Environment Protection and Biodiversity Conservation Act 1999 - Essay Example

Name Tutor Course Date Strengths and Weaknesses of the Environment Protection and Biodiversity Conservation Act 1999 (Cth) The Environment Protection and Biodiversity Conservation Act 1999 (EPBC Act) came into existence in 1999 (Victoria Legal Aid, 2012, http://www.legalaid.vic.gov.au/ ). At that time the Federal government and many environment groups made a promise that it would reform the involvement of the Commonwealth in matters of environmental concern and that it would increase the conservation of the environment. Evidence shows that it has both strengths and weaknesses especially on its relationship with environmental Impact Assessment. The former Commonwealth system of EIA under the Environment Protection Act 1974 (Cth) was meant to be an initiative to pioneer environmental law in its first wave. However, the operation of the law over the years showed that there was need to amend it. International concern also saw the need to have sustainable development by combining environmental considerations into all decision making forms. In that sense the EPBC Act provides obvious advantages for Environmental Impact Assessment over the former legislation Australian Government http://www.environment.gov.au/epbc/about/history.html ) This essay will discuss the strengths and weaknesses of the Environment Protection and Biodiversity Conservation Act 1999 (Cth) and its improvement on the environmental impact assessment and the scope for reform. Strengths The EPBC Act lays bare the sensitive environmental areas that need protection through Environmental Impact Assessment (EIA). An Environmental Impact Assessment is an evaluation of the potential negative and positive impacts that may result from a particular project. The impact may have environmental, economical and social implications. An EIA serves the purpose of ensuring that decision makers bear in mind the impacts when making the decision of whether or not to undertake a project. Protection of the environment can be achieved by conducting Environmental Impact Assessments to determine the possible impact that any project may have on these sensitive areas prior to implementation. Therefore EIA is very much necessary because without it, it is not possible for people to know what effect a project may have on the environment. EIA makes it possible for people to decide whether a proposed project will add value or destroy the sensitive sections of the environment (Environmental Defenders’ Office of Western Australia, 2011, http://www.edowa.org.au/ ). Part 3 of the EPBC Act deals with issues of national environmental importance and makes it illegal to do anything that can have a major impact on those “matters” (Irwin, 2005). Currently, there are clear specifications in the EPBC Act about “matters of national environmental significance.” In addition there is one protected “matter of national environmental significance” that was added as an amendment after the law had been created. People are not required to take any action that can cause harm or damage to the specified areas and resources. The “matters” include: declared world heritage properties, places of national heritage, declared wetlands of importance to the international community, ecological communities and threatened species found on the national list, nationally listed migratory species, the Commonwealth marine environment and nuclear actions. Some of the “matters of national environmental significance” give power to the obligations of Australia under environmental treaties at the international level. In order to protect the environment, people should fulfill their obligation as laid out in the international treaties (Australian Government, 2005, http://www.environment.gov.au/epbc/publications/localgovernment.html ). To add to this the EPBC Act provides a clear national assessment and process for approving activities. The activities could be carried out by the agents of the Commonwealth or the Commonwealth itself on Commonwealth territory or in any place of the world (EDO 2011 http://www.edo.org.au/edonsw/site/default.php ). The EPBC Act becomes relevant whenever anybody or a proponent has a project or proposal that needs to be assessed for its impact on the environment under the Act. This person is required by law to refer his proposal to the Department of Environment, Water, Heritage and the Arts. The referral then goes to the public, the state concerned, the relevant territory and Commonwealth ministers to give a comment about the potential of the project to impact “matters of national environment significance.” After this, the Department of Environment, Water, Heritage and the Arts takes the role of assessing the process and making recommendations to the delegate or minister for feasibility. The minister is tasked with making the final discretion about the project. The judgment is based on the impact of the project on “matters of national environment significance” as well as its impact on economic and social wellbeing (EDO 2011 http://www.edo.org.au/edonsw/site/default.php ). Normally, the Environment Minister in the Australian government cannot get involved with a proposal if it dos not affect the “matters of national environment significance” even if there are other negative impacts to the environment. This comes about because of the powers divided between the Federal government and the states. The Government minister has no power to overturn a decision made by a state (NSW Government, 2007 http://www.environment.nsw.gov.au/cee/lfs.htm ). The EPBC Act is effective in forcing people to protect the environment because of the harsh criminal and civil penalties imposed on those who violate the Act. The maximum civil penalty goes up to$550,000 for a person and $5.5 million for a company. The criminal penalty comprises of a prison sentence of 7 years maximum and or a fine of $46,200 (EDO 2011 http://www.edo.org.au/edonsw/site/default.php ). Case Law Quite a number of companies have been compelled by law to pay penalties for damaging the environment. A few of them are sampled below. An investment company was forced to pay $62 for conservation research and protection of about 13 hectares of a habitat for endangered species after breaking national environment law. The company, Cromwell Property Securities is responsible for damaging protected native grass lands in Melbourne (http://www.environment.gov.au/epbc/compliance/judgements.html#cromwell ) An enforceable undertaking was effected on 31st October 2012 from Marloelle Pty Ltd which had cleared 4.5 hectares of an endangered ecological community between 2008 and 2011. The vegetation included Yellow Box, White Box, native grasslands and Blakely’s Red Gum. Weed management will cost $ 184,000 in the area that was not cleared and part of the money will also be used for rehabilitation, fencing and protection of the grasslands (http://www.environment.gov.au/epbc/compliance/judgements.html#cromwell ) The Department of Sustainability, Environment, Water, Population and Communities has agreed on an enforceable undertaking. The money involved in $ 80,400 which Coppercats Pty Ltd and Gallivantour Super Pty Ltd paid after having cleared vegetation by mistake. They were preparing an industrial site at East Picton in Western Australia. The department came to know of the illegal clearing of about 6.7 ha of vegetation in the year 2010. The vegetation was a habita for endangered species like ringtail possum and the Carnaby’s black cockatoo. The company was cooperative in the investigations by departmental officers and has agreed to pay for the destruction caused (http://www.environment.gov.au/epbc/compliance/judgements.html#cromwell ) Weaknesses The Commonwealth withdrew its role of Environmental Impact Assessment from those areas where its power is clear under the Constitution of Australia like Federal funding and the regulation of imports and exports. The only role it retained was the EIA roles in areas where there is direct environmental relevance to the nation such as those that have a connection to external affairs. The implication here is that most of the critical Commonwealth environmental issues have been abandoned to the states (Australian Government, 2012 https://australia.gov.au/topics/environment-and-natural-resources/environmental-sustainability ). Examples include the state freeway and highway construction projects and wood chipping for purposes of export managed by Regional Forest Agreements and funded by the EIA Commonwealth. These states have very robust financial interest as they implement these projects and cannot be regulated by the federal government. The Commonwealth has not done enough to force these states to form systems of equal standard for EIA of projects inside its area of political responsibility but where it has no direct interest as per the constitution like the state freeway and highway construction funded by the Commonwealth (Jeffery, Firestone, Bubna-Litic 2008, 67). The Commonwealth does not have a rigorous supervision of the assessments of the states about environmental matters that concern the nation. The only best way to challenge an assessment of the state that appears inadequate is to go to against the Minister of Environment when the assessment is agreed upon as something that the Commonwealth can base its approval on. The EIA of Victoria does not have any idea of ecologically sustainable development and its principles including the precautionary principle and the chances of judicial review are so much reduced outside of the federal system (Leshinsky, & Barrister 2010, pp. 89). When distinctions are drawn between matters related to national environmental importance and other effects of the project which the states have to use their own systems to assess, what results is a situation where cases are taken to court. There was a lost chance of getting a clear federal environmental code covering the control of pollution and the National Pollutant Inventory; controlling substances that deplete the ozone layer and trade in this that are hazardous (Australian Government, 2012, http://www.environment.gov.au/epbc/publications/index.html ). Scope for Reform There is room for the reform of the EPBC in a number of areas. The reform should be made in a manner that facilitates stricter and efficient EIA which is geared at environmental protection. The EPBC Act can be moved from a traditional EIA system to that which is inclusive of cumulative impacts. Cumulative Impact Assessment is seen to be more mature and that it has no radical changes to make to the EIA (Macintosh, & Wilkinson 2005, PP. 92). As the Act is administered, it is possible to see the evidence of the maturity process. Cumulative Impact Assessment appears to be more effective and comprehensive. Because of this, it can be a good direction for the growth of environmental assessment. Cumulative impact assessment is best practise EIA in its own way because it encourages sustainable development (Macintosh, pp. 402). To obtain ecologically sustainable development the nation must change its way of making government decisions. Strategic Environmental Assessment with cumulative environmental assessment can help to achieve this goal and change the manner in which the government makes decisions (Aschemann, Jahn, & Partidario 2012, pp.56). Conclusion This paper has discussed the strengths and weaknesses of the Environment Protection and Biodiversity Conservation Act 1999 (Cth). The discussion is based on the improvements the Act makes on EIA. The EPBC requires that people do not damage the “matters of national environment significance.” EIAs must be done before any project that has the potential of causing damage to this “matters” is implemented. Such a project should also not harm the economic and social systems. Some of the improvements include the increase of the referral of controlled actions, improved quality of referral and assessment documentation and more disclosure of reasons for decisions. There is a more prescriptive arrangement for Environmental Impact Assessment. Again there are opportunities for the simplification and streamlining of the process. The assessment methods are appropriate and the EPBC Act also elaborates the ecologically sustainable development. In it there are offences that have huge fines to enforce the requirements for environmental assessment. Apart from the strengths, it also has weaknesses. The Commonwealth withdrew its role of Environmental Impact Assessment from those areas where its power is clear causing the states to abandon the critical Commonwealth environmental issues. The Commonwealth has not done enough to force these states to form systems of equal standard for EIA of projects inside its area of political responsibility but where it has no direct interest as per the constitution like the state freeway and highway construction funded by the Commonwealth. Works Cited Aschemann, R.,Jahn, T., Partidario, M.R. Handbook of Strategic Environmental Assessment. Routledge, 2012. Australian Government. Environment Protection and Biodiversity Conservation Act 1999. 16 May 2005. Web, 08 March 2013 from http://www.environment.gov.au/epbc/about/history.html Australian Government. Environment Protection and Biodiversity Conservation Act 1999: Environment Assessment Manual - Implementing Chapter 4, EPBC Act. 14 May 2012. Web. 08 March 2013. http://www.environment.gov.au/epbc/publications/environment-assessment-manual.html Australian Government. History of the EPBC Act. Web. 6 May 2011. http://www.environment.gov.au/epbc/about/history.html Australian Government. Reform of the EPBC. Commonwealth of Australia.11 Feb 2013. Web. 08 March 2013. http://www.environment.gov.au/epbc/reform/index.html Cch. Australian Master Environment Guide. CCH Australia Ltd, 2010. http://www.cch.com.au/au/onlinestore/ProductDetails.aspx?ProductID=3886 Commonwealth Consolidated Acts. Environment Protection and Biodiversity Conservation Act 1999. Web. March 08 2013. http://www.austlii.edu.au/au/legis/cth/consol_act/epabca1999588/ EDO. Environment Protection and Biodiversity Conservation Act 1999. Defending the Environment Advancing the Law. 10 April 2011. Web Web, 08 March 2013. Environmental Defenders’ Office of Western Australia. Environmental Impact Assessment in Western Australia. February 2011. Web. 08 March 2013. Independent review of the Environment Protection and Biodiversity Conservation Act 1999: interim report. http://www.environment.gov.au/epbc/review/publications/interim-report.html Irwin Law. Environmental Impact Assessment in Australia: Theory and practice, Fourth edition. February 2005. Web. 08 March 2013. Jeffery, M., Firestone, J., Bubna-Litic, K. Biodiversity Conservation, Law and Livelihoods. Cambridge University Press, 2008. Leshinsky, R. & Barrister. Environmental Impact Assessment (EIA). The Law Handbook. July 1 2010. Web, 08 2013. Macintosh, A. & Wilkinson, D. Environment Protection and Biodiversity Conservation Act: A five year Assessment. July 2005. Web. March 08 2-13. Macintosh, A. Best Practice Environmental Impact Assessment: A model Framework for Australia. Australian Journal of Public Administration, Vol. 69, No. 4, pp. 401-417. NSW Government. Commonwealth Environmental Protection and Biodiversity Conservation Act 1999: Guide to Implementation in NSW. Department of Planning. May 2007. Web 08 March 2013. The University of New South Wales. Guide to Legal Research: Australian Case Law. Retrieved from http://subjectguides.library.unsw.edu.au/content.php?pid=38537&sid=289429. \ Thomas I. Environmental Impact Assessment in Australia; Theory and Practice. The Federation Press 2001. Victoria Legal Aid. Case Law. 17 December 2012. Web 08 March 2013. Wary, B. Changing the EPBC Act: More Protection and Certainty. Lander & Rogers. 29 Sep. 2011. Read More