June 2006.
What we need from our new Environment Protection Authority (EPA) and ‘Environment Protection and Management Act’
1. The government’s EPA promises:
In February 2005 the ALP government announced that it would establish an Environment Protection Authority (EPA) in the NT (Environment Minister’s statement, 18/2/05 ). The government subsequently promised (emphasis added):
“A strong EPA with the necessary resources and tools including the best environmental protection laws in Australia ”;
“An extra $1.1 million to support the EPA” and “new legislation to immediately commence an EPA with an independent board”;
“Labor will overhaul existing environment laws…the new Environment Protection and Management Act will establish the powers of the EPA”;
“Rewrite our major environment laws…enshrining the community’s right to be heard”;
“We will produce the NT’s first ‘State of the Environment Report’…a thorough stocktake of the health of our environment”;
“Minimise greenhouse gas emissions…and [introduce] mandatory public reporting of emissions by major industries, and:
“Develop an air quality monitoring network”.
( Source: Top End Environment Package, ALP election policy, 2005 ).
2. Current status of the EPA
The government has created an interim 3 person board; reorganized the Office of Environment and Heritage into a the ‘EPA Program’; carried out a review of legislation (findings not published to date); increased the EPA budget; and commenced another round of community consultation (this after the EPA issue has already been subject to a Parliamentary Inquiry and an election).
3. What is ‘best practice’ in EPAs and environment protection laws?
Environment Protection Authorities (or Agencies) operate in all Australian states. Some are better than others. Fundamental to the success of an EPA – i.e. success in protecting the environment! – is the legislation that underpins it. For an EPA to do its job properly the legislation that creates and directs it must be strong, clear and comprehensive.
3.1 The new Environment Protection and Management Act must create the NT EPA as:
A high level Authority (not ‘Agency’) which has legislated responsibilities and powers to provide strong leadership in setting environmental standards and improving environmental performance and outcomes across government, industry and the community.
An independent, stand alone, statutorily constituted authority with statutory objects, functions and responsibilities. ‘Independent’ means not subject to direction by the Minister or government.
Having formal accountability, e.g. to Parliament.
Able to carry out strategic integrated environmental planning.
Able to provide detailed independent environmental impact assessment and reporting.
Able to ‘call in’ projects for assessment and accept public referrals of projects or plans for assessment.
Diligent monitoring and auditing function to ensure compliance with environmental obligations.
An open, public appeals system to provide checks and balances on the EPA’s decisions and ensure a robust environmental decision making process.
Having precedence over all other Acts and agencies in relation to environmental protection.
Having coverage of all aspects of mining operations (unlike current situation where mine sites are exempt from key environmental legislation).
3.2 The EPA would have statutory functions:
Environmental planning and policy development, based on principles of ecologically sustainable development and taking account of cumulative impacts
Environmental impact assessment
Monitoring and enforcement
Provide a registry of environmental information
Facilitate community involvement and education
Encourage voluntary initiatives
Design environmental economic instruments
State of the Environment reporting (annual)
Audit environmental performance of other government institutions
Implement sustainability
In order to fulfil these functions, the EPA must be adequately resourced!
Environmental policy development
Environmental protection policies are strategic plans designed to protect either particular aspects of the environment, such as air quality or mangroves, or address a specific environmental problem, such as waste, or a specific industry, such as hydrocarbon refining. There is scope for development of a range of different policies in the NT, from statutory Environmental Protection Objectives under the Waste Management and Pollution Control Act to guidelines and codes of conduct such as the Guidelines for Mineral Exploration in Coastal Areas of the Northern Territory.
Environmental impact assessment
An EPA should develop an indicative list of activities which usually have, or could be expected to have, an environmental impact, and require all such proposals to be referred to it. The EPA should also be given the power to “call in” proposals which have not been referred to it. And to further ensure that no proposals which should be referred fall through the cracks, any member of the public should also be given the ability to refer proposals to the EPA, as happens in other Australian jurisdictions.
An EPA should therefore be established and given the Minister’s current powers to (1) decide which proposals should be assessed and (2) what level of assessment should apply.
The EPA should have sufficient resources to carry out its own investigations of the potential impact of a proposal. The EPA would then have sufficient information to prepare a recommendation about whether the proposal should go ahead, and if so, what conditions should be placed upon it to protect the environment. Any worthwhile EPA must be able and prepared to recommend against any given project being approved, based upon the findings of a rigorous assessment process. If the government of the day chooses to ignore that recommendation, then that is its decision. ‘EPA’ must not mean Every Project Approved!
One of the most important roles of environmental impact assessment is to ensure that the cumulative impacts of development in a given region are considered and reported on. This would be one of the responsibilities of the EPA.
Decisions about developments
In the cases where an environmental impact assessment is carried out, the EPA will produce a report and recommendations about whether the proposal should go ahead or not, and if so, under what conditions. At present, the Environment Minister sends any such report to the agency/Minister responsible for the proposal (for example, the Minister for Mines who issues mining leases or the Minister for Lands who manages pastoral leases and Crown land). That agency/Minister then has sole discretion as to whether or not to adopt the report. If it decides not to adopt it, the proposal may go ahead without any conditions which protect the environment, in which case the entire impact assessment process has been futile.
To avoid this, the decision agency or Minister responsible for approving the proposal should be required to act in accordance with the EPA’s report and recommendations unless it produces written, publicly available reasons for its decision not to do so. There should then be a process where any person can appeal that decision. This will ensure that the outcome of the environmental impact assessment process is transparent and accountable.
One of the few specific environmental approvals which are currently legally required in the NT are licences under the Waste Management and Pollution Control Act for development of landfills servicing the waste disposal requirements of more than 1000 people. The EPA, as the expert environmental regulator in NT, should become the administrator of this licensing system. The EPA should also be given the responsibility to investigate whether licences under this Act should be required for any other developments, and if so, administer those licences.
Enforcement
It is vital that any environmental law have a credible deterrent threat associated with it. This requires an environmental regulator with the statutory power, expertise and resources to properly conduct investigations for breach and to take appropriate enforcement action. As enforcement action must include the possibility of taking serious steps such as suspending development approval or prosecution, the environmental regulator must be sufficiently robust to withstand the political pressure which is usually brought to bear.
The EPA should have the power to bring prosecutions for any breach of any Act which results in environmental damage (e.g. breach of the Mining Act or the Planning Act). In order to investigate whether to bring any enforcement action or not, the EPA must have appropriate powers to require the production of information, to carry out inspections, to conduct monitoring etc.
Appeals
There must be a formal appeals process open to the public to examine key decisions:
EPA’s decision about whether to assess a proposal;
EPA’s decision about what level to assess a proposal at;
EPA’s report and recommendations about proposals;
Relevant agency/Minister’s decisions about proposals.
Conclusion
The NT is on the verge of a new and exciting development – the creation of our own EPA, with new laws underpinning it. It is vital that, as the government has promised, our EPA is strong, independent and based on ‘best practice’ laws. It will be up to the community to make sure this happens.
For further information contact the Environment Centre on 8981 1984 or email [email protected]