Key takeaways
The EPA is to be responsible for:
- Issuing permits and licenses
- Project assessments, decisions and post-approvals
- Education, compliance and enforcement
- Assuring states, territories and other Commonwealth decision makers apply National Environmental Standards (also under development) under accredited arrangements
This means that, where a project requires a national environmental approval to proceed, project proponents will be:
- Moving away from existing processes – which variously can involve dealing with and assessment by the Department of Climate Change, Energy, the Environment and Water and decisions being made by the Federal Environment Minister (Minister) (or her delegate)
- Engaging with a new independent agency, which is to be: endorsed by specific legislation; have powers bestowed upon it from a variety of Acts; be accountable (through reporting and review requirements); and foreseeably, scrutinised for its enforcement activities
We will keep you updated with ongoing or future developments.
In more detail
Project assessment timeframes and a lack of compliance and enforcement actions has been a feature of EPBC Act criticism for some time.
The Samuel Review1 condemned many aspects of the EPBC Act and noted specifically that:
- The EPBC Act is not trusted by industry – it is generally reviewed as cumbersome, duplicative and results in slow decision making.
- Surveillance, compliance and enforcement under the EPBC Act has been weak and ineffective.
- There has been limited enforcement of the EPBC Act over the 20 years of its operation, and the transparency of what has been done is limited.
The purpose of establishing the EPA has been described to include:
- Enhancing the protection of Australia's environment through a national environmental regulator
- Preventing the degradation of the environment and reduce risks to human health
- Delivering accountable, efficient, outcome-focused and transparent regulatory decision-making
- Delivering proportionate and effective risk-based compliance and enforcement responses, including providing assurance that environmental outcomes are being met
- Promoting public trust in environmental decision-making through the publication of information, transparency of decisions and providing opportunities for people to inform decision-making processes
While detail as to how the EPA will operate is to be provided in due course, the draft discussion paper proposes that:
- Where a project proponent proposes to take an action that will have a significant impact on a protected matter, the application for approval will be made to the EPA.
- The EPA will be regularly subject to a range of external reviews and audits to ensure that it is effective.
- The EPA will also be subject to regular operational review by the Minister.
- The EPA CEO (or delegate) will be required to consult with proponents on proposed decisions related to assessments and approvals before making those decisions – some decisions may also be subject to reconsideration, including where there has been a substantial change in circumstances not previously foreseen.
Ultimately, the success of the EPA in achieving its purpose – and improved industry satisfaction with federal environmental assessment processes – is likely to be directly proportional to the level of federal resourcing given to the EPA. If there is change is compliance and enforcement outcomes achieved by the EPA, those will largely depend upon whether the proposed legislation provides it with a full suite of fit-for purpose regulatory powers and tools.
1 Independent Review of the EPBC Act – Final Report, Professor Graeme Samuel AC, October 2020
