Federal environmental approvals for coal and gas projects under the spotlight

The Environment Council of Central Queensland via its legal representatives, Environmental Justice Australia (EJA), has recently requested that the federal Minister for the Environment revisit “controlled action” decisions made by previous Ministers under the Environment Protection and Biodiversity Conservation Act 1999 (EPBC Act) in respect of 19 separate coal and gas projects across Australia. EJA is urging the Minister to find that the climate-related impacts of each project require assessment before any approval is granted.

Given that the EPBC Act does not explicitly refer to greenhouse gas emissions or climate change-related impacts – neither of these matters are included in the confined list of “matters of national environmental significance” regulated by the Act – it remains to be seen whether the Minister will be willing to revoke and substitute the controlled action decisions of previous Ministers on the basis of climate change impacts. What is clear is that environmental groups are increasingly turning to legal avenues that may be available under federal environmental law to challenge or stall fossil fuel developments in Australia.

Approval process under the EPBC Act

The EPBC Act is the principal piece of federal environmental legislation in Australia which regulates particular “matters of national environmental significance”, or MNES. The MNES regulated under the EPBC Act are identified in Part 3 and include world and national heritage sites, declared Ramsar wetlands, and listed threatened species, communities and migratory species.

Notably, there is no MNES relating specifically to greenhouse gas emissions or climate change, although there have been previously-rejected calls for the introduction of a new “climate trigger” (including as part of the Samuel Review into the EPBC Act: see further https://jws.com.au/en/insights/articles/2021-articles/federal-government-releases-final-report-of-the-in).

The approval process under the EPBC Act involves the following three main steps:

• Referral – where a person proposes to take an “action”, ie a project, development or series of activities, that the person thinks has, will have or is likely to have a significant impact on one or more MNES, the person must refer the proposal to the Minister.
• Controlled action decision – after receiving a referral, the Minister must decide whether the proposed action requires approval under the EPBC Act or, in the language of the EPBC Act, whether the action is a “controlled action”. In so deciding the Minister must consider any adverse and beneficial impacts that the action has, will have or is likely to have on protected MNES, and the Minister must identify which MNES are relevant to the particular case (or, in the language of the EPBC Act, the “controlling provisions”).
• Assessment – where the Minister decides that approval is required, the action will then undergo environmental impact assessment according to the methods prescribed by the EPBC Act, before the Minister decides whether or not to approve the taking of the action, and on what conditions.

In the case of coal and gas projects, approval under the EPBC Act is in addition to any approvals required as a matter of State/Territory-based planning and environmental law. EPBC Act approval is usually the final step in the regulatory approvals process for a project, and the environmental impact assessment process is often lengthy.

Requests for reconsideration of controlled action decisions

At any time prior to the Minister granting or refusing approval for the taking of an action, a person may request that the Minister reconsider a controlled action decision on the basis that substantial new information has become available about the impacts of the action on the relevant MNES, or on the basis that there has been a substantial change in circumstances that was not foreseen at the time of the controlled action decision that relates to the impacts of the action on the relevant MNES.[1]

The applicant is required to include information in the request which demonstrates that a change in the potential impacts of the action is likely to happen with a high degree of certainty.[2] Guidance published by the former Department of the Environment and Energy (most recently renamed as the Department of Climate Change, Energy, the Environment and Water) states that a change in circumstances may include changes to the physical environment in which the action is to be taken, or changes to Commonwealth or State laws that relate to the action.[3] The addition of a new listing, eg a new threatened species, after the controlled action decision is not a valid ground for reconsideration.[4]

The Minister must then invite the designated proponent and any relevant Commonwealth or State/Territory Minister to provide comments on the request. The Minister is also required to publish the request online and invite any interested stakeholder or member of the public to provide comment. Except where a request is made by the designated proponent, the impact assessment process under Part 8 of the EPBC Act is not affected by the making of the request, subject to the outcome of the reconsideration.[5] In other words, lodgement of a reconsideration request does not the assessment process to a halt. Once the Minister has granted (or refused) an approval for the taking of the action, the Minister can no longer revoke a controlled action decision.[6]

In deciding upon a request, the Minister may either confirm the controlled action decision, or revoke the controlled action decision and substitute it with a new decision, including by removing or adding to the list of any MNES stipulated in the original decision. In other words, the outcome of a reconsideration request may require the designated proponent to assess the impacts of the action against different or additional MNES to what were originally determined.

The requests for reconsideration made by EJA

As stated above, EJA has made requests for reconsideration in respect of 19 separate coal and gas projects across Australia. While controlled action decisions were made for some of these proposals in recent times, others had controlling provisions set a number of years ago.

EJA has said that it has provided the Minister with 3000 documents and spreadsheets relating to climate change impacts, along with continent-wide mapping evidence showing the impact of recent bushfires on all of the species and places regulated under the EPBC Act. They argue that their evidence demonstrates that the climate impact of these 19 proposals would harm thousands of MNES, including threatened plants and animals, World and National Heritage areas, Ramsar wetlands, Commonwealth marine environments, marine species, migratory species, threatened ecological communities and the Great Barrier Reef.

Implications for industry

The requests represent the most recent attempt by an environmental group to prevent the approval of fossil fuel projects in Australia through the mechanisms of the EPBC Act. They follow representative proceedings brought by 8 children through their litigation representative, Sister Marie Brigid Arthur, in the Federal Court, which resulted in the Full Court earlier this year overturning a previous finding that the Minister owed a duty of care to avoid causing harm to children from climate change in making approval decisions under the EPBC Act: see further https://jws.com.au/en/insights/articles/2022-articles/a-duty-no-more-full-court-rejects-epbc-act.

In the absence of any specific mention of greenhouse gas emissions or climate change-related impacts in the text of the EPBC Act, it remains to be seen whether the Minister will be willing to revoke and substitute the controlled action decisions of previous Ministers on the basis of climate change impacts. Whilst the EPBC Act regulates both the direct and indirect impacts of proposed actions,[7] any decision to broaden the controlling provisions for one or more of these projects would go against the grain of previous EPBC Act approval decisions which have grappled with similar issues relating to the emissions profile, in particular Scope 3 emissions, of proposed actions, and their impact on MNES.