the States and Territories
The Bill removes the duplication that occurs with State and Territory environmental approval processes and those of the Commonwealth. It achieves this by providing that where an approved bilateral agreement is in place for a class of actions, referral of an action under Chapter 4 Part 7 of the EPBC Act is not required.
The Bill also proposes that where a bilateral agreement is suspended or cancelled part way through an assessment carried out by a State or Territory, the Commonwealth can consider the assessment that has been partially completed in its own assessment and approval process.
Call-in provision
The Bill proposes that the approval bilateral agreements include a provision allowing the Commonwealth Minister or a State or Territory Minister to declare that a particular action is no longer within a class of actions to which the approval bilateral agreement relates. Such provisions will allow the Minister to ‘call-in’ an action for assessment or approval under the EPBC Act where it is appropriate that the Commonwealth approve the action. The explanatory memorandum gives the example of a Minister using this power where adequate environmental protection is not being achieved.
Water trigger
The Bill removes the prohibition on the ability for an approval bilateral agreement to apply to the water trigger, which is currently in place under the EPBC Act. To strengthen environmental assurances relating to States and Territories approving actions covered by the water trigger, the Bill imposes a condition requiring approval bilateral agreements to include an undertaking that the appropriate State or Territory Minister will consider any relevant advice received from the Independent Expert Scientific Committee on Coal Seam Gas and Large Coal Mining Development.
Minor amendments
Currently, to make an amendment to a bilateral agreement the bilateral agreement must be re-made. In the interests of efficiency, the Bill enables bilateral agreements to endure minor amendments so long as the amendments do not significantly affect the matter protected by the agreement.
Comments
The Bill does not address the recommendation made in the Interim Report to introduce a set of legally enforceable National Environmental Standards. These standards would serve to provide assurance that devolution to the States and Territories would not compromise the national interest.
The Bill is expected to be considered by the Senate early next month. We will continue to monitor the progress of the Bill and provide updates when they become available.
For more information and discussion, please contact ourEnvironmentteam.