By Solicitor Ruby Hamilton
In late October 2023, the Western Australian Government commissioned Dr Paul Vogel and Mr David McFerran to undertake a “short, sharp review” of environmental approvals processes and procedures in WA. The Government’s response to the recommendations of the Review was published on 12 December 2023. The substantive report of the review has not been made available to the public.
A list of recommendations and the government’s response (whether the recommendation is accepted or noted) is available at:
Independent Review of WA Environmental Approvals Processes and Procedures
We understand that there was very limited consultation undertaken in the review. Given the role of environmental assessments and approvals in relation to the protection of the environment, as a public asset for all Western Australians, EDO considers that public participation is a democratic necessity; and input from technical experts (including environmental organisations) is necessary to ensure a highest-quality review.
SUMMARY OF REVIEW RECOMMENDATIONS
From the limited available information about the review and recommendations, and the Government’s proposed implementation, we make the following four key observations.
- Most recommendations prioritise speed over environmental protection
The review was primarily directed to facilitating quicker and less onerous assessment processes. This raises some tensions given the overarching purpose and objectives of the Environmental Protection Act 1986 (WA) (EP Act) and the Environmental Protection Authority (EPA) are fundamentally to protect the environment of WA. For example, Recommendation 6 would see the EPA focus on “facilitating sustainable development”, whereas its statutory purpose is to protect the WA environment and prevent, control, abate and mitigate pollution and environmental harm.
Most recommendations are tailored to speed up decision-making, which is more convenient for industry; rather than facilitating better decision-making or protection of the environment, for all Western Australians. For example, Recommendation 18(a) foreshadows limiting the EPA’s ability to request information from proponents when needed for an assessment.
- Any legal changes should be properly scrutinised
Most recommendations could be implemented without changes to the law. Some recommendations reflect existing options available under the current EP Act: for example, Recommendation 27(a) refers to the minister’s ability to require the EPA to assess a particular proposal in a specified period. However, several recommendations would require changes to the law.
Any recommendations which are proposed to be implemented through changes to the EP Act should be subject to proper scrutiny, including consultation of the WA community and experts, before these are progressed.
- Positive recommendations to increase resourcing and coordination should be implemented
Some of the recommendations are centred on increasing the EPA’s resources to enable it to undertake assessments and make decisions in a timely and effective way. Several of these recommendations would see benefits for all stakeholders without the need for legislative change, include:
- Recommendations 1-4 and 6, 8 and 9, which focus on recruiting and developing DWER/EPA staff and culture;
- Recommendations 19 and 23, which focus on increased resourcing;
- Recommendations 7, 14, 23, 29 and 34, which focus on improving coordination in government; and
- Recommendations 20-22, 26, 28 and 39, which focus on the expertise and data available in environmental impact assessment.
These recommendations should be implemented where they do not compromise protection of the environment, in accordance with the objectives of the EP Act and the EPA.
- Certain recommendations should be reconsidered
Three recommendations in particular (Recommendations 32, 36(c) and 38) raise serious concerns.
Recommendation 36(c)
This recommendation proposes removing all public appeal rights against EPA assessment reports, and moving public appeal rights against conditions on licences from the Minister to the State Administrative Tribunal (SAT). Currently, any person (including any member of the public) can lodge an appeal against an EPA assessment report or conditions on a licence. Appeals are usually heard by the Office of the Appeals Convenor, and determined by the Minister for the Environment.
These appeals provide an opportunity for the public to participate in, and improve, environmental assessment and decision-making. For example, the EPA often strengthens its recommended conditions in response to appeals. No other reviews of the EP Act (of which there have been many over the years, subject to comprehensive stakeholder input – see examples here, here and here) have suggested removing appeal rights.
The appeal process is not a drain on DWER or EPA time and resources – it is conducted by the independent Office of the Appeals Convenor and remains within the inister’s remit. A previous review confirmed that removing appeal rights would not have practical effects in reducing assessment times (see here, note Finding 20).
Legal changes to remove public appeal rights are unnecessary and counter-productive, and any concerns with appeal processes can be handled through simpler and less radical measures. For example, the Appeals Convenor has an existing statutory power to draw up administrative procedures for handling appeals. We would encourage the exercise of this power, after appropriate consultation with stakeholders.
In the alternative, the SAT may be an appropriate body to hear appeals under the EP Act, as it is a well-established independent tribunal with appropriate expertise to handle merits appeals. However, any move to have appeals heard by the SAT instead of the Office of the Appeals Convenor must not be at the expense of public appeal rights. It must come with carefully considered appeal processes that do not replicate problems with existing SAT appeal processes, or create other new burdens or barriers for appellants.
Recommendation 32
This recommendation appears to suggest the EPA should defer to other agencies in relation to the greenhouse gas emissions and social surroundings environmental factors. The greenhouse gas emissions environmental factor covers the EPA’s assessment of climate impacts, and the social surroundings factor includes the EPA’s assessment of impacts on cultural heritage and values.
Limiting the EPA’s remit to assess and make recommendations on these important environmental factors will hamper informed decision-making by the Minister, and proper regulation of greenhouse gas pollution. The EPA, with appropriate resourcing and technical expertise, should retain its full functions in respect of social surroundings and greenhouse gas emissions.
Recommendation 38
This recommendation directs the EPA to defer to the Commonwealth Safeguard Mechanism, rather than undertaking its own assessment and recommendations pursuant to the objectives in the EP Act.
The Commonwealth Safeguard Mechanism is intended to ensure the Commonwealth’s emissions reduction targets are met. It is not directed to the protection of the WA environment, which is the purpose of the EP Act and the objective of the EPA. Further, the WA government has implemented its own climate change and greenhouse gas emissions policies, including the Climate Change Bill 2023 (WA), and should retain its regulatory powers to deliver on its policies.
Any concerns as to duplication can be addressed through simple and common-sense regulatory practices, such as accepting reporting under the Safeguard Mechanism to fulfil reporting requirements for greenhouse gas conditions on WA approvals, or incorporating the Safeguard Mechanism requirements into WA environmental assessments and assessment guidance documentation.
