Nature Positive: The impact of national environmental law reforms

On 29 May 2024, the Commonwealth Government introduced three Bills to amend the Environment Protection and Biodiversity Conservation Act 1999 (EPBC Act). This is Stage 2 of the “Nature Positive” reforms. If these Bills pass, it will substantially amend the Commonwealth environmental law framework in Australia.

The Nature Positive reforms seek to achieve the ambitious goal of delivering:

“better, faster decisions for business and robust, fit-for-purpose laws to protect, repair and better manage the environment.”

The key reforms proposed in the Bills are:

• Environment Protection Australia (EPA): establishing the EPA to enforce environmental laws with the possibility that the EPA will be delegated primary responsibility for assessing and approving new proposals.
• Environment Information Australia (EIA): establishing the EIA which will be responsible for managing national environmental data and reporting as well as providing for the appointment of the Head of Environment Information Australia (HEIA).
• Significant increase in penalties: penalties of up to $780 million or, in criminal proceedings, imprisonment for up to seven years for breaches of environmental laws, including for a breach of conditions or a failure to obtain approval where required.
• Environment Protection Orders (EPO): new enforcement tools that provide a far-reaching, flexible method to secure compliance with the EPBC Act. EPOs are to be used in circumstances where there is an imminent risk of serious damage. It is envisaged that these will replicate similar powers under State based environmental legislation.
• Stop the clock: proponents can have a say on whether requests for further information from the regulator will pause the statutory assessment timeframe “clock”.
• Stronger compliance and environmental auditing powers: the introduction of compliance auditing in addition to the expansion of existing environmental auditing powers to apply to those persons subject to EPOs, conservations orders etc.

To facilitate the reforms, the Commonwealth Government has announced increased funding of over $120 million.

The third and final stage of the “Nature Positive” reforms will deliver the substantive changes set out in the Nature Positive Plan, including legislation to replace the EPBC Act.

Environment Protection Australia (EPA)

The Nature Positive (Environment Protection Australia) Bill 2024 (EPA Bill) will establish a new independent regulator that will enforce the Nature Positive Laws across Australia. It would establish the role of Chief Executive Officer (CEO) of the EPA, a key role in respect of the reforms. The Nature Positive (Environment Law Amendments and Transitional Provisions) Bill 2024 (Transitional Provisions Bill) provides for many of the EPA’s functions.

Many of the Minister’s powers are proposed to be transferred to the CEO of the EPA. Under the reforms, decision-making powers regarding environmental impact assessment and approvals, including the imposition of conditions, will remain with the Minister with the ability to delegate those to the EPA / CEO. The reforms seem to foreshadow that much of that decision-making authority will be delegated to the CEO.

If this occurs, it will be a fundamental shift in decision making under the national environmental law framework and there may be important flow-on effects for legal challenges to those decisions.

Environment Information Australia (EIA)

The Nature Positive (Environment Information Australia) Bill 2024 (EIA Bill) proposes to establish the Environment Information Australia as well as providing for the appointment of the Head of Environment Information Australia (HEIA).

Relevant to the approvals process is the requirement for the EIA to provide “high quality information and data” to the Minister and the CEO and identify / maintain “environmental information assets”. Accordingly, it may be that the quality and extent of the information required to be provided by proponents in support of project applications will be higher than is currently required.

What you need to know

What consultants, experts, and proponents should know about the reforms:

• More enforcement and compliance – We can expect to see an increase in compliance and enforcement action as a result of the additional funding and creation of the EPA. Proponents should be mindful of the degree of compliance required – given the exponential increase in penalties.
• Higher threshold for application documentation – given the increased focus on data, information and baseline assessments it may be that the standard of application documentation required is more robust under the reforms. This may disproportionately impact smaller projects such a moderate subdivision etc.
• Delegation of decision-making responsibility – If assessment and approval powers are delegated to the CEO, which seems likely, the change in the legal test may see a flurry of legal challenges (noting this is subject to consideration of the stage 3 reforms).
• Proposed projects and projects that have been referred but not yet determined – how will the reforms impact project timelines, costs and outcomes?

Next steps

• Opportunity to comment – On 27 June 2024, the Senate referred the Bills to the Environment and Communications Legislation Committee for report by 8 August 2024. Public hearings will be held on Friday 26 July 2024 providing an opportunity for experts, proponents, businesses and members of the public to have a say on the reforms.
• State 3 reforms – Stage 3 of the “Nature Positive” reforms are tentatively due to be released later this year, although that timeline has not been confirmed.

We are closely monitoring the introduction of the new legislation and will provide further updates as more details become available.