Law and policy developments
In the legislature
Bill to reintroduce supertrawler ban powers
Debate on the Environment Protection and Biodiversity Conservation Amendment Bill 2014, a private members’ bill introduced by former Minister for Fisheries, Senator Joe Ludwig, commenced on 28 August 2014. The sunset clause in section 390SM of the EPBC Act prevents any new declarations of commercial fishing activities (including super trawler operations) after September 2013. Senator Ludwig’s Bill seeks to repeal the sunset clause and reintroduce powers to ban declared fishing activities for up to two years while an independent panel examines the environmental and economic impacts.
EPBC Bilaterals Bill to be debated
The Environment Protection and Biodiversity Conservation Amendment (Bilateral Agreement Implementation) Bill 2014 is expected to be debated in the Senate on 1 September 2014. The Bill proposes a range of amendments to facilitate the government’s ‘one-stop shop’ policy, allowing proponents to avoid referrals for actions covered by approval bilateral agreements with State and Territory governments. Significantly, the Bill also seeks to remove the current exclusion of large coal mining and coal seam gas developments likely to have a significant impact on a water resource (the ‘water trigger’) from approval bilateral agreements.
Green and Labor Senators oppose the one-stop shop policy. The Palmer United Party has indicated that it will oppose the water trigger amendments, meaning that the Federal government would retain assessment relating to the water trigger, urging the Federal responsibilities in relation to large coal mining and CSG developments.
For a review of recent articles examining the implications of the one-stop shop policy, see the latest edition of the Australian Environmental Law Digest.
Australian Capital Territory
Planning and Development (Bilateral Agreement) Amendment Bill 2014
On 14 August 2014 the Planning and Development (Bilateral Agreement) Amendment Bill 2014 was tabled in the ACT Legislative Assembly. The Bill is intended to amend the Planning and Development Act 2007 (ACT) to facilitate the ‘one stop shop’ for environmental approvals. Debate for the Bill was adjourned until the next sitting of the ACT Legislative Assembly. The Bill allows for an ongoing approvals role for the Federal Government in environment protection matters.
New South Wales
Protection of the Environment Legislation Amendment Bill 2014
This Bill was recently introduced into the Legislative Assembly and aims to achieve the following:
clearer, stronger and more consistent penalties for offences under the POEO Act to deter contamination and radiation offences,
increased penalties under the Contaminated Land Management Actfor corporations responsible for contamination that fail to comply with an EPA direction,
power to strengthen the EPA’s arm against companies that flagrantly breach environment protection licence conditions,
increasing the ability of the EPA to prevent and respond to pollution incidents, and
allowing the EPA to require problem waste transporters to install a GPS tracking advice, which will act as a strong deterrent against illegal dumping.
Environmental Protection and Other Legislation Amendment Bill 2014
On 28 August 2014, this Bill was introduced to Parliament as the second part of the Government’s ‘greentape’ reforms. The Bill proposes several key changes to environmental legislation in Queensland, including significant increases to maximum penalties for environmental offences. For example, the maximum penalty for wilful serious environmental harm is being raised from $474,185 to $711,562 and the maximum penalty for wilfully contravening a condition of an environmental authority is being raised from $227,700 to $711,562. Additionally, the Bill introduces enforceable undertakings, similar to those under the Environment Protection and Biodiversity Conservation Act 1999 (Cth).
The Bill also makes some amendments to the contaminated land regime.
Forestry and Another Act Amendment Act 2014
On 15 August 2014, the Queensland Government passed amendments to the Forestry Act 1959 (Qld). Amongst other things, the amendments increase the maximum penalties for a range of offences in State forests, including polluting watercourses and littering.
Legislation to ‘rip up’ forest peace deal passes Upper House, with amendments
The Forestry (Rebuilding the Forest Industry) Bill 2014 was debated in the Legislative Council in the last week of August. As passed by the Lower House, the Bill proposed to make 400,000ha of forests marked as reserves under the forest peace deal available for harvesting after a six year moratorium and to allow special species harvesting in regional reserves and conservation areas. The government put forward a range of subsequent amendments to the Bill for the Legislative Council to consider, including requiring harvesting to be in accordance with a special species management plan.
By 9:5, the Legislative Council passed the legislation, subject to further amendments preventing special species harvesting in reserve areas for three years and requiring the Minister to be satisfied that the special species timber could not be obtained outside reserve areas before issuing a permit. The Legislative Council also removed the requirement for a two-thirds majority vote to approve new reserve areas, reverting to a simple majority.
The amended legislation will now go back to the Lower House for consideration. The majority Liberal government, which has the numbers in the Lower House to guarantee approval, will not bring on debate on the revised Bill until after Budget Estimates are completed.
In the courts
New South Wales
Hunter Environment Lobby Inc v Minister for Planning and Infrastructure (No 2)  NSWLEC 129
The Land and Environment Court held this week that approval for a large open cut coal mine in the Hunter Valley, NSW could be granted but that further work would be required on the conditions of approval.
The case was an objector appeal against the Planning Assessment Commission's decision, under delegation from the Minister for Planning and Infrastructure, to approve an open-cut coal mine under the former Part 3A of the Environmental Planning and Assessment Act 1979. The main issues in the proceedings were the impact of the proposal on Aboriginal cultural heritage, long term functionality of agricultural land, groundwater, protection of downstream water users, air quality health impacts from dust, and the social and economic effects of mitigation measures.
The Court held that the project would not have a significant impact on an area of significant Aboriginal cultural heritage, taking into account that the area of significance to the local Aboriginal people lay outside of the mine site, and would not have a significant impact of the long term functionality of agricultural land as the majority of the project site consists of relatively poor soil which the experts agreed has limited productivity. The applicant's contention that the precautionary principle was activated was not supported by the expert hydrogeological evidence.
Invasive Species Control Bill
The Victorian Government has introduced the Invasive Species Control Bill into Parliament. The Bill aims to provide a framework for more effective monitoring and surveillance of invasive species and management or mitigation of the risks posed by invasive species.
The Bill would apply to Victorian land and waters and provide the legislative means to monitor and control the entry, establishment, spread and impact of invasive species, including aquatic invasive species that may infest marine environments.
The Bill would replace the existing controls in the Conservation Forests and Lands Act and enable Victoria to meet its obligations under the National Environment Biosecurity Response Agreement, which was endorsed by COAG in 2012.
The Bill is available here.
Policy developments and other news
On 28 August 2014, the Government released the report of the independent panel on the review of the Renewable Energy Target (RET). The review found:
With the renewables industry now established in Australia, the main rationale for the RET hinges on its capacity to contribute towards the Government’s emissions reduction target in a cost effective manner. However, the RET is a high cost approach to reducing emissions because it does not directly target emissions and it only focuses on electricity generation. It promotes activity in renewable energy ahead of alternative, lower cost options for reducing emissions that exist elsewhere in the economy. In the presence of lower cost alternatives, the costs imposed by the RET are not justifiable.
The review has been criticised by a range of economists, climate scientists experts and supporters of the renewable energy industry. The government is expected to respond to the report within the next few weeks.
Seabird threat abatement plan released
The Threat Abatement Plan for bycatch of seabirds during oceanic longline fishing operations, a listed key threatening process under the EPBC Act, has been released. The new plan was developed taking into account public consultation and a range of new research regarding seabird bycatch mitigation measures including at-sea trials.
Report recommends changes to regulation of urban water
The Water Services Association of Australia has released a report, Economic Regulation of Urban Water, highlighting opportunities to improve efficiency in the water sector. The report identifies significant gaps in the regulatory frameworks across Australia compared to best practice and recommends a range of actions, including developing a national urban water agreement through the Council of Australian Governments.
The full report and summary are available on the Water Services Association website.
Australian Capital Territory
ACT Government going carbon neutral
The Carbon Neutral ACT Government Framework will enable and coordinate a whole-of-government approach to achieving carbon neutrality by 2020. By implementing the framework, the ACT government can help build its resilience to rising energy prices and the impacts of climate change.
ACT Offsets Policy
The Commonwealth and ACT Governments intend to enter into an approval bilateral agreement, otherwise known as a 'one-stop-shop' for environmental approvals under the Environment Protection and Biodiversity Conservation Act 1999. An offsets policy is required by the Commonwealth Government to implement the agreement.
The ACT Offsets Policy and ACT Offsets Delivery Framework is supported by an Environmental Offsets Calculator which can be obtained by contacting email@example.com. Consultation on a draft ACT Environmental Offsets Policy and Delivery Framework Position Paper and associated draft Guidelines closed on 11 July 2014. Twenty submissions were received from individuals, groups and organisations. The Guidelines have been modified in response to community consultation, but will require further consultation prior to being made statutory guidelines under the proposed changes to the Planning and Development Act through the Planning and Development (Bilateral Agreement) Amendment Bill 2014. This consultation will occur as soon as possible after the Bill is passed.
EPA Corporate Plan 14-15
The South Australian EPA has released its 2014-2015 Corporate Plan. The Plan outlines the areas for focus which include:
progressing the development of a new approach to site contamination in the planning system and reviewing the communications approach and protocols for managing site contamination legacy issues;
progressing the State of the Environment Reporting Improvement Plan;
reviewing the appropriateness of EPA licence conditions for priority sites;
finalising the Water Quality Environment Protection Policy; and
progressing the Air Quality Environment Protection Policy.
The Corporate Plan is available here.
2014-15 Budget released
The Tasmanian Liberal government released its first budget on 28 August 2014. It is a tough budget, with few wins for the environment. Cost savings are made through reductions in public sector jobs and spending, and the abolition of a range of statutory boards, including the Tasmanian Climate Action Council, Forest Practices Tribunal, Marine Farming Planning Review Panel and the Assessment Committee for Dam Construction.
There is little in the way of environmental spending in the budget, though there is a significant funding boost to allow the Parks and Wildlife Service to manage a large number of new reserves created under the Tasmanian Forest Agreement. The Budget also sets a target of 30% increase in the number of reserves covered by management plans by the end of 2015.
A summary of the environmental, planning and resource funding under the budget is available on the EDO Tasmania website.
Mines suspend operations, blame ENGO legal actions
On 19 August 2014, Venture Minerals released a statement to the Australian Stock Exchange announcing that operations would be suspended at their Riley Creek mine in the Tarkine. The announcement followed the decision by Shree Minerals earlier in the year to halt operations at its Nelson Bay mine.
Venture Minerals explicitly cited risks associated with ongoing legal appeals as a reason for its decision. The Riley Creek mine was subject to an ongoing Full Federal Court appeal in relation to the Federal Environment Minister’s decision to grant approval under the EPBC Act despite impacts on threatened Tasmanian devil populations.
Economists have downplayed the role of legal actions and indicated that the companies’ decisions relate primarily to a downturn in commodity prices.
EPA recommends development of a strategic plan to address cumulative environmental impacts in the Pilbara
The WA Environmental Protection Authority has released a report on the cumulative impacts of development in the Pilbara. The report identifies a number of risks and impacts to biodiversity in the region, including gaps in publicly available regional scale information, only 6% of the region being held as formal reserves, increased clearing of native vegetation and increased number and spread of feral animals and weeks. The impacts of mining on surface and groundwater was also highlighted including impacts on groundwater dependent ecosystems, including as a result of dewatering to creeks and rivers, as well as legacy issues such as pit lakes.
The report provides a number of recommendations for consideration by the Minister for Environment, including:
Development of a strategic plan for biodiversity conservation in the Pilbara.
The development of a central register (similar to the Offset Register) to make information (including spatial information) on clearing and rehabilitation activities in Western Australia publicly available.
The need for investment in research and knowledge sharing and the establishment of a group to establish objectives for rehabilitation and mine closure.
That the proposed 2015 pastoral lease exclusion areas within the Pilbara be afforded the highest possible level of conservation tenure.
That the EPA’s proposal for a strategic, coordinated approach to environmental offsets in the Pilbara via a strategic conservation initiative be investigated by Government in consultation with industry.
Strategic guidance outlining environmental objectives and management strategies, for high value ecosystems in addition to the work done for the Fortescue Marsh.
For the full report, click here.
Environmental Offset Guidelines released
On 14 August 2014, the Minister for Environment released the WA Environmental Offsets Guidelines as well as a revised Environmental Protection Bulletin No.1 (Environmental Offsets). The guidelines have been designed to complement the existing WA Environmental Offsets Policy and the public Environmental Offsets Register, released in 2011 and 2013, respectively.
The guidelines aim to ensure that a consistent approach is used in the application of offsets by addressing the use of offsets under Part IV (environmental impact assessment) and Part V (clearing of native vegetation) of the Environmental Protection Act 1986.
The guidelines stipulate that environmental offsets will only be applied where the residual impacts of a project are determined to be significant, after avoidance, minimisation and rehabilitation have been pursued. A model for determining application of offsets is provided in Figure 3 of the guidelines and is a good starting point for proponents trying to determine if offsets apply to their project.
For more information click here.
EPA Releases environmental compliance performance
The WA Department of Environment Regulation has released data on its environmental compliance performance for the last quarter.
The Report reveals that there were over 600 complaints and incidents during the quarter, pollution response officers attended 156 incidents, but that enforcement action was limited to 19 Environmental Field Notices and 35 letters of warning or education. The Report is available here.
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