Environmental impact assessment

Contributed by Jean-Pierre Clement and Golnar Nabizadeh and current to 1 September 2005

WHAT IS “ENVIRONMENTAL IMPACT ASSESSMENT”?

Under the Environmental Protection Act 1986 (WA) (“the Act”), the Environmental Protection Authority (EPA) may assess proposals that are likely to have a significant effect on the environment.

The purpose of the environmental impact assessment process is:

(a) to ensure that proponents take primary responsibility for protection of the environment influenced by their proposals;
(b) to ensure that best practicable measures are taken to minimise adverse impacts on the environment, and that proposals meet relevant environmental objectives and standards to protect the environment, and implement the principles of sustainability;
(c) to provide opportunities for local community and public participation, as appropriate, during the assessment of proposals;
(d) to encourage proponents to implement continuous improvement in environmental performance and the application of best practice environmental management in implementing their proposal; and
(e) to ensure that independent, reliable advice is provided to the Government before decisions are made (Environmental Impact Assessment Administrative Procedures 2002, clause 2).

There is also an environmental impact assessment process under the Commonwealth’s Environment Protection and Biodiversity Conservation Act 1999 (Cth). This process is outlined below.

WHAT CAN BE ASSESSED?

The Act refers to the assessment of “proposals”. A “proposal” is defined to mean a project, plan, program, policy, operation, undertaking or development or change in land use, or amendment of any of the foregoing. It does not include planning schemes, which are assessed under different provisions (s.48A)

The Act recognises three different categories of proposal:

1. Significant proposals – proposals that are likely, if implemented, to have a significant effect on the environment;
2. Strategic proposals – future proposals that individually or in combination are likely, if implemented, to have a significant effect on the environment; and
3. Proposals under assessed schemes – proposals that are subject to approval under a planning scheme that has previously been assessed by the EPA (an “assessed scheme”).

HOW ARE PROPOSALS REFERRED TO THE EPA?

This section explains the process of referring proposals to the EPA. Note that for all categories of proposal, referrals must be in writing. Proposals can only be referred to the EPA once unless the assessment has been terminated (for example, where the proponent has failed to provide the EPA with information when requested to do so: s38(5(j)).

1. Significant proposals

Any person (including the proponent and Minister for the Environment (the Minister)) may refer significant proposals to the EPA (s.38(1)). In addition, a decision-making authority that has notice of a significant proposal must refer that proposal to the EPA unless it is already the subject of a referral (s.38(5)) A “decision-making authority” means any public authority that is required to make a decision with respect to the proposal (for example, a local government considering a development application).

The EPA has a “call-in” power, which enables it to direct a decision-making authority or proponent to refer a significant proposal to it for assessment (s.38(5c)).

2. Strategic proposals

A proponent may refer a strategic proposal to the EPA (s.38(3)). The Minister may also refer a strategic proposal to the EPA where it appears that there is public concern about the likely environmental impacts of the proposal (s.38(4)). Members of the public cannot refer a strategic proposal to the EPA.

3. Proposals under assessed schemes

Referrals of proposals under an assessed scheme can be made by the proponent, the Minister, a decision-making authority or can be “called-in” by the EPA. (ss.38(2), (4) and (5c)). Members of the public cannot refer proposals under an assessed scheme to the EPA (s.38(2)).

A decision-making authority must refer a strategic proposal to the EPA (s.38(5)). However, this does not apply to a planning authority in respect to the assessed planning scheme where that authority forms the view that the environmental issues raised by the proposal are adequately dealt with under the terms of the assessed scheme (s.38(5b) and 48I).

WHAT HAPPENS WHEN A PROPOSAL IS REFERRED TO THE EPA?

The EPA must decide whether or not it is going to assess a proposal within 28 days of the date on which it was referred. If the EPA is of the view that there is insufficient information to enable it to make a decision on whether or not to assess the proposal, it can request any person (usually the proponent) to provide it with additional information on the proposal. Where such a request is made, the 28 day period is treated as not having begun.

Decision not to assess

If the EPA decides not to assess a proposal, the decision is usually in one of the following forms:

• Not assessed – no advice given: the EPA’s decision contains no advice to the proponent or decision making authorities;
• Not assessed – public advice given: advice provided to the proponent or decision making authorities in relation to the proposal (this advice is not legally binding);
• Not assessed – managed under Part V: this decision is that the proposal is subject to a works approval and licensing under Part V of the Act.

A person who believes that a decision of the EPA not to assess a proposal is wrong can appeal to the Minister within 14 days of the decision being published (s.100(a)(1)). The appeal must be in writing, set out the grounds of appeal, and be accompanied by a $10 appeal fee.

Decision to assess

If the EPA decides to assess a proposal, it sets the level of assessment. The level of assessment is set having regard to the nature of the proposal and the magnitude of the possible environmental impacts.

There are three decisions the EPA normally takes in considering referred proposals: the proposal be formally assessed; the proposal is unlikely to be environmentally acceptable; or that the proposal is of such a scale that it requires investigation through a public inquiry.

These different approaches are discussed as follows:

1. Formal assessment

ASSESSMENT ON REFERRAL INFORMATION (ARI)

This level of assessment will typically be applied to proposals which raise one or a small number of environmental factors which can be readily managed, but where conditions set by other authorities will not be appropriate.

ENVIRONMENTAL PROTECTION STATEMENT (EPS)

This level of assessment is typically applied to proposals of local interest that raise a number of significant environmental factors which can be readily managed, but where it is considered that Ministerial conditions are required to ensure the proposal is implemented in an environmentally acceptable manner. This level of assessment does not require the proponent to undertake a formal public review period due to the adequate consultation having been undertaken in the development of the proposal.

PUBLIC ENVIRONMENTAL REVIEW (PER)

This level of assessment applies to proposals of local or regional significance that raise a number of significant environmental factors, some of which are considered complex and require detailed assessment to determine whether, and if so how, they can be managed. The EPA considers that such proposals should be subject to a formal public review period, and the setting of Ministerial conditions to ensure they are implemented and managed in an environmentally acceptable manner.

This level of assessment requires the proponent to prepare a PER document for public comment for a period of between four to eight weeks. Details of this public consultation period will be advertised in the EPA’s regular Monday advertisement in The West Australian and on its website. The proponent must respond to submissions raised, which is followed by the EPA preparing a final report to the Minister.

ENVIRONMENTAL REVIEW AND MANAGEMENT PROGRAM (ERMP)

This level of assessment applies to proposals of State interest that raise a number of significant environmental issues, many of which are considered to be complex or of a strategic nature. Proponents must prepare an Environmental Scoping document setting out the environmental factors raised by the proposal. The proponent will then be required to prepare the ERMP in accordance with the Scoping Document.

When the EPA is satisfied the ERMP document has addressed all of the environmental factors, the proponent will be required to release it for a public review period (normally between 10 and 12 weeks). Details of this public consultation period will be advertised in the EPA’s regular Monday advertisement in The West Australian and on its website. The proponent must respond to the conditions before the EPA prepares its final report to the Minister.

2. Proposal unlikely to be environmentally acceptable (PUEA)

This level of assessment will apply to proposals that are clearly in contravention of established or applicable environmental policy, standards or procedures, could not be reasonably modified to meet the EPA’s environmental objectives, or are proposed in a special environmental area. Under this level of assessment, the EPA prepares a report which explains that the proposal is unacceptable. The proponent may appeal to the Minister and request that the proposal be formally assessed.

3. Public Inquiry

The EPA may initiate a Public Inquiry, with the approval of the Minister, to assist in the assessment of a proposal which is very complex and of intense public interest or such other reason determined by the EPA. A Public Inquiry has the same powers as a Royal Commission.

Appeal against level of assessment

A person who believes that the level of assessment set by the EPA in relation to a proposal is inadequate can appeal to the Minister within 14 days of the decision being published (s.100(1)(b)). The appeal must be in writing, set out the grounds of appeal, and be accompanied by a $10 appeal fee.

WHAT CONTROLS APPLY DURING AN ASSESSMENT?

It is an offence for a person to implement a proposal before the conclusion of an environmental impact assessment (s.41A(1)). The maximum penalty is a fine of $62,500 for an individual or $125,000 for a body corporate. Minor or preliminary works can be undertaken with the consent of the EPA (s.41A(3)).

A decision-making authority that has referred a proposal to the EPA or which has been informed by the EPA that a proposal is being assessed cannot make any decision that could have the effect of allowing the proposal to be implemented before the Minister determines the matter (s.41).

WHAT HAPPENS AFTER THE ASSESSMENT CONCLUDES?

Publication of assessment report

Within six weeks of the conclusion of an assessment process, the EPA must prepare an assessment report to the Minister setting out:

• what the EPA considers to be the key environmental factors identified in the course of the assessment; and
• the EPA’s recommendations as to whether or not the proposal may be implemented and, if so, the conditions and procedures, if any, which should apply (s.44).

The Minister is to arrange for the report to be published as soon as possible and for copies of the report to be given to other Ministers with an interest in the proposal, relevant decision-making authorities and the proponent (s.44(3)).

Consultation with other decision-making authorities

The Minister is required to consult with other decision-making authorities with a view to reaching agreement about whether or not the proposal should be implemented, and any conditions that should be placed on the approval (s.45(2)). If agreement cannot be reached, the matter is to be referred to the Governor (where the other decision-maker is a Minister) or an independent appeal committee (where the decision-maker is not a Minister): s45(3).

Ministerial statement and conditions

Once agreement has been reached or the matter settled by the Governor or the appeal committee, the Minister is to release a statement which either approves the development subject to conditions, or which states that the proposal may not be implemented (ss.45(5) and (8)).

A person who implements a proposal contrary to the Minister’s decision commits an offence (ss.47(1) and (4)). The maximum penalty is a fine of $125,000 for an individual and $250,000 for a body corporate.

Any person who believes that a project is being implemented that does not comply with the decision of the Minister may lodge a complaint with the Department of Environment (s.48).

ENVIRONMENTAL IMPACT ASSESSMENT UNDER COMMONWEALTH LAW

In addition to the State environmental impact assessment process, certain actions may also be subject to assessment under the Commonwealth’s Environment Protection and Biodiversity Conservation Act 1999 (EPBC Act).

The EPBC Act is administered by the Department of Environment and Heritage in Canberra. The Department has a comprehensive website which is a useful source of material relevant to the different aspects of the Act: www.deh.gov.au.

What “actions” are subject to control?

Under the EPBC Act, a person proposing to undertake an “action” must refer that action to the Commonwealth Environment Minister where:

• it is likely to have a significant impact on a matter of national environmental significance;
• it is carried out by a Commonwealth government agency and is likely to have a significant impact on the environment anywhere in the world; or
• it is likely to have a significant impact on the environmental values of Commonwealth land.

An “action” is defined in the EPBC Act to include a project, development, undertaking and an activity or series of activities.

The purpose of the referral is to allow the Minister an opportunity to determine whether the action requires a full environmental impact assessment.

What is a “matter of national environmental significance”?

The matters of national environmental significance are:

• World Heritage properties;
• National Heritage places (from 1 January 2004);
• Ramsar wetlands of international significance;
• listed threatened species and ecological communities;
• listed migratory species;
• the Commonwealth marine area;
• nuclear actions (including uranium mining); and
• any other matter prescribed by regulations (at the time of writing, there were no additional matters prescribed).

If an action is likely to have significant impact on any of these things, the proponent must refer it to the Federal Minister. Failing to refer a proposal to the Federal Minister when required to do so is an offence. The maximum penalty is a civil fine of over $5 million.

Can any person refer an action?

Unlike the situation in Western Australia, the EPBC Act does not allow a third party to refer an action to the Federal Minister. Accordingly, only a proponent or a Government agency can make a referral. If you are concerned that an action that may have an impact on a matter of national environmental significance has not been referred to the Federal Minister, you can raise your concerns with the relevant WA Government agency and request it to make a referral.

Exemptions from requirement to refer

An action does not have to be referred to the Federal Minister where it:

• is approved under a State management plan that is accredited by the Commonwealth under a bilateral agreement;
• is approved under a Commonwealth management plan that is accredited by the Federal Minister;
• is a forestry operation taken in a Regional Forest Agreement region; or
• has been authorised by a Government decision on which the Minister’s advice has been sought.

In addition, an approval is not required for an action that is a lawful continuation of an activity that was occurring immediately before the commencement of the EPBC Act (this exception does not apply to an enlargement, intensification or expansion of an existing use).

What happens when a proposal is referred to the Minister?

Where an activity is referred to the Federal Minister, the Minister needs to determine whether the activity is a “controlled action”. If it is, then it will need to go through an environmental impact assessment process.

A “controlled action” is an action that is likely to have a significant impact on a matter of national environmental significance (s.67).

What is a “significant impact”?

The key question for the Minister in considering a referral is whether it is likely to have a significant impact on one or more of the matters of national environmental significance.

The question of what is a “significant” impact has been the subject of two important Court cases. In Booth v Bosworth [2001] FCA 1453 the Federal Court held that the expression “significant impact” means an impact that is “important, notable or of consequence having regard to its context or intensity”.

In Minister for the Environment v Queensland Conservation Council (Nathan Dam Case) [2004] FCAFC 190 the proposal at issue was the development of a dam for the purpose of providing water for industrial and agricultural land uses. The Full Court of the Federal Court held that in considering whether a proposal was a controlled action, the Minister was required to take into account direct and indirect impacts that might flow from that action, regardless of whether those consequences are within the control of the proponent or not.

The Department publishes Administrative Guidelines which provide some guidance on what sort of impacts might be considered “significant” for the purpose of different matters of national environmental significance. These are available on the Department’s website at: www.deh.gov.au/epbc/assessmentsapprovals/guidelines/index.html. At the time of writing, these Guidelines were under review.

Mode of assessment

If the Minister determines that an activity is a “controlled action”, it must be formally assessed before it can proceed.

Assessments are generally carried out by the Commonwealth, except where the terms of a Bilateral Agreement apply. Such an agreement has been entered into between the Commonwealth and WA. Under this agreement, the assessment processes under the EPBC Act will not apply to an action in WA which is assessed by the Environmental Protection Authority (EPA) at the level of Public Environmental Review (PER) or Environmental Review and Management Program (ERMP) and where certain minimum steps in those processes are complied with. Where the agreement does not apply, the Commonwealth assesses the proposal.

Commonwealth Minister decides whether to grant approval

After an assessment, the approval of the Commonwealth Minister will be required before any proposal can go ahead. The Commonwealth Minister must decide whether to approve the action within 30 business days of receiving the relevant assessment report.

In making a decision, the Federal Minister must take into account:

• anything relating to the particular issue that triggered the assessment, such as the World Heritage values of World Heritage sites;
• economic and social matters;
• the principles of ecologically sustainable development;
• the EPA’s assessment report relating to the action;
• the public environmental impact assessments or reports prepared by the proponent;
• any other information the Minister has on the relevant impacts of the action;
• any relevant comments given to the Minister by another Minister;
• the precautionary principle (that is, the lack of full scientific certainty should not be used as a reason for postponing a measure to prevent degradation of the environment where there are threats of serious or irreversible environmental damage); and
• the proponent’s environmental history (s.136).

The Minister may approve the taking of the action and may require that an action be carried out only on specified conditions. These can include conditions requiring that a bond be provided by the proponent as security, or that the development be subject to independent environmental auditing. The approval and all relevant conditions will be publicly available.

What can I do if I disagree with the Minister’s decision under the EPBC Act?

There is no general right of appeal against the Minister’s decision to approve the taking of an action or to appeal any of the conditions of the approval. However, if the Minister has made an error of law in making the decision, it is possible to have that decision reviewed in the Federal Court.

What happens if approval is not obtained or a condition of approval is breached?

It is an offence to carry out an action which requires approval without first obtaining that approval. The maximum penalty is $1.1 million and/or 7 years jail for an individual and $5.5 million for a corporation. It is also an offence to breach the conditions of an approval (s.142).

The Minister can take legal action to prevent an action from continuing, and prosecute the proponent for any illegal activity that has taken place. The Minister can also suspend or revoke an approval where a breach of an approval or condition has occurred, or where the impacts identified were inaccurate because of negligent or deliberate omission (s.144).

It is possible for some individuals or conservation groups to take their own legal action, such as applying for an injunction to stop illegal works from proceeding (s.475).

Does the EPBC Act override State and Territory law?

The EPBC Act puts in place approval requirements that are additional to existing approvals under State and Territory laws.

This means that a proposed activity still needs to be approved under all applicable State or Territory laws and other Commonwealth laws, even if approved under the EPBC Act.