1 March Final Report of the Independent Review of the Environment Protection and Biodiversity Conservation Act March 1, 2021 By Sally Parker Environment, General, Mining, Resources and Energy EPBC, Mining, Energy, HabitatReform 0 The Final Report of the Independent Review of the Environment Protection and Biodiversity Conservation Act 1999 (the EPBC Act) has now been released to the public. The report, delivered by Professor Samuel, contains 38 individual recommendations to be implemented over two years. In a recent media release, the Minister for the Environment, Sussan Ley, said that 'the Government was committed to working through the full detail of the recommendations with stakeholders.’ Problems identified by the report The Report was scathing about the current EPBC Act. Among its fiercest criticisms was the following: The environmental trajectory is bad and getting worse. Changes to land use, habitat loss and invasive flora and fauna are all putting Australia’s natural environment under pressure. Climate change is exacerbating the problem. On the current trajectory, the environment cannot withstand these threats. Commonwealth decisions are case-by-case, and don’t consider cumulative effects even though environmental systems are connected. This is exacerbated by the construction of the EPBC ACT, which doesn’t facilitate integration between federal, state and territory governments. The EPBC was intended to act in concert with other Commonwealth initiatives. However, these have largely become disconnected or discontinued over time, meaning that planning, funding and regulation are not well integrated. The EPBC is perceived by industry as cumbersome and slow. One point of contention relates to the length of time it takes to get an approval: 1,009 days or nearly three years for a complex resource-sector project. The need to also get approval from state or territory governments duplicates the effort for little benefit. Industry has also submitted their concern that legal challenges are used as a tool to increase cost and delay for business. Recommendations The Final Report contains a substantial number of recommendations. These include: The creation of National Environmental Standards (NES). These will determine how outcomes under the EPBC Act are measured and achieved. State and Territory governments must adhere to the NES in their environmental management and regulatory processes. The NES will be outcome-focused, rather than process-driven, which will increase transparency and provide certainty for industry. A ‘one touch’ regime in which States and Territories can assess projects and manage approval processes on behalf of the Commonwealth. This would remove duplication, speed up the approval process and save money. The establishment of an Ecologically Sustainable Development (ESD) Committee, which comprises an independent Chair and the Chairs of related advisory committees. This provides for a single independent body to provide transparent policy advice to the Environment Minister, further streamlining the approvals process. Broad retention of the current appeals process, but with adjustments to legal review provisions to provide for limited merits review for development assessment and approval decisions made under the EPBC. The restriction of the operation of the ‘water trigger’ to only those actions which would have a significant impact on cross-border water resources. The inclusion of offsetting requirements and arrangements in the EPBC Act, which would also require proponents to report on the emissions profile of any proposed development. Additional mechanisms should be put in place to encourage private investment. These might include co-investing with private capital and exploring opportunities for greater collaboration between the private sector and government. The effects of reform on the mining and energy sector The immediate priority of the government is to implement ‘single touch’ approvals and develop national environmental standards in order to streamline the approval process. This has the potential to slash approval timeframes in half, saving the mining and energy sector significant time and cost. Further stages of reform are anticipated and have been agreed in-principle at National Cabinet. In time, these may herald an era of national cooperation and greater transparency that will help to secure a better environment while boosting jobs. In the meantime, mining and energy companies would be wise to explore ways to work collaboratively with government to find, in Professor Samuels’ words, “market-based solutions for better habitat reform that will significantly improve environmental outcomes while providing greater certainty for business”. Related Articles Implications of the Interim report on Commonwealth environmental protection laws Professor Graeme Samuel recently released his Interim Report of the Independent Review of the Environment Protection and Biodiversity Conservation Act 1999 (the EPBC Act). The report is highly critical of the EPBC Act, reporting that it neither ensures effective environmental and biodiversity protections nor efficiently regulates business. In the report, Professor Samuel makes several recommendations, some of which have already become priority areas for the government. These have significant implications for the energy and resources industry. 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