Death by a Thousand Cuts: Incorporating Cumulative Effects in Australia's Environment Protection and Biodiversity Conservation Act
Dales, Jessica T., Washington International Law Journal
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. Further, where there is evidence that a project will have a significant cumulative impact on a matter of NES, there should be reasonable grounds to reject the project upfront. Under the current scheme, administrators cannot take action on a project with only cumulative effects until significant damage actually occurs. This risk exists because the EBPCA's assessment process does not clearly call for assessment of cumulative impacts.
As a result, the federal judiciary demonstrates confusion regarding the appropriate scope of environmental assessments under the EPBCA.13 The courts have not consistently defined what constitutes a "significant impact" for the purposes of triggering the Act and have failed to extend the definition to encompass cumulative impacts.14 Given the limits of judicial review under the EBPCA,15 it is unlikely that the courts will ever expand the scope of the EPBCA to include those activities that are likely to have a significant cumulative impact.16 Thus, the need for legislative action is even more critical.
This comment argues that the Act should be amended to shift the EPBCA's existing focus on traditional project-by-project based environmental assessment to an assessment process that explicitly requires consideration of cumulative environmental impacts. Strategic Environmental Assessments ("SEA"), as opposed to project level environmental assessments, internalize landscape and ecosystem level impacts into the assessment process. …