By Rachel Walmsley, Head of Policy & law Reform & Frances Medlock, Commonwealth & Government Liaison Solicitor
The climate and biodiversity crises – and solutions – are inextricably linked. The race is on to ensure we have laws that bring greenhouse gas emissions from fossil fuels down, ensure a rapid and just transition to renewable energy, and reverse environmental decline to establish a ‘nature positive’ Australia.
In this latest update on national environmental law reform, we examine the cross-section of nature and climate laws, and specifically focus on the necessary principles to carve out a new pathway for assessing and approving renewable energy transition projects. We examine how new national environmental laws can and must facilitate the renewable energy transition by delivering outcomes for climate, nature and communities.
To meet the Paris Agreement Goal of limiting global temperature rise to 1.5 degrees Celsius, there needs to be a large-scale energy transition from fossil fuels to renewable energy. There are significant opportunities for Australia to be a leader in renewable energy technology and production, and there is an urgent need for renewable energy projects and transmission capacity to be operational as soon as possible to meet legislative targets. Australia also has a role in supplying minerals necessary for the energy transition.
In acknowledging this, we also acknowledge that renewable energy projects will have impacts and, in some instances, significant consequences. The urgency of the decarbonisation task should not be to the detriment of First Nations communities, ecological sustainability and environmental integrity, Australia’s human rights obligations, or our Pasifika neighbours. The climate and biodiversity crises – and solutions – are intrinsically linked, and tackling emissions reductions to the detriment of biodiversity is not an ecologically sound approach.
The renewable energy transition presents an opportunity to engage with environmental concerns, community consultation processes, and First Nations cultural heritage protection in a different way than has been the historical experience in respect to the fossil fuel industry and other mining developments. Laws can, and should, be designed to deliver outcomes for climate, nature and communities.
The role of national environmental laws in the renewable energy transition
The Environment Protection and Biodiversity Conservation Act 1999 (EPBC Act) is Australia’s 20 year old national environmental law framework and is in desperate need of reform. It provides pathways for environmental assessment and approval of projects likely to have a significant impact on matters of national environmental significance (MNES), including World Heritage sites, internationally protected wetlands, threatened species, and the Great Barrier Reef.
Incomprehensively, in 1000 pages, the aged Act fails to effectively and comprehensively address the biggest threat to nature – climate change. The current Act fails to prevent climate harm by allowing fossil fuel projects to be approved without their full emissions and climate impacts being properly assessed. It also fails to provide a clear pathway for the approval of the necessary renewable energy transition projects.
Many renewable energy projects will need to be assessed under the EPBC Act (or new ‘nature positive’ laws) where they are likely to have an impact on matters of national environmental significance, including large-scale wind and solar farms and associated transmission infrastructure, green hydrogen projects, as well as projects relating to extraction and processing of minerals required for the renewable energy transition. The ongoing reform of the EPBC Act is an opportunity to ensure Australia’s national environmental laws are designed to avoid and minimise these impacts, and deliver outcomes for climate, nature, and communities.
The reforms underway to the EPBC Act, including those set out in the federal government’s Nature Positive Plan, provide an opportunity to engage with environmental concerns, community consultation processes, and First Nations cultural heritage protection in a different way than has been the historical experience under the current Act. This legal update sets out recommendations in 9 key areas to ensure Australia’s environmental legal framework is fit for purpose as the renewable energy transition gathers pace.
1. National nature laws must prevent further climate harm.
First and foremost, Australia must reduce greenhouse gas emissions consistent with a carbon budget based on science and our international commitments to limit global temperature rise to below 1.5 degrees Celsius above pre-industrial levels. This requires environmental laws which prohibit developments which have unacceptable climate impacts, including new fossil fuel projects. This involves establishing new objectives, duties, and a ‘climate trigger’ for assessing projects, as well as embedding climate considerations into all relevant decision and plan making under the Act. See EDO’s briefing paper, Climate reforms needed in our national environmental law: Preventing climate harm (September 2023).
2. Best practice principles for environmental approvals must apply to all types of projects.
Climate impact assessment must be undertaken for all projects. Renewable energy projects, including transition minerals projects, should not be exempt from, or ‘fast-tracked’ through, environmental impact assessment processes just because of their role in the energy transition. Industry carve-outs historically have been to the detriment of nature, community and human rights, and will likely undermine community confidence in the new Act as well as the social licence of the renewable transition. Instead, best practice principles for environmental approvals should apply.
This includes the principles of ecologically sustainable development, including the conservation of biological diversity and the principle of intergenerational equity. Moreover, decision-making must be based on the best available science and apply the precautionary principle where there is a lack of scientific certainty. The new laws must apply these principles to all development, including renewable energy projects. See EDO’s list of 12 principles for renewable energy transition projects.
3. New laws must make First Nations consultation and consent a priority.
Any proposed renewable energy transition project must involve consultation with First Nations Communities that is early, iterative, and culturally appropriate; and that adheres to the standard of free, prior and informed consent under United Nations Declaration on the Rights of Indigenous Peoples. This must be reflected in the new laws. First Nations Communities must be empowered and resourced to engage in the design, delivery and benefits of projects, policies, and decision-making processes relating to transition minerals mining and renewable energy infrastructure, as they see fit. Similarly, the development of the Standard for First Nations Engagement and Participation in Decision-making – by First Nations for First Nations – must be a priority as the draft legislative package is progressed.
In addition, the federal government must urgently progress the reform of Australia’s cultural heritage laws. This process should be led by First Nations Peoples for First Nations Peoples. To leave these crucial reforms off the agenda would be unacceptable, and reform must progress alongside the EPBC Act changes.
4. Regional energy planning and strategic environmental assessment will be essential.
The government has committed to implementing a system of regional planning to identify areas to be classified as High Environmental Value where development will be largely prohibited, areas open to development (Development Priority Areas), and areas in which projects will be subject to environmental approvals (Moderate Environmental Value). These regional plans, as well as strategic environmental assessments under the EPBC Act, provide an opportunity to consult early and strategically on the appropriate siting of renewable energy related projects.
Through these processes, comprehensive environmental data (including relating to biodiversity, hydrology, and tangible and intangible cultural heritage) must be collected, and areas where land has previously been developed, impacted or degraded should be identified, and prioritised for development. Regional plans must be able to accommodate new values or risks as these come to light.
Areas of High Environmental Value must be off-limits, including where proposals will be clearly unacceptable. Areas to be identified and protected upfront include, for example, national parks, World Heritage areas and values, high conservation value land, critical habitat, wetlands, and culturally significant sites.
5. Renewable projects must be designed to avoid and minimise impacts, with biodiversity offsetting a last resort.
As outlined in the Nature Positive Plan, a new National Environmental Standard for biodiversity offsetting will be implemented as part of the federal government’s reforms. The new Environmental Protection Authority (EPA) must be adequately resourced to assist proponents of renewable energy related projects to understand their obligations under this Standard. Project design requirements should prioritise the use of existing infrastructure or corridors, and where new developments are required, apply the ‘mitigation hierarchy’ to impacts. That is, proponents must demonstrably avoid, then minimize impacts, and only use environmental offsets as a genuine last resort.
For all renewable projects, environmental offsetting should only take place when best practice principles can be applied – including clear requirements for net gains in biodiversity, like for like offsetting, additionality, and in-perpetuity protection. The option to pay into a ‘conservation fund’ to destroy nature, without securing a like for like offset, does not reflect these best practice principles.
6. Environmental management plans must address full lifecycle impacts.
Where appropriate there should be fully funded rehabilitation, restoration, and recycling plans for end of project works, and full lifecycle impacts addressed in environmental management plans. Projects should be funded to ensure that the rehabilitation and restoration of project sites is addressed, including early in the approval process.
In relation to transition minerals, recycling and re-use should be prioritised and factored into demand projections, rather than policy designed on unlimited extraction.
7. Community engagement, consultation and participation are crucial.
The essential energy transition will be at risk if projects lose their social licence, and if processes are seen as opaque and lacking robust community consultation and participation procedures. Reforms need to address this trust deficit and ensure genuine participation to support the transition to renewables. There are significant benefits of early and open engagement with communities about project siting, design, impacts and benefits. This can reduce land-use conflicts, delays and costs.
Alongside statutory requirements for early, iterative and comprehensive consultation on all decisions and policies made under the new Act (including regional planning), the government should ensure that a National Standard for community engagement is prioritised, and ready to be operational on the commencement of the new legislation. Consultation must be culturally appropriate and complement principles relating to ensuring the free, prior and informed consent (FPIC) of First Nations communities.
8. Transparent and accountable decision-making will ensure a social licence for renewable projects and infrastructure.
The reformed EPBC Act/new Nature Positive Act must ensure clear avenues for scrutiny and challenging of decisions. Assessment and decision-making in relation to all renewable energy transition projects must be transparent and comprehensive, with publicly available reasons for decisions and statutory consultation timeframes. Merits review rights should be available to provide for better scrutiny of decisions, and to ensure decision-maker accountability. Strong third-party enforcement rights similarly empower citizens to hold decision-makers and proponents to account, and these measures must be backed up by easily accessible and timely information on all projects, decisions, and conditions.
9. Governments must invest resources in early and iterative community engagement and robust environmental assessment processes to facilitate the energy transition.
We know that undertaking early and iterative community consultation on individual project proposals designs, regional plans, rezoning proposals etc takes time and effort. Collating and assessing information on a range of environmental impacts can also take time and resources. Given the urgency of the renewable energy transition imperative, governments must invest dedicated resources into this crucial work to do this properly.
Instead of fast-tracking or exempting projects from detailed assessment or consultation, resources – for example in terms of departmental assessment teams, data and information, community consultation outreach teams – need to be directed at these processes. Instead of removing accountability mechanisms, governments can invest in improving access to information by publishing fulsome and timely data, ensure iterative community consultation to identify and address conflicts early, and provide efficient review rights. For example, the independent review of the EPBC Act recommended a rapid merits review pathway, recognising third party review mechanisms, while rarely used, are an essential for decision-making accountability but can be improved to focus on merit and outcomes, and not just process. Clear, legally enforceable national standards – as proposed under the Nature Positive reforms – will also help provide certainty for industry and communities.
EDO recommends that fulsome community engagement and environmental assessment processes be established and well-resourced to facilitate the necessary energy transition. We would support redirection of fossil fuel subsidies to provide resourcing for this essential work.
The reforms underway to the EPBC Act, including those set out in the federal government’s Nature Positive Plan, provide an opportunity to engage with environmental concerns, community consultation processes, and First Nations cultural heritage protection in a different way than has been the historical experience under the current Act. We must ensure that trade-offs and carve-outs do not undermine this opportunity to make transformative laws that deliver outcomes for climate, nature and communities.