The EPBC Act - An Overview (1)
© Andrew Walker (2)

I have the unenviable task of describing the EPBC Act in 20 minutes or less. A spell-check of ‘EPBC’ aptly comes up with ‘epic’, appropriate for an Act which is epic in size but perhaps not epic in biodiversity protection.

Purpose and scope

What is the purpose of the EPBC Act? Like all good lawyers, we will start with the objectives, set out in s.3 of the Act. Those relevant for biodiversity protection are:

- 3(1)(a) to provide for the protection of the environment, especially those aspects of the environment that are matters of national environmental significance; and

- 3(1)(b) to promote ecologically sustainable development through the conservation and ecologically sustainable use of natural resources; and 

- 3(1)(c) to promote the conservation of biodiversity; 

- 3(1)(ca) to provide for the protection and conservation of heritage; and

- 3(1)(e) to assist in the co-operative implementation of Australia's international environmental responsibilities.

We should keep these objectives in mind when judging whether the EPBC Act actually delivers.

The principal means by which the EPBC Act seeks to achieve its objectives is through an environmental impact assessment process (EIA). The trigger for EIA is the requirement that ‘controlled actions’ be approved. These are actions with a significant impact, or likely to have a significant impact, on a defined set of matters of national environmental significance. They also include actions on or outside Commonwealth land which have, or are likely to have, a significant impact on the environment on Commonwealth land.

Why is the EPBC Act limited to essentially Commonwealth land and matters of national environmental significance? Federalism is the answer. It is commonly seen as a buck-pass between Commonwealth and state governments, and the Commonwealth government has used the concept of federalism to limit the operation of EPBC Act. Is there a real bar to Commonwealth involvement? In my view probably not. Since the Franklin Dam case in 1983, there is considerable scope for the Commonwealth to get involved in EIA but it is probably true to say that it has not exercised that power to its full extent. 

For these reasons the Commonwealth's role is restricted to impacts on the matters of national environmental significance set out in the Act, which are:
· World Heritage values of a declared World Heritage property.
· The national heritage values of a National Heritage place.
· The ecological character of a Ramsar wetland. Australia is a signatory to the Ramsar Convention, an international treaty. Under the Australian Constitution, the Australian government has the power to legislate with respect to external affairs, so it has the power to require environmental impact assessment for Ramsar wetlands, relying on the international treaty. 
· Listed threatened species and ecological communities.
· Listed migratory species.
· The environment if the action is a nuclear action.
· The environment in a Commonwealth marine area.

The key trigger for EIA under the EPBC Act from a biodiversity protection perspective is the listed threatened species and ecological communities trigger.

Controlled actions

If an action will have or is likely to have a significant impact on a matter of national environmental significance, it is potentially a controlled action and therefore requires referral and possibly approval under the EPBC Act. In theory, this is a three-stage process but, having said that, the majority of referrals are assessed as not being controlled actions and therefore not requiring EIA. 

The initial process is referral to the Commonwealth Minister for Environment (‘the Minister’) to determine whether an action is a controlled action. If the Minister determines that the action is a controlled action, then there is an assessment of whether the action should proceed and, ultimately, a decision to approve or refuse to give approval for the action. 

Refusal is rare. In over six years of operation, the total number of refusals is four!

The Minister can determine that an action is not a controlled action if s/he believes it will be undertaken in a particular manner, defined as a ‘component’ decision under the EPBC Act. There is a serious concern with this – there is no means to ensure that the action is undertaken in the specified manner. Conditions may be imposed, such as a requirement to prepare a management plan, but the plan may not be made public or implemented. Unlike a planning permit issued under the Planning and Environment Act 1987 (Vic), where members of the public have the right to enforce conditions of the permit, the conditions imposed where there is a ‘component’ decision invoke a secretive process where any conditions (and documentation prepared under those conditions – such as environment management plans) are unenforceable. This is a real flaw.

Environmental impact assessment

If an EIA is required, five methods are provided, with varying degrees of rigour. In theory, there is a higher level of EIA required for matters that are seen as more likely to have a significant impact. The options are –
· preliminary documentation, which is the lowest form of assessment;
· public environment report;
· environmental impact assessment;
· public inquiry; and
· a procedure for an accredited assessment process.
 
Exemptions

There are a number of exemptions from the requirement to undertake EIA under the EPBC Act. Perhaps the most controversial and significant is that a forestry operation undertaken in accordance with a Regional Forest Agreement (‘RFA’) is exempt from the operation of the EPBC Act and from the requirement to carry out EIA. In effect all public logging in Australia is exempt from the operation of the EPBC Act, notwithstanding that it is difficult to argue that logging does not have a significant impact on listed threatened species.

The Minister can also determine it is in the national interest that a person be exempted from the requirement to obtain approval for a controlled action. In determining the national interest, the Minister may consider Australia’s defence or security or a national emergency, but is not limited to these matters. 

Exemptions also apply to 
· actions that were authorised before the commencement of the Act – it came into force on 16 July 2000; 
· actions which are a lawful continuation of a use occurring immediately before the commencement date; 
· actions covered under bilateral agreements between the Commonwealth and a State; 
· actions approved by the Commonwealth or a Commonwealth agency in accordance with an accredited management plan and declared by the Minister as an action in a class of actions.

Listings

The EPBC Act provides for the listing of threatened species, threatened ecological communities and key threatening processes. When it comes to biodiversity protection, you would think that key threatening processes and their effect on habitat and endangered species are the aspects we should manage, but the EPBC Act focuses on listing species, and not on the management of their habitat. 

There are three categories of threatened species and ecological communities: critically endangered, endangered and vulnerable. The EPBC Act and Environment Protection Biodiversity Conservation Regulations 2000 (Cwth) (‘the EPBC Regulations’) set out the criteria for listing species or communities in these categories. When it comes to key threatening processes, the EPBC Regulations are less than specific, with no criteria similar to those for listing species.

The EPBC Act enables individuals to nominate native species, ecological communities or threatening processes for listing. The EPBC Regulations set out the information that must accompany the nomination. The EPBC Act provides for a Scientific Advisory Committee to advise the Minister on whether a species, ecological community or key threatening process should be listed but the ultimate decision is at the Minister’s discretion. The Minister’s decision is not really reviewable, except on administrative law grounds, including the main ground, that the decision was unreasonable. The test for ascertaining whether this is the case is the so-called Wednesbury unreasonableness test. Under the Wednesbury unreasonableness test, an applicant for review must establish that, in summary, no reasonable Minister could make such a decision in the circumstances. That is pretty hard to establish, given the Minister's discretionary powers under the EPBC Act.

The EPBC Act has no merits review system, unlike for example Victoria’s planning system where the Victorian Civil and Administrative Tribunal (‘VCAT’) is able to review, on their merits, decisions made by Councils to issue (or not to issue, or failing to issue) planning permits. Instead, the Minister decides whether to make a listing and the avenues of review are limited. Perhaps they have not been tested to their full extent yet, because the EPBC Act does have strong objectives, so there may be scope to argue that the Minister’s decision was unreasonable in the circumstances, and to challenge the Minister's decision on other administrative law grounds.

The EPBC Act also allows the Minister to list critical habitat; that is, habitat critical to the survival of a listed threatened species or listed threatened ecological community. There are criteria set out for such listing in regulation 7.09 of the EPBC Regulations but, unlike other listing processes under the EPBC Act, the public are unable to nominate critical habitat. Critical habitat declaration is the sole fiat of the Minister and, from memory, only four critical habitats have been listed in Australia -- rather a low number.

Finally, there is no direct protection for critical habitat outside a Commonwealth area. The Commonwealth is required to protect critical habitat, but individuals have no obligation to do so. Arguably, undertaking an action that would have an impact on critical habitat would also have an impact on a listed species, triggering the requirement for an EIA under the EPBC Act. But the fact is there is no direct protection.

Plans

Once a species or threatened community is listed, the Commonwealth is obliged in theory to prepare a recovery plan and have it come into force within the timelines referred to in s.273 of the EPBC Act. The requirements for the content of recovery plans are set out in s.270. These are broad-brush, practically motherhood, statements. The EPBC Regulations do specify the required content of recovery plans in detail although those which are most useful from a biodiversity perspective are not expressed in mandatory terms. The EPBC Regulations provide that the recovery plan ‘may’ provide for these aspects, not ‘must’.

Whilst there is a process for public consultation as well as input from the Scientific Advisory Committee into the content of recovery plans, again it is the Minister who has the ultimate say. And again the recovery plan is not binding on anyone except a Commonwealth agency. Again you have to rely on an indirect trigger, arguing that acting not in accordance with a recovery plan would have an impact on a listed threatened species and therefore trigger EIA under Part 3 of the EPBC Act.

For threat abatement plans (made to manage key threatening processes), the timelines, preparation process and procedure for coming into force are similar to recovery plans. Again they are only directly binding on Commonwealth agencies. The Minister has a 24% failure rate in terms of complying with the specified timelines. This is bad but not as bad as the performance of the Victorian Department of Sustainability and Environment under the Flora and Fauna Guarantee Act 1988 (Vic) (‘the FFG Act’) where the failure rate is somewhere near the 40% mark. 

Although the Act sets out these timelines, there are no means for forcing the Minister to comply. Theoretically it might be possible to apply for an injunction under s.475, but I would not really like your chances.

National Heritage listing

The EPBC Act now provides for places to be nominated for listing on the National Heritage List, which gives partial protection through the requirement for an environmental impact assessment. You will recall that one of the triggers for EIA was that an action would have or be likely to have a significant effect on a place on the National Heritage List. The criteria for listing a place on the National Heritage List are set out in regulation 10.01(a) of the EPBC Regulation. Again, the Minister has the ultimate discretion in determining whether a place should be listed, after following the process set out in sections 324C and 324R of the EPBC Act, which outline a public consultation process.

The Act also provides for emergency listing if any of the values of a place are under threat. Lawyers for Forests has applied for emergency listing of habitat of the Baw Baw Frog on the Baw Baw Plateau and have just been advised that we need to provide further information. But we are confident that the Minister will see the light!

While listing on the National Heritage List does trigger the EIA process it should be noted that the exemptions under the EPBC Act still apply. Logging of such a place would not require approval providing it was in accordance with an RFA. 

Third party rights

Section 475 of the EPBC Act gives interested persons the right to apply for an injunction under the EPBC Act. An interested person is, in summary, a person or organisation who or which, in the two years before bringing the application, has been involved in activities for the protection or conservation of, or research into, the environment. It is an interesting question, that will no doubt be subject to robust debate, whether the EPBC Act goes far enough in providing third party rights. Have people used s.475 to its full extent? Or should it be re-written? My view is that it has probably been under-utilised to date. There is considerable scope for third party involvement under s.475, although these are long complicated cases to run so public organisations and third parties need to be well-resourced to take them on.

My final point

Don’t forget the state legislation. In Victoria, there is the FFG Act (which I’ve described as a toothless tiger quoll). Nevertheless, it is indirectly enforceable in planning matters, provided a developer requires a planning permit under the Planning and Environment Act 1987 (Vic) and the relevant planning scheme. The FFG Act and action statements made under the FFG Act do become indirectly relevant in the planning approval process in Victoria. There is also a wider scope for third parties to get involved in the planning process (as opposed to seeking an injunction under the EPBC Act) and to seek a merits review at VCAT.