Death by a Thousand Cuts: Incorporating Cumulative Effects in Australia's Environment Protection and Biodiversity Conservation Act
Dales, Jessica T., Pacific Rim Law & Policy Journal
Abstract: The Environment Protection and Biodiversity Conservation Act 1999 ("EPBCA" or "the Act") is the Australian government's keystone piece of environmental legislation. The EPBCA provides a legal framework to protect and manage nationally and internationally important flora, fauna, ecological communities, and heritage places - defined in the Act as matters of National Environmental Significance ("NES"). The Act comes into play when a proposed action has the potential to have a significant impact on a matter of national environmental significance. Although it has played a vital role in protecting Australia's environment, the EPBCA does not explicitly address the cumulative impact of multiple actions on matters of national environmental significance. Further, environmental litigation in the federal courts has failed to broaden the scope of the Act to incorporate cumulative impacts. Consequently, many individually insignificant impacts escape regulation under the EPBCA despite their cumulative contribution to negative pressure on the environment. This comment argues that because many of the most serious threats to matters of NES in Australia result from the cumulative impact of many activities, a holistic or landscape approach to the environmental assessment process is vital to appropriate environmental management. A shift to an assessment process that explicitly requires consideration of cumulative environmental impacts is a feasible, equitable, and cost-effective way to address this significant loophole in the EPBCA.
When Australia broke away from the supercontinent Gondwana over fifty million years ago it set the stage for a unique set of evolutionary forces to produce a land like no other.1 The resulting continent includes stunningly diverse ecosystems and millions of species found nowhere else in the world.2 Endowed with such an extraordinary natural environment, the Australian government attempts to balance conservation and the growing pressures of human activity through legislation.3
However, the Australian government's central environmental legislation, the Environment Protection and Biodiversity Conservation Act 1999 ("EPBCA"),4 is ill-equipped to achieve this balance. The legislation's overarching goal is to protect and manage nationally and internationally important flora, fauna, ecological communities, and heritage places, all defined in the EPBCA as matters of national environmental significance ("NES").5 The EPBCA falls short of this goal because the environmental assessment process is narrowly focused on the environmental impacts of individual projects.6 This failure ignores the broader environmental implications of any single proposed project. As a result, the environmental assessment process does not properly address environmental impacts at the more critical landscape and ecosystem scale.7
While individual effects may be insignificant on their own, impacts from one or more sources often result in the degradation of critical resources over time.8 Indeed, evidence indicates that the most damaging environmental effects may result not from the direct effects of a discrete action, "but from the combination of the individually minor effects of multiple actions over time."9 The successive, incremental, and combined impacts of multiple actions on the environment are known as cumulative impacts.10
The EPBCA is triggered when a proposed project might have a significant impact on a matter of NES.11 Under the current EPBCA, there is an unacceptable risk that individual projects will be considered safe for the environment, even though such projects may have very significant cumulative impacts. Cumulative impacts by definition cannot be addressed effectively in isolation.12 This is an important environmental consideration not addressed under the current statutory framework. Therefore, the EPBCA should include a clear mechanism for assessing the likely cumulative impacts of a proposed development project over time and in conjunction with other projects. …