Environment Minister signals fundamental changes to national environmental law

Tanya Plibersek, Minister for the Environment and Water, took the opportunity in releasing the 2021 State of the Environment Report to publicly state that the Federal Government is committed to structural change in national environmental laws

She stated yesterday that the Government will release its response to Graeme Samuel’s review of the EPBC Act by the end of 2022 with a view to bringing legislation into Parliament in 2023 and consult on the development of national environmental standards (a key recommendation of the Samuel review). She also flagged that she will be releasing a proposal for an independent Federal Environment Protection Authority in the next few months and that fundamental changes to the regulatory system were needed.

Our ESD Team will be reporting on the Government’s proposed changes to federal environmental regulation and potential implications as they become clearer later this year.

The Samuel Review

The Samuel Review was an independent review of the Environment Protection and Biodiversity Conservation Act 1999 (Cth), released at the beginning of 2021, which recommended a rolling program of fundamental reforms to national environmental regulation.

The centrepiece of the proposed reforms are legally enforceable National Environmental Standards. Samuel envisaged that these Standards would set binding and enforceable Regulations that could be applied to multiple scales of decision-making and set "clear requirements for those that interact with the EPBC Act and clear bounds for decision-makers".

The Samuel Review included proposed Standards on the following:

• matters of national environmental significance (MNES);
• Indigenous engagement and participation in decision-making;
• compliance and enforcement; and
• environmental data and information.

The Samuel Review also recommended that Standards be developed on Commonwealth actions and actions involving Commonwealth land; transparent processes and robust decisions; environmental monitoring and evaluation of outcomes; environmental restoration (including offsets); and wildlife permits and trade.

Samuel envisaged that decisions would be consistent with the Standards, with the "rare exception" being where the Commonwealth exercises its discretion, transparently and in the public interest. According to Samuel, the Standards would evolve over time and that State and Territory laws could be amended to adopt these Standards.

The immediate amendment of the EPBC Act to enable the development and implementation of the Standards as Regulations would also include the addition to the EPBC Act of specific provisions relating to the governance, consultation, monitoring, reporting and review of the Standards.

The Samuel Review concluded that the EPBC Act should not be about stopping all development, nor should it be about permitting all development. Instead, the EPBC Act should deliver better outcomes for the environment, while allowing a sensible and sustainable approach to meeting Australia's future development needs.

While Ms Plibersek has indicated that the Government will consult on the development of national environmental standards it is not yet clear how many of the Samuel Review recommendations will be adopted. Further, in light of the ongoing debate with the Greens in relation to limiting new coal and gas-fired projects in the context of the proposed Climate Change Bill, there may be renewed pressure to include a climate change trigger into future amendments of the EPBC Act as a way of addressing the Greens' concerns.