Reviewing the Environmental Protection Authority

An independent review of the Environmental Protection Authority’s (EPA) policies and guidelines (Review) was recently released on 6 May 2016. The Review recommends a wide ranging overhaul of the EPA’s policy framework, with the need for simplification and clarification.

Following the highly publicised decision of Chief Justice Wayne Martin (Martin CJ) in Save Beeliar Wetlands (Inc) v Jacob [2015] WASC 482 (Roe 8 Case) the EPA commissioned a panel of experienced legal professionals (lead by Peter Quinlan SC) to review the content, development and application of the EPA’s policies and guidelines, in fulfilling its statutory responsibilities to undertake environmental impact assessments (EIA) under the Environmental Protection Act 1986 (WA) (EPAct).

In the Roe 8 Case the court held that in reviewing the EIA of the Roe 8 proposal, the EPA had failed to have regard to a policy of the EPA (enunciated in three official policy and guidance statements) as to whether or not environmental offsets will be appropriate where there are residual environmental impacts of a proposal. Martin CJ found that the EPA’s failure to take this mandatory policy into consideration rendered the EIA report invalid, and it followed that the Minister’s decision based on the EPA recommendations was also invalid.

The Roe 8 Case has been appealed by the EPA and the Minister for Environment, Hon Albert Jacob, and the appeal was heard by the Court of Appeal on 2 May 2016. The reserved decision on that appeal has not yet been published. The Review has been released on the basis that the outcome of the Roe 8 Case appeal will not affect its findings and recommendations.

EPA policy framework and reform

The Review found that on examination of the current suite of policy instruments maintained by the EPA that:

• There  are too many instruments;
• There is no clear hierarchy or logical numerical order to the instruments;
• Within the nominal framework that currently exists there are several “types” of instruments that have different purposes, objectives and outcomes; and
• Within the different types of instruments there are a range of different forms or “genres” of content.

The Review took the view that this structure is inadequate to providing the necessary guidance for users of these documents which adversely affects both the use and development of policy instruments generally.  This is because there is no central source that presents a clear outline of the EPA’s policy suite in a standard hierarchy, which links the policy instruments back to the EPA’s statutory functions and powers.  The Review noted earlier attempts to rationalise the policy instruments and create a framework, had failed because they had not dealt with the problem at the ‘roots’, but had tried to make changes incrementally by building upon the existing structures and instruments.

Based on the above findings the Review recommended the following:

• That radical reform is needed to provide a fixed and stable structure;
• This should consist of a simplified policy framework arranged in a hierarchical manner, with the objectives and principles of the EPAct at the apex;
• A supporting policy framework should be divided into three categories:

• A framework for the process and procedures of EIA’s;
• A framework for dealing with the substantive aspects of EIA’s; and
• Another for policies, advice and other documents not included in the EIA function;

• The policy framework should be a two tiered hierarchy;

• The first tier being administrative procedures on EIA’s; and
• The second tier being a procedures manual, which sets out relevant guidance in relation to the entire process set out in the administrative procedures;

• The policy framework should be “environmental factor focused” rather than “activity focused” when relating to substantive aspects of EIA’s;
• To ensure the reforms work there needs to be a  “policy on policies”;

• ie a policy manual to ensure that there is adequate guidance for a consistent approach as to how the EPA develops policy;

• The guide “policy manual” should consist of:

• The status of ‘draft’ material and whether such material should be publicly disclosed;
• Clear and identified timeframes for finalisation of such material;
• The requirements for and extent of consultation for each type of policy instrument; and
• A process for reviewing instruments that have been adopted and published.

The Review recognises that its recommendations are a guide for reform and they are intended to be a rigid or prescriptive formula. The Review emphasises that any reform process would require policies to be carefully planned and settled, before being populated within particular instruments.

The Review recognised the wider role that the EPA undertakes, beyond EIA processes, such as providing reports and advice to the public and industry generally in relation to environmental matters, but recommended that such material is better prepared outside of the context of the EPA’s EIA function.

Role of environmental offsets

The Review also considered the EPA’s role in considering environmental offsets and related policies.  It noted, that unlike mitigation actions occurring on-site as part of a project to reduce the project’s  impact, offsets are undertaken outside of the project area and counterbalance significant residual impacts.

While acknowledging that one view was that offset considerations have no part in the EPA’s EIA function, the Review concluded that offset considerations formed an essential part of good EIAs.  The Review acknowledged, however, that the offset considerations are at the margin between the role of the EPA (advice on environmental factors), and that of the Minister, who makes a decision, having regard to the EPA advice and recommendations but also social, economic and other public policy considerations.

The Review noted early identification and offset consideration in the EIA process was essential, and that it was inappropriate to defer offset identification until after the proposal had been assessed or approved.  It recommended that offsets should be specifically identified and addressed in the EPA report and recommendations on an EIA.

The EIA process since the Roe 8 Case

Following the Roe 8 Case, the EPA issued internal templates and spreadsheets as ‘checklists’ to ensure that EIA’s considered the EPA’s policies.  The Review observed that such checklists are likely to end up being a ‘tick the box’ exercise rather than ensuring meaningful engagement with policies and guidelines.

The Review also noted concerns over so-called “retrospective” policy change and the introduction of new policies while a proposal was being assessed in an EIA.  There were particular concerns submitted to the Review over the uncertainty and disruption of what would be required to be addressed during the course of the EIA process.  The Review commented that adoption of its recommended policy framework should largely address these concerns in the long-term.

Overall

The Review’s recommendations if followed through by the EPA will have significant potential to improve the EIA process, providing greater certainty and confidence, as well as simplifying and streamlining the process.  This will be of importance to stakeholders, the industry and the general public.

In conclusion, the Review’s findings and recommendations identified the need for wide scale structural reform of the EPA’s policies, and identified general principles that should be addressed in the EPA’s future approach to policy development and review.