The Environment Protection and Biodiversity Conservation Act 1999 (Cth): Dark Sides of Virtue

Article excerpt

[The Environment Protection and Biodiversity Conservation Act 1999 (Cth) ('EPBC Act') has been much in the limelight of late. In 2006 it was relied on by the Commonwealth Environment Minister in order to refuse a Victorian wind farm development proposal because of potential threats to the endangered orange-bellied parrot. While this episode has been much publicised in the media, it has tended to overshadow the quiet evolution of practices of environmental impact assessment under the EPBC Act. These developments are critically examined in this article, revealing both their environmental virtues, as well as their potential 'dark sides'. We discuss the extension of the EPBC Act's environmental impact assessment processes to cover the indirect and (possibly.) cumulative impacts of development on valued environments like the Great Barrier Reef, and the wider ramifications this may have in improving the rigour of environmental decision-making processes in Australia. At the same time we note the many implementation difficulties that the EPBC Act has faced as a result of the vagaries of government administration and the limited resources available to environmental groups to scrutinise decision-making under the legislation. In some cases, these problems threaten to undermine the EPBC Act's effectiveness as an environmental protection tool Hence we argue that further development of environmental impact assessment practices under the EPBC Act will require more attention to be paid to the so far largely unheeded activities of actors in the private sector--development proponents, their financial backers and legal advisers. These actors are emerging as amongst the most significant participants in the day-to-day routine of environmental impact assessment decision-making. Harnessing the power of the private sector to advance public law goals may offer a way to avoid the problems of the EPBC Act k dark sides, while at the same time instilling a more environmentally 'virtuous' culture and practice in the mainstream of Australian environmental impact assessment.]

CONTENTS

I Introduction: Of Parrots and Politics
II Evolution and Scope of Environmental Impact Assessment under the EPBC
   Act
      A Development of the EPBC Act
      B The EPBC Act's Environmental Impact Assessment Triggers
      C The Model of Environmental Impact Assessment under the EPBC Act
      D Effect of Recent Amendments to the EPBC Act
III The EPBC Act in a Virtuous Light
      A Inclusion of Indirect Impacts
      B Inklings of an Extension to Cumulative Impacts
      C Ensuring Government Accountability
      D Influence on State-Based Environmental Impact Assessment
IV Dark Sides of the EPBC Act

      A Vagaries of Government Administration
      B Limitations on Community-Based Enforcement Action
      C Perils of Reliance on 'Activist' Judicial Interpretation
V Instilling a Culture and Practice of Virtue

Customer: takes the parrot out of the cage, holds it to his mouth and shouts: "ELLO POLLY!!! POLLLLLY!' He then thumps the parrot on the counter and says 'Polly Parrot, wake up!' and again thumps it on the counter and says 'Polly!' to its face, before throwing it up in the air and watching it plummet to the floor. 'Now that's what I call a dead parrot.'

Owner: 'No, no 'e's stunned!' (1)

I INTRODUCTION: OF PARROTS AND POLITICS

In mid-2006, furore over the fate of the orange-bellied parrot (and the chance that it might be more than stunned by the turbines of a proposed wind farm in Victoria) brought into the limelight the Commonwealth's environmental impact assessment legislation, the Environment Protection and Biodiversity Conservation Act 1999 (Cth) ('EPBC Act'). (2) In April 2006, the then Commonwealth Minister for the Environment, Senator Ian Campbell, found that threats to the endangered orange-bellied parrot posed by the Bald Hills wind farm project east of Melbourne, justified refusal of the proposal under the EPBC Act. …