Australia’s unique environment and rich biodiversity face critical challenges, and the need for robust and effective environmental laws has never been more important. In response to an independent review of the Environment Protection and Biodiversity Conservation Act 1999 (EPBC Act or Act), the Australian Government has embarked on an ambitious journey to reform Australia’s central piece of environmental law. In this article, we delve into the key proposed reforms, explore their potential impacts on renewable energy projects and propose actionable steps organisations can take in preparation.
Key Proposed Changes to the EPBC Act
The Independent Review of the EPBC Act (Review), led by Professor Graeme Samuel AC, highlighted that Australia’s centrepiece national environmental law is outdated, ineffective, and requires fundamental reform.1 In response to the Review, the Government published its Nature Positive Plan in late 2022 (Plan). The Plan profiles the Government’s commitments to repair and uplift Australia’s environment and makes clear that the reforms in the Act will be guided by three principles:2
- ensuring environmental protection laws are nature positive;
- enabling business and making it easier for organisations to do the right thing; and
- uplifting public faith in the environmental laws and systems in Australia.
Since the Plan was published, the public has been invited to consult on the proposed reforms in the Act in October and November 2023 and recently in February 2024. Below, we outline some of the key proposals published by the Department of Climate Change, Energy, the Environment and Water (DCCEEW):3
- National Environment Standards: the National Environment Standards (Standards) will improve environmental protections and guide decision-makers for regulated activities under the Act;
- Environmental Protection Agency: the Australian Federal Government has committed $121M in funding for a new, independent Environmental Protection Agency (EPA). The EPC will be responsible for project assessment and approvals that fall under the remit of the Act and for enforcing compliance with the Act and other applicable regulations;
- Environment Information Australia: $51.5M in funding has also been committed for Environment Information Australia (EIA). The EIA will oversee national environmental data and information to support objective, faster and clearer decision making;
- Regional planning: better and faster decision-making will be made under the EPBC Act by providing guidance on appropriate development areas; and
- Restoration actions and contributions: formerly known as “offsets”, restoration action and contribution arrangements (Restoration Activities) will be required to return “net positive” impacts for the environment.
These are the most drastic amendments to the EPBC Act since it came into force. But how will the reforms influence clean energy developments and the role of environmental and planning law in those projects? And how can organisations respond? Below, we outline three potential impacts and some key considerations for stakeholders.
Effect of Changes on Renewable Energy Projects and Environmental & Planning Law
Raising the bar on Restoration Activities
The policy and legislative shift to implementing Restoration Activities to compensate for all significant residual impacts and support “net positive” environmental outcomes is a significant development from current guidance on the EPBC Act. The Act currently requires that where a project impacts a protected matter (such as a threatened species), Restoration Activities evenly balance those impacts by improving the protected matter in another area. This is known as a no “net loss” Restoration Activity. However, where a protected matter is improved to a state better than it was before the impact, this is considered a “net positive” Restoration Activity.4 While present legislative guidance encourages project proponents to achieve “net positive” Restoration Activities, it is not clear how often this is achieved.
Clarity about the new “net positive” obligations under the reforms will be needed, given the impact they will have on project costs and timelines. We expect the reforms will place a stricter burden on proponents to not only identify and mitigate impacts on protected areas, species, heritage artefacts and so on, but also establish how projects will restore and even improve the affected matter through “net positive” Restoration Activities.
Restoration Activities will be assessed against the Standards. The reforms indicate, among other requirements, that a Restoration Activity must deliver “like for like” benefits to the impacted matter consistent with priorities identified for the impacted matter in conservation management documents. For example, a Restoration Activity may need to provide for more and/or better nesting grounds for a threatened species consistent with a conservation plan, if that species is to be impacted by a renewable energy project.
It appears Restoration Activities which have historically been approved are no longer likely to be sufficient as blueprints for proponents moving forward. Project proponents will instead be required to plan more sophisticated, and perhaps creative, activities they will undertake to deliver “like for like” benefits. Ultimately, this might require a greater degree of expert insight and input at the planning stages of a project to ensure compliance with the Standards.
This may necessitate further blueprint consideration as to how impacts can be mitigated to avoid environmental concerns. Considerations like avoiding soil erosion by not using machinery during heavy rainfall or choosing specific machinery that will not disturb the ground during the clearing of trees are likely to impact project planning by requiring a higher level of environmental awareness.
Provide clarity on process and procedure
The reforms streamline the application and approval process for applicable projects. The EPA will have the responsibility of assessing and approving projects. Guidance has been drafted on the assessment pathways projects can follow, assessment procedures and timeframes, required information and the EPA’s decision-making criteria.
This clarified application and approval process should assist in avoiding costly errors such as the Victorian Government’s rejection of Port of Hastings Corporation’s application for the Victorian Renewable Energy Terminal (Terminal), a large offshore wind farm. In our previous article, we identified the lessons learnt from the developer’s rejected project application, including that renewable energy proponents needed to thoroughly understand the regulatory and legal regime they worked in to secure approval. The proposed reforms may provide clarity for developers and assist them in avoiding failures to obtain consent such as that experienced by Port of Hastings Corporation through the establishment of a consistent outline.
Tools to support decision making
The reforms should also provide a range of tools to support decision making for renewable energy proponents. For example, EIA is developing a mapping visualisation tool to provide nationwide, regional level data and information on protected areas such as World Heritage places and Ramsar wetlands. The tools will assist renewable energy proponents in identifying suitable areas for development and areas where development is prohibited or allowed under certain conditions. This should help projects progress more quickly, avoiding unnecessary back-and-forward with regulators on proposed sites and allowing developers to be more targeted in their resource consent.
What comes next?
Proponents of renewable energy projects should prepare for these reforms to impact future developments. There are ample resources available online for organisations to review the changes in more detail. The DCCEEW, for example, has released recordings and information packs of the public consultation webinars on its website. Further, organisations are still able to have their say on the proposed reforms on the DCCEEW’s website here, although it is unclear how long for.
The EPBC Act reforms are set to bring important and significant changes to the environmental legal landscape in Australia. Readers should consider how their renewable energy projects may be impacted by these changes, and what their organisations can do to prepare fully for them. Perhaps most importantly, developers should anticipate a necessary mindset shift towards planning projects to be “net positive” for the environment and consider how this will factor into budgeting and project timelines.
For more information, please contact Matt Baumgurtel, Amelia Prokuda and David O’Carroll.
1Australian Government, Department of Climate Change, Energy, the Environment and Water, Nature Positive Plan: better for the environment, better for business, published December 2022 <https://www.dcceew.gov.au/sites/default/files/documents/nature-positive-plan.pdf> at iii.
2Ibid.
3Australian Government, Department of Climate Change, Energy, the Environment and Water, EPBC Act Reform, <https://www.dcceew.gov.au/environment/epbc/epbc-act-reform>
4Australian Government, Department of Climate Change, Energy, the Environment and Water, Offsets Mitigation Hierarchy, <https://www.dcceew.gov.au/environment/epbc/approvals/offsets/guidance/mitigation-hierarchy>.
