3.2 - Environmental impact assessment is a convoluted process based on poorly defined key terms
The EPBC Act uses overly prescriptive processes. This means the effort of the regulator and the proponent is often focussed on completing the process as quickly as possible rather than achieving the outcome intended.
This is most visible for environmental impact assessment (EIA), where the EPBC Act prescribes the:
- required, detailed steps for preparing content of relevant documents
- documents that must be provided
- way they must be considered by the decision-maker (see Box 10).
Box 10 - Complexity of EIA processes
Example 1: Part 9 decisions – approval of actions
The EPBC Act does not currently set out a clear standard for deciding whether to approve an action based on the acceptability or otherwise of the impacts (see Chapter 1).
The focus on process is at the expense of outcomes. The administrative overhead to manage the technicalities of prescriptive processes is significant and adds to delay and cost with no additional environmental benefit.
A decision-maker may approve an action if they follow the correct legal processes and have regard to all the relevant statutory considerations.
The statutory considerations a decision-maker is required to apply differ depending on which information and documents need to be considered. For example, a decision-maker may have to: ‘have regard to’, ‘take into account’, ‘consider’, ‘not act inconsistently with’, or ‘not contravene’, the relevant information or statutory document.
- This complexity must be reflected in the recommendation report and decision brief to meet all the requirements of the EPBC Act. Approval decisions have been overturned on technical grounds then remade with no change to the environmental outcomes.
- This has practical consequences. Where there is community concern arising from a decision, that decision is contested on technical grounds about the process rather than the environmental outcome (see Chapter 5).
Example 2: Poorly defined terms
Key terms in the EPBC Act lack clarity, which leads to confusion about obligations and inconsistent interpretation.
Terminology such as ‘significant’ (impact), ‘action’ or ‘continuing use’ means people, including departmental staff, aren’t sure how the EPBC Act should apply.
Poorly defined terminology also leads to uncertainty about how to undertake self-assessment to determine if a referral is needed. This drives unnecessary referrals as proponents seek to manage risk by requesting a referral decision even if they don’t think their action would trigger the EPBC Act.
The Department has been inconsistent in its application and guidance about requirements under the EPBC Act, which has added to confusion and uncertainty. For example, whether to refer or not to refer, or whether something is a controlled action.
Example 3: There is uncertainty about the concept of ‘controlled actions’ and the ‘controlling provisions’ in Part 3
The concept of ‘controlled actions’ and ‘controlling provisions’ is central to the referral and subsequent assessment and approval of an action but is unclear.
Before an assessment is carried out there is often insufficient information on matters of national environmental significance (MNES). At the referral stage, it is difficult for an assessment officer to identify all species by level of endangerment in order to identify with certainty which controlling provisions apply. If a controlling provision is not specified at the referral stage but is identified as relevant during the course of the assessment, the EPBC Act requires a reconsideration of the initial controlled action decision and the assessment process would need to begin again.
Example 4: There are legal uncertainties relating to condition-making powers
Usually, EIA approval decisions have conditions applied to them. There are uncertainties about how conditions are to be applied and what happens to them over time. For example, consent of an approval holder is required to apply conditions that are not ‘reasonably related to an action’, but it is unclear what this means.
Conditions relating to management plans are usually set early in the life of a project before impacts are fully understood making implementation and enforcement difficult. Changes in circumstances are also not well accommodated, meaning some conditions can cease to be appropriate or relevant but remain in force unless actively removed.
Example 5: There are inconsistent interactions between EIA and other parts of the EPBC Act
The EPBC Act seeks to simplify the operation of Part 10 (strategic assessments) by applying the Part 9 approval and post-approval processes to a strategic assessment approval. If a strategic assessment approval is in force, the Act applies several of the provisions of Part 9 to that approval (section 146D). This leads to potential legal inconsistencies as a Part 10 approval is quite different in practice to a Part 9 approval.