Actions Determined as Requiring Approval, Actions Determined as Not Requiring Approval and Decision on Approval

Overview

The Environment Protection and Biodiversity Conservation Act 1999 (EPBC Act) was enacted to provide for the protection of the environment, particularly aspects of the environment that are matters of national environmental significance, through the identification and management of the impacts of proposed actions. This Act was introduced to address the problem of environmental degradation and the need for a cohesive framework to manage and protect Australia's unique biodiversity and ecosystems. The EPBC Act is administered by the Australian Parliament, with the policy objective of ensuring that the Commonwealth's environmental responsibilities are met through effective regulation and management of activities that have, or could have, a significant impact on the environment. The Act seeks to balance environmental protection with economic development and social considerations, providing a mechanism for the approval, assessment, and monitoring of activities that may affect the environment.

Scope and Application

The Environment Protection and Biodiversity Conservation Act 1999 (EPBC Act) applies to a broad range of actions that may impact matters of national environmental significance, including wetlands of international importance, listed threatened species and communities, and listed migratory species. The Act extends to persons and entities involved in activities such as energy generation and supply, manufacturing, and transport infrastructure projects, across various states in Australia, including Victoria, Western Australia, and Queensland. The scope of the Act includes the assessment and potential approval or disapproval of specific projects, as evidenced by the notifications and decisions published by the Department of the Environment and Energy. Notably, the Act also incorporates a mechanism for the issuance of conditions upon approval to mitigate any environmental impact. The geographic reach of the EPBC Act is national, with jurisdiction over both Commonwealth and state lands, ensuring a unified approach to environmental protection across Australia. While the Act broadly applies, certain exclusions and exemptions may exist, particularly in relation to state-controlled activities, which are subject to the provisions of subordinate instruments and bilateral agreements. The Act’s application may be further extended or restricted through regulations and guidelines established under its authority.

Key Provisions

The Environment Protection and Biodiversity Conservation Act 1999 (EPBC Act) contains provisions that govern the approval of certain actions, notably through sections 75 and 133. Under section 75, the Act identifies actions that require approval, such as those impacting listed threatened species and communities, wetlands of international importance, and listed migratory species (sections 16, 17B, 18, 18A, and 20). For instance, in the case of APA Transmission Pty Limited, the proposed Crib Point to Pakenham Gas Pipeline in Victoria required approval due to its potential impact on listed threatened species and wetlands of international importance (section 16 and 17B). Similarly, AGL Wholesale Gas Limited's Gas Import Facility at Crib Point, Victoria, also required approval under these sections. Conversely, section 75 also includes actions that do not require approval, as demonstrated by Main Roads' South Coast Highway Road Widening project in Albany, Western Australia, which was determined not to require approval (section 75). The Act imposes obligations on entities to ensure that any proposed actions that may impact listed species, communities, or other protected areas are assessed and, if necessary, approved. This includes providing comprehensive environmental impact assessments and demonstrating how the proposed action will mitigate any potential harm. For example, Albemarle Lithium Pty Ltd, in its proposal for a lithium hydroxide manufacturing plant in Kemerton, Western Australia, had to submit detailed information on how the project would affect the environment, leading to its approval with conditions (section 133). The obligations extend to continuous compliance with the conditions set by the approval process, ensuring that the environmental impact remains within the approved parameters. The EPBC Act also outlines consequences for non-compliance with its provisions. Offences under the Act can result in both civil and criminal penalties. Civil penalties may include substantial fines, up to several hundred thousand dollars, depending on the severity and frequency of the breach. Criminal penalties can result in imprisonment, with maximum penalties varying based on the specific offence. For example, knowingly causing harm to listed threatened species or communities can lead to fines of up to AUD 1.1 million and imprisonment for up to five years (section 474). The Act aims to enforce strict compliance to protect Australia's biodiversity and environment effectively.