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EPBC Act Reform: Improving our national environmental law The Problem The Australian Government’s regulatory reform agenda (to hand over federal environmental approvals to the States) has dominatedAustralia’s environmental policy narrative for the last 5 years. This complex and controversial reform has come to be known as the ‘one stop shop’, but would actually involve eight states and territories trying to do the Commonwealth’s job. Outsourcing approval powers for national environmental impacts has no clear public benefit, and potentially involves significant environmental risk. As the State of the Environment Report 2011 concluded: Our environment is a national issue requiring national leadership and action at all levels…The prognosis for the environment at a national level is highly dependent on how seriously the Australian Government takes its leadership role. Accordingly, Humane Society International (HSI) commissioned EDO NSWto suggest the key reforms needed to strengthen our national environmental law. The Solution Australia’s environment policy under the Environment Protection and Biodiversity Conservation Act 1999 (EPBC Act) needs strengthening to better protect matters that are of national environmental significance. These recommendations provide a positive alternative to the entrenched negative policy agenda of recentyears. They also drawonseveral balancedandconsultative recommendations of the Independent Review of the Act in 2009 (Hawke Report). Our Top 12 Proposals for EPBC Act Reform The Australian Government should abandon the controversial policy to hand over approval decisions to state governments for impacts on Matters of National Environmental Significance (MNES). This is consistent with a large majority of expert and public opinion on federal responsibilities. Dropping the final and most concerning approval stage of the so-called ‘one-stop shop’ need not necessarily affect the assessment bilateral agreements already in place. Those allow states to assess impacts on MNES. But it is crucial that: • State laws are amended to require equivalent or better standards for assessment and public scrutiny (verified by independent review); • the Commonwealth retains the power to approve or refuse national impacts; and • the Government re-engages with stakeholders to consider alternative improvements to the Act. An independent statutory National Environment Commission should be established to: • Oversee the adequacy of assessment bilateral agreements and strategic assessments (see below) • Advise on national environmental policy priorities • Conduct and consult on State of the Environment Reports every two years, and • Work with government agencies to deliver national environment accounts by 2020. Strategic assessment processes under the EPBC Act should be strengthened. A recent increase in the use of strategic assessment (Part 10 of the Act) continues to emphasise ‘streamlining’ of project approvals, without the additional safeguards recommended in the Hawke Review. We support implementation of Hawke recommendation 6 to make strategic assessment processes ‘more substantial and robust’, including a ‘maintain or improve environmental outcomes’ test, and mandatory assessment of cumulative impacts of past, present and likely future activities. Enact a new trigger for federal oversight of major greenhouse polluting activities. Given the increasing need to bring Australia’s greenhouse emissions within a national carbon budget, the EPBC Act should require federal approval (or refusal), assessment criteria and conditions on projects with major greenhouse footprints. Enact a listing process and trigger for ecosystems of national significance. The Hawke Review (recommendation 8) proposed specific criteria for listing nationally significant ecosystems. These included high biodiversity and habitat values, critical ecosystem functions, connectivity between ecosystems, and resilience-building to landscape threats such as climate change. This is consistent with protecting biodiversity at a landscape-scale, promotes climate resilience, and allows nationally important ecosystems (such as wetlands) to be protected before they are threatened. Enact a new trigger for protection of the national reserve system by creating a federal safety net to assess significant impacts on national parks. 12 EDO NSW SENIOR POLICY AND LAW REFORM SOLICITOR • NARI SAHUKAR