By Ruby Hamilton and Sarah Flynne, Solicitors, EDO Perth
The new version of the Western Australian Environmental Protection Authority’s Environmental Factor Guideline for Greenhouse Gas Emissions (GHG Guideline), published on 16 April 2020, is the latest development in response to the ongoing challenges of assessing and regulating greenhouse gas (GHG) emissions and climate change impacts of proposals in WA.
Significantly, the new Guideline establishes an objective ‘to reduce net greenhouse gas emissions in order to minimise the risk of environmental harm associated with climate change’ and outlines requirements for proponents to provide estimates of all scopes of emissions over the life of a proposal and to set targets for ongoing emissions reductions to contribute to net zero emissions. The new Guideline also expressly refers to the Paris Agreement climate goals and the scientific findings of the Intergovernmental Panel on Climate Change (IPCC).
The GHG Guideline is the second version of the EPA’s new policy for assessing the GHG emissions of industrial proposals in WA. Prior to the development of the new policy, the EPA had assessed GHG emissions as part of its guideline on air quality.
The first version of the new policy was published in March 2019, following consultation involving the EPA’s Stakeholder Reference Group (which consists of representatives from government, industry and conservation, including the EDO). This first version was withdrawn just eight days after publication, following a significant media and political campaign against the EPA by the fossil fuel industry. On 9 December 2019, following a 12-week public consultation period, the EPA published a draft of a revised version of the GHG Guideline and conducted a final round of consultation with the Stakeholder Reference Group before publishing the latest version.
The EDO was able to actively participate in this key process, both through legal advice and assistance to clients as well as public seminars, and directly through written submissions and meetings with the EPA.
The GHG Guideline is not a binding instrument for the EPA; it is intended to reflect the EPA’s approach to considering GHG in environmental impact assessment and the information it may require from proponents. It also cites the statutory obligations of the EPA in discharging its assessment and advice function – most importantly, section 15 of the Environmental Protection Act 1986 (WA) which provides that the EPA’s fundamental objective is to protect the environment of WA and to prevent, control and abate pollution and environmental harm.
Revisions to GHG Guideline
In comparison with the first version of the GHG Guideline published in March 2019 and the draft version published in December 2019, the EPA’s new GHG Guideline has been revised in certain significant ways. The GHG Guideline now:
- Sets the environmental objective to reduce net GHG emissions (rather than merely ‘minimise’ or ‘mitigate’emissions) in order to minimise the risk of environmental harm associated with climate change.
- Provides that the EPA may require proponents to:
- provide estimates of all GHG emissions (scope 1, 2 and 3) both annually and over the life of the proposal;
- develop Greenhouse Gas Management Plans that contain targets to incrementally reduce emissions and contribute to net zero emissions by 2050; and
- periodically report to the public on progress against those targets.
- Removes references to the potential for proponents being required to offset all residual (net) direct emissions, which was expressly included in the first version.
- Acknowledges that emissions growth in WA is expected to continue in the short to medium term, making the emissions reduction task all the more imperative and urgent.
- Amends statements about the geographical limits of EPA’s jurisdiction to consider GHG emissions and climate change impacts on the WA environment, clarifying that there is no strict jurisdictional boundary.
- Removes stated deference to WA Government policy and provides more detailed references to the Paris Agreement, UNFCCC and IPCC findings, reflecting a science-based approach to considering GHG and climate change.
As the GHG Guideline is a policy instrument and not legally binding, it retains a significant level of flexibility in how it might be applied by the EPA in assessments of individual proposals. Only when individual proposals are subject to assessment in accordance with the new GHG Guideline will it become clear whether the EPA is appropriately discharging its statutory obligations under the Environmental Protection Act 1986 (WA).
The EDO continues to assist clients in relation to the GHG Guideline and environmental impact assessment of proposals in WA. We will keep working to ensure that community concerns as to GHG emissions and climate change are effectively addressed by the EPA in its assessments and advice – and to assist clients to exercise their legal rights where this does not occur.