Government set to reform national environmental laws but there are some challenges for industry

What you need to know

• The Federal Government has released its Nature Positive Plan: Better for the Environment, Better for Business in response to the 2020 Independent Review of the Environment Protection and Biodiversity Conservation Act 1999 and the 2021 State of the Environment Report. 
• A number of the proposed reforms are consistent with the recommendations in the Independent Review, including the introduction of National Environmental Standards and a national EPA.
• However, there are also some proposals that go beyond Professor Samuel's recommendations, including an expansion of the water trigger and funding of the EDO. 

What you need to do

• Follow the progress of these reforms throughout 2023 and consider the impact on your business.
• Participate in consultation either directly or through your representative bodies. 

EPBC Act reform timeline

The Federal Government's Nature Positive Plan: Better for the Environment, Better for Business, released on 6 December 2022, is the latest development in the process to reform Australia's national environmental laws.

The Plan is the Albanese Government's promised response to Professor Graeme Samuel AC's Final Report on the Independent Review of the Environment Protection and Biodiversity Conservation Act 1999, which concluded that the Act, Australia’s central piece of national environmental law, is outdated, ineffective, and requires fundamental reform.  

While the Plan adopts many of the key reforms from the Samuel review, it also contains some challenges for industry.

What key recommendations were adopted?

A number of the flagship recommendations in the Samuel review have been adopted in the Government's Nature Positive Plan.  

National Environment Standards 

One of the central recommendations of the Samuel review was the creation and adoption of National Environmental Standards.  The Government has committed to developing standards on:

• Matters of National Environmental Significance
• First Nations engagement and participation in decision-making
• Community engagement and consultation
• Regional planning
• Environmental offsets

The standard for Matters of National Environmental Significance will be one of the initial standards for development.  Interestingly, the Plan states that the standard in the Samuel review will be the starting point for consultation.  This is a departure from the draft standard release by the previous Government, which was not consistent with the Independent Review recommendations, and was widely seen as insufficient.

National EPA

In keeping with its election commitment and consistent with the Samuel review recommendations, the government has committed to establishing an independent EPA which it says will be "a tough cop on the beat". 

According to the Plan, the new EPA will have a broad remit, covering compliance and enforcement, as well as project assessments, decisions and post-approvals (where these are not undertaken by another accredited decision-maker). 

The EPA will be an independent statutory entity, with a statutorily appointed CEO subject to removal only in specifically defined circumstances. 

"Single-touch" decision making 

According to the Nature Positive Plan, states and territories will be able to apply to become accredited for single-touch decision-making.  This accreditation will occur in accordance with the recommendations of the Samuel review, including compliance with National Environmental Standards.

The Plan acknowledges that "not all jurisdictions will seek or continue to satisfy the requirements for accreditation", meaning the Federal Government "will continue to play a role in environmental decision making".  

First Nations partnerships

The government has also committed to working in partnership with First Nations in line with commitments agreed by all jurisdictions through the National Agreement on Closing the Gap.  The role of the EPBC Act’s Indigenous Advisory Committee will be enhanced to give First Nations a stronger voice in our system of environmental protection.

A National Environmental Standard for First Nations engagement and participation in decision-making will be developed as a priority. Consistent with the recommendations in the Samuel review, this will ensure that First Nations interests and cultural heritage are identified early and can be protected as projects are designed.

These reforms are intended to run in parallel with the Government's work with First Nations representatives to co-design new standalone Indigenous cultural heritage protection laws.  We wrote about those reforms in our 25 November 2022 alert Federal Government release response to Way Forward Report.

Climate reporting

Consistent with the Samuel review's recommendations, the Plan does not propose the adoption of a climate trigger, and proponents will be required publish their expected Scope 1 and 2 emissions.  

Proponents will also be required to disclose "how their project aligns with Australia’s national and international obligations to reduce emissions", which is generally consistent with the Samuel review's recommendation that new proposals "explicitly consider the likely effectiveness of their avoidance or mitigation measures on nationally protected matters under a range of specified climate change scenarios".

Editor's note: an earlier version of this article stated that this aspect of the Plan was different from the Samuel Review.  Professor Samuel has since confirmed he considers the Plan's approach to be consistent with the review's recommendations.

What is the Plan doing differently?

While the Nature Positive Plan adopts many of Professor Samuel's key recommendations, it also takes a different approach in a number of cases.

Expansion of the water trigger

The Plan proposes to expand the water trigger to include all forms of unconventional gas, such as shale and tight gas. The Independent Expert Scientific Committee will remain central to decisions.

This approach is a significant departure from the Samuel review, which recommended narrowing the water trigger to capture cross-border water resources only, otherwise allowing State water regulations to manage impacts.

EDO funding

The press release accompanying the Plan also indicated that the Federal Government's recent budget included funding for the Environmental Defender's Office.

This places large projects – in particular large resource projects – at further increased risk of challenge by activist groups supported by the EDO.

What's next?

The Government has an ambitious timeline for these reforms, planning to introduce a bill into Federal Parliament before the end of 2023.

The goal is to prepare draft legislation in the first six months of 2023, with an exposure draft released before the final bill is introduced. The Government has also committed to "extensive consultation" with stakeholders, both on the bill and on the five initial National Environmental Standards.

The Government will need the support of the Greens or the cross bench to pass these laws in the Senate. It is not yet known whether the Government's proposed "win-win" will be enough for the Greens or whether they will push for greater reform.

Author: Paul Wilson, Senior Associate.