EPBC Act: Does the Government have its finger on a climate trigger?

In 1999, the Howard Government passed into law the Environment Protection and Biodiversity Conservation Act (EPBC Act) to “protect and manage national and international important plants, animals, habitats and places in Australia.”[i] The Act requires an independent review of operation every 10 years, and in its most recent 2020 review, led by Professor Graeme Samuel AC, major changes were recommended, one of which being that development proposals should be required to transparently disclose the full emissions of the project.[ii] However, the review did not specify how this should be treated in the approval process.

One proposed way for the EPBC Act to protect the environment from high-emitting projects is through a climate trigger. This was most recently proposed by the Greens in 2022. So, what is a climate trigger and how could it work?

What is a Climate Trigger?

The EPBC Act requires the Federal Government to assess and approve new projects that have impacts on “matters of national environmental significance (‘MNES’)”. The nine matters to be considered are:

• World heritage properties
• National heritage places
• Wetlands of international importance
• Nationally threatened species and ecological communities
• Migratory species
• Commonwealth marine areas
• The Great Barrier Reef Marine Park
• Nuclear actions (including uranium mining)
• A water resource, in relation to coal seam gas development and large coal mining development.

If a new project is likely to have a significant impact on any of the above matters, it is sent to the Environment Minister to evaluate and determine whether it can progress. This is known as a “trigger”. Climate change is not listed as a MNES, meaning projects with a large carbon footprint but do not breach any of the nine “matters of national environmental significance”, will not be referred.  

If climate change was added to the list of MNES, high-emitting projects be referred to the Federal Environment Minister for assessment.

History of the Climate Trigger

In 2000, when the Bill was being debated, the then Environment Minister Robert Hill proposed including a greenhouse gas trigger, however this was later dropped.

In 2005, then Shadow Environment Minister Anthony Albanese introduced the Avoiding Dangerous Climate Change Bill, which sought to “include climate change as a matter of national environment significance, ensuring new major projects which would lead to emission of more than 500,000 tonnes of CO2 of CO2 equivalent a per year would be assessed for their climate change impact as part of the assessment process.”[iii] This bill did not proceed.

In 2020, the Greens introduced into the Senate an amendment to the EPBC Act which would have seen a climate trigger added. After having the reporting date extended seven times over two years, it lapsed before the 2022 election.

The Green’s reintroduced their climate trigger amendment following the 2022 Federal Election, with the Labor-led Senate Committee recommending Parliament to vote down the bill.

Interestingly, Professor Samuel’s independent review of the EPBC Act did consider the merits of a climate trigger. That review ultimately recommended against its inclusion because: “Successive Australian Governments have elected to adopt specific policy mechanisms to implement their commitments to reduce emissions. The Review agrees that these specific mechanisms, not the EPBC Act, are the appropriate way to place limits on greenhouse gas emissions”.

Why has the debate resurfaced?

In April, the Environment Minister Tanya Plibersek announced the progression of Stage 2 legislation to establish Environment Protection Australia, an independent national environment protection agency. This agency is one of the commitments included in the Government’s Nature Positive reforms. Passing the full package of reforms will require support from other Parliament members, most likely the Australian Greens, which want to see a climate trigger included as a condition of their support.

To date, the Federal Government has not shown too much interest in this idea. However, following the announcement of establishment of Environment Protection Australia (EPA), the Government opened consultation on Stage Three of the Nature Positive reforms, with a focus on “feedback received on climate-related reforms, including the interaction between environment and climate laws.” This line in the media release has led some to believe the Government is now considering adding a climate trigger into the EPBC Act.

This debate was fueled further when Greens MP Stephen Bate asked the Prime Minister during question time whether he could guarantee that a climate trigger would not be included in the Government’s Nature Positive reform plan, to which Anthony Albanese responded: “No”[iv], putting him at odds with the environment minister who said the government was not considering it. The Business Council of Australia responded to the Prime Minister’s comment, saying they are concerned the government is about to drop its “iron-clad agreement” to not include a climate trigger in the reforms.[v]

What are both sides saying?

The arguments for adding a climate trigger to the EPBC Act are straight-forward – climate change is the most significant environmental issue in society and a trigger will help ensure business projects align with Australia’s emissions reduction commitments under the Paris Agreement. Further, it can improve the effectiveness of avoidance or mitigation measures the project is proposing relating to impacts on national protection matters under a range of specified climate change scenarios.[vi]

Currently, fossil fuel projects are almost 50 per cent less likely to be referred to the EPBC compared with renewable projects, with 109 renewable projects being referred in the past two years as opposed to 72 for mining. This is because the high carbon emissions output of fossil fuel projects does not directly breach any of the MNES.  

In a submission to the Senate Committee on the Greens Climate Trigger Amendment, the Australia Institute said a climate trigger could “play the crucial and necessary role of stopping any new high-polluting facilities,”[vii] while the Trust for Nature argued it would ensure the “impacts of climate change on biodiversity are capable to being a triggering process … in accordance with international climate goals and national commitments.”

Conversely, there are some reasons why a climate trigger may not be the best response to limiting emissions. Referral to the EPBC Act is a significant time sink for new projects, with the Independent Review finding the average assessment and approval time to be near 1,000 days (see figure below). Aside from the economic impacts of project delay, some of these resource projects are needed to source the minerals for Australia to reach net-zero.  

For example, the Department of Industry, Science and Resources wrote in their submission that this could “discourage further investment [in critical minerals] … at a time when more investment is needed to guarantee the raw materials needed to achieve the goals of the Paris Agreement”.

Figure 1: Average number of days taken for assessment and approval of resource projects under EPBC Act

Source: EPBC Act Independent Review, p85.

But above that, a climate trigger could have perverse impacts on the rollout of renewable generation. As previously mentioned, 181 projects have been referred to the EPBC, consequently delaying the development of these projects. If a climate trigger is introduced, this number will increase, with the greater administrative burden likely to extend the assessment and approval timelines for all referred projects, renewable or otherwise.

Even if a climate trigger were to consider the positive displacement emissions value of renewable projects, this might only prolong assessment because that value would need to be independently determined, assured, and then weighed against the impacts to MNES.

[i] Environment Protection and Biodiversity Conservation Act 1999 (EPBC Act) - DCCEEW

[ii] Recommendations | Independent review of the EPBC Act (environment.gov.au)

[iii] Avoiding Dangerous Climate Change (Climate Change Trigger) Bill 2005 – Parliament of Australia (aph.gov.au)

[iv] Anthony Albanese has told the Greens he did not guarantee business leaders that the Labor government would not include a climate trigger in its environmental shake-up of EPBC laws | The Australian

[v]https://www.bca.com.au/climate_trigger_will_make_it_harder_for_renewable_approvals_in_nature_positive_reform

[vi] https://epbcactreview.environment.gov.au/resources/final-report/chapter-1-national-level-protection-and-conservation-environment-and-iconic-places/14-recommended-reforms

[vii] Submissions – Parliament of Australia (aph.gov.au)