EPBC Act s158 exemption decision published, 19/12/2022 to 25/12/2022

Overview

The Environment Protection and Biodiversity Conservation Act 1999 (Cth) was enacted to provide for the protection of the environment, particularly with respect to matters of national environmental significance. This includes the protection of World Heritage properties, nationally threatened species and ecological communities, and Ramsar-listed wetlands, among others. The Act was introduced to address the need for a comprehensive legislative framework to manage and protect Australia's biodiversity and environment. The exemption notice issued by Tanya Plibersek, the Minister for the Environment and Water, under section 158 of the EPBC Act, allows for the continuation of certain activities associated with the Northern Endeavour Floating Production, Storage and Offtake Facility (FPSO) and its infrastructure, including "lighthouse operations" and "short-term well injection", until a decision is made regarding the authorisation or approval of these activities under the EPBC Act. This exemption aims to ensure the safety and security of personnel, the environment, and maritime operations while the decision-making process is underway.

Scope and Application

The notice of exemption from a provision of Part 3 under section 158 of the Environment Protection and Biodiversity Conservation Act 1999 (Cth) applies specifically to the Commonwealth of Australia, represented by the Department of Industry, Science and Resources (Industry Department), or any other Commonwealth agency, and those acting on their behalf. The exemption is granted in relation to certain activities connected with the Northern Endeavour Floating Production, Storage and Offtake Facility (FPSO) and its associated infrastructure. These activities include "lighthouse operations," which encompass essential operations such as critical inspections, monitoring, maintenance, and repair work, and "short-term well injection," which involves the pumping of water and flushing chemicals from the FPSO into the wells to remove residual crude oil. Notably, this exemption does not extend to well production, long-term injection, or crude offtake activities. The exemption is intended to facilitate the continuation of these operations until a final decision is made on whether or not to authorise or approve these activities under the EPBC Act. The exemption, which took effect on the date of the notice, was made in the national interest by the Minister for the Environment and Water, Tanya Plibersek, on 12 December 2022. The decision and the reasons behind it are publicly available through the Department of Climate Change, Energy, the Environment and Water's website.

Key Provisions

The key provisions of this piece of legislation are set out in the notice issued by the Minister for the Environment and Water under section 158 of the Environment Protection and Biodiversity Conservation Act 1999 (EPBC Act) (s158). The Minister has decided to exempt the Commonwealth of Australia, represented by the Department of Industry, Science and Resources and any other Commonwealth agencies, from the application of most of the provisions of Part 3 and Chapter 4 of the EPBC Act in relation to the continuation of “lighthouse operations” and “short-term well injection” associated with the Northern Endeavour Floating Production, Storage and Offtake Facility (FPSO) and related infrastructure (s158(7)). The exemption takes effect from the date of the notice, 12 December 2022. Lighthouse operations include essential activities such as critical inspections, monitoring, maintenance, and repair work to manage risks to personnel, the environment, and maritime safety and security, but do not include well production, long-term injection, or crude offtake activities. Short-term well injection involves the pumping of water and flushing chemicals from the FPSO through the flowlines and into the wells to flush out any remaining crude oil. The Act imposes specific obligations and requirements on the parties or entities it governs. The Minister has exempted the Commonwealth of Australia, represented by the Department of Industry, Science and Resources and any other Commonwealth agencies, from the application of most of the provisions of Part 3 and Chapter 4 of the EPBC Act in relation to the continuation of “lighthouse operations” and “short-term well injection” associated with the Northern Endeavour FPSO and related infrastructure. This exemption is in place until a decision is made on whether or not to authorise or approve these activities under the EPBC Act. This means that, during the period of the exemption, the Commonwealth of Australia, represented by the relevant department or agency, is not required to comply with the majority of the provisions of Part 3 and Chapter 4 of the EPBC Act in relation to the specified activities. The Act also outlines the consequences of any breach of its provisions. However, this notice of exemption does not specify any offences, penalties, or civil or criminal consequences for breach. The maximum penalties for offences under the EPBC Act can vary depending on the specific provision that has been breached, but they can include substantial fines and imprisonment for individuals, as well as fines for corporations. It is important to note that the exemption provided in this notice only applies to the specific activities and time period outlined in the notice, and does not exempt the Commonwealth of Australia or any other parties or entities from complying with the other provisions of the EPBC Act.