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Environment Protection and Biodiversity Conservation Amendment (Climate Trigger) Bill 2022 [No. 2]

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2022

 

 

 

 

THE PARLIAMENT OF THE COMMONWEALTH OF AUSTRALIA

 

 

 

 

SENATE

 

 

 

 

 

Environment Protection and Biodiversity Conservation Amendment (Climate Trigger) Bill 2022

 

 

 

EXPLANATORY MEMORANDUM

 

 

 

 

(Circulated by authority of Senator Hanson-Young)

 

 

 

 

 

 



 

 

ENVIRONMENT PROTECTION AND BIODIVERSITY CONSERVATION AMENDMENT (CLIMATE TRIGGER) BILL 2022

 

Outline

 

The Environment Protection and Biodiversity Conservation Amendment (Climate Trigger) Bill 2022 seeks to amend the Environment Protection and Biodiversity Conservation Act 1999 (EPBC Act) to introduce a climate trigger to contribute to Australia fulfilling its obligations under the Climate Change Conventions through thorough environmental assessment of emissions-intensive activities.

 

There are nine matters of national environmental significance under the EPBC Act, including, but not limited to, world heritage properties, national heritages places, Commonwealth marine areas and water resources in relation to coal seam gas development and large coal mining development. There is a clear policy gap in that emissions-intensive activities are currently not considered a matter of national environmental significance under the EPBC Act. This Bill seeks to address this deficiency.

 

The Bill will establish a new class of a controlled action under the EPBC Act relating to emissions of greenhouse gases.

 

A new trigger for emissions of greenhouse gases will be established, with two thresholds:

 

o     Significant Impact on Emissions: For actions that would emit between 25,000 to 100,000 tonnes of carbon dioxide equivalent scope 1 emissions in any one year, including in pre-construction stage, the Minister must consider the project through Part 9 of the Act, as the Minister currently does with matters of national environmental significance;

 

In deciding whether to approve the proposal, the Minister must consider whether the project will be consistent with the national carbon budget (see below) and achievement of emissions reduction targets

 

o     Prohibited Impact on Emissions: For projects that would emit above 100,000 tonnes of carbon dioxide equivalent scope 1 emissions, these projects would be treated similarly to nuclear projects under the Act, where the Minister is forced to reject the project’s approval.

 

The Bill will also require the Climate Change Authority to develop a national carbon budget to 2050 and to assess the remaining budget annually. The Minister must assess projects against the national carbon budget taking these assessments of the remaining budget into account.



The Bill also requires these national carbon budget and emissions reduction target considerations to be taken into account by the Minister when considering, under the strategic assessment provisions in Part 10 of the EPBC Act, whether to allow actions involving a significant impact on emissions to be taken in accordance with an endorsed policy, plan or program rather than being assessed under Part 9.

 

In addition, the Bill requires these considerations to be taken into account by the Minister when deciding whether to enter into a conservation agreement, and also allows for these considerations to inform the development of bioregional plans. This is designed to provide for the impacts of greenhouse gas emissions to be factored into planning considerations more broadly.



Finally, the Minister will be expressly prohibited from using alternative approval processes (bilateral agreements, bioregional plans, conservation agreements) for actions involving a significant impact on emissions. Subject to limited exceptions, all actions that have, will have or are likely to have a significant impact on emissions must be assessed under Part 9, or in accordance with an endorsed policy, plan or program under Part 10.

 

 

NOTES ON CLAUSES

 

Clause 1 - Short Title

 

1.       This is a formal provision specifying the short title.

 

Clause 2 - Commencement

 

2.       The Bill's provisions are to commence the day after the Act receives Royal Assent

 

Clause 3 - Schedules

 

3.       This clause provides that an Act that is specified in a Schedule is amended or repealed as set out in that Schedule, and any other item in a Schedule operates according to its terms.

 



 

Schedule 1 - Amendments to the Environment Protection and Biodiversity Conservation Act 1999

 

Item 1

4.       Item 1 inserts a new Subdivision FC into Division 1 of Part 3 of the EPBC Act, for the protection of the environment from actions with a significant impact on emissions. Section 24F makes the nexus with the external affairs power clear, while section 24G sets the penalties for non-compliance in line with the rest of the Act.

 

5.       Clause 24G prohibits an action that has, will have or is likely to have a significant impact on emissions unless it is approved under Part 9 or otherwise authorised under the Act, and sets the penalties for non-compliance in line with the rest of the Act.

 

6.       Section 24H establishes the first threshold climate trigger where the total amount of greenhouse gas emissions created at any stage of the project would result in emissions of 25,000 tonnes of carbon dioxide equivalent or more in a 12 month period.

 

7.       Section 24J replicates offence provisions for significant emissions which aligns with other classes of breached controlled actions in the Act.

 

8.       A person who wishes to rely on subsection 24G(2) in proceedings for a contravention of a civil penalty provision, or subsection 24J(4) in proceedings for an offence, bears an evidential burden in relation to the matters in that subsection. That is, the person must raise evidence, for example, that they have approval for the action, or that the Minister has made a decision that the action does not need approval provided it is taken in a particular manner. Given that the relevant decisions and notices under subsections 24G(2) and 24J(4) are readily available, this does not place an undue burden on that person.

 

Items 2 to 3

9.       These items make consequential changes to insert the above provisions throughout the body of the Act.

 

Item 4

10.     This item ensures that a person cannot be exempted from the approval requirements under Part 9 for actions that will have or are likely to have a significant impact on emissions because the action is declared not to require approval under a bilateral agreement. This is consistent with the approach taken for coal seam gas and large mining developments that will have or are likely to have a significant impact on a water resource.

 

Item 5

11.     The item prevents the Minister from making a declaration under subsection 33(1) that an action that will have or is likely to have a significant impact on emissions will be subject to an accredited management arrangement or accredited authorisation process.

 

Item 6

12.   This item confirms that ‘the environment’ is the matter protected by section 24G and section 24 J

 

Items 7 and 8

13.   These items prevent the Minister from making a declaration that approval under Part 9 is not needed for the purposes of section 24G or 24J on the basis that the relevant action is taken in accordance with a bioregional plan.

 

Item 9

14.   This item confirms that a conservation agreement cannot declare that an action that has, will have or is likely to have a significant impact on emissions does not need approval under Part 9. 

 

Items 10 and 11

15.   These items clarify that exemptions from approval requirements for forestry operations or actions taken in the Great Barrier Reef Marine Park do not apply to projects that have, will have or are likely to have a significant impact on emissions.

 

Item 12

16.   This item prohibits a bilateral agreement from declaring that an action that has, will have or is likely to have a significant impact on emissions does not require approval under Part 9.  This is consistent with the approach taken for coal seam gas and large mining developments that have had, will have or are likely to have a significant impact on a water resource.

 

Items 13 and 14

17.   Clause 141 and 146N requires the Minister to additionally assess any project that will or is likely to emit above 25,000 tonnes a year against the national carbon budget as laid out in Item 21 by the Climate Change Authority. A national carbon budget is the total amount of greenhouse gases Australia can emit until the year 2050. It will be updated annually to show the decline in the carbon budget remaining each year.  



18.   In determining whether to approve a project, whether under Part 9 or by way of strategic assessment, the Minister must consider the impact of the proposed project on the carbon budget and whether the project proceeding would be consistent with achieving climate targets.

 

19.   Sections 141A and 146P prevents the Minister from approving any new project that has, will have or is likely to have emissions with a carbon dioxide equivalence of over 100,000 tonnes in any 12 month period. This includes preventing the Minister from approving the action under Part 9 or by way of strategic assessment.

 

Item 15

20.   This item requires the Minister to advise a Commonwealth agency or employee who is considering giving certain authorisations, where an action will have or is likely to be prohibited above the 100,000 tonne annual threshold, that if a person takes the action they may commit an offence or be subject to a civil penalty, and the agency or employee should not give the approval.

 

Item 16

21.   Item 16 allows bioregional plans developed by the Minister to include priorities and strategies to ensure activities carried out under the plan are consistent with the national carbon budget laid down by the Climate Change Authority and Australia’s nationally determined contributions, mechanisms for monitoring the climate impact on biodiversity and other values.  This will allow consideration of the climate impacts of actions that fall below the climate trigger threshold.

 

Items 17 to 20

22.   Item 17 requires that before the Minister approves a conservation agreement under section 306, they are required to consider the national carbon budget and the greenhouse gas emissions reduction targets included in Australia’s nationally determined contribution.

 

23.   Items 18 makes consequential amendments to ensure that the climate trigger thresholds cannot be circumvented through a conservation agreement approval.

 

24.   Item 19 imposes criminal liability of executive officers of bodies corporate as per section 495 of the EPBC Act and item 20 concerns criminal liability of landholders as per section 496C.

 

Item 21

25.   This item requires the Climate Change Authority to create a total carbon budget that Australia can emit out to 2050 with reference to Australia’s obligations under the Climate Change Conventions and the temperature goals laid down in the Paris Agreement. This also has to be done with reference to the principles set down in the Climate Change Authority Act 2011 .

 

26.   A national carbon budget is the total amount of greenhouse gases Australia can emit until the year 2050. It will be updated annually to show the decline in the carbon budget remaining each year.

 

27.   The Climate Change Authority must perform an annual assessment of the remaining national carbon budget and give this assessment to the Minister. The assessment must be published on the Climate Change Authority’s website and be tabled by the Minister in each House of the Parliament.

 

Item 22

28.   Section 527F makes it clear that emissions are counted for any action related to a project, including land clearing or pre-construction works as well as any activities ancillary to an action. The section also provides for the Minister to determine methods by which emissions are to be measured for the purposes of the EPBC Act.

 

29.   Section 527G sets out that emissions of greenhouse gases above 100,000 tonnes in any 12 month period are a prohibited impact on emissions . Actions that have, will have or are likely to have this level of emissions cannot be approved by the Minister (see items 13 and 14).

 

Items 23

30.   Item 23 inserts definitions into the EPBC Act for terms used in the provisions inserted by this Bill.

 

Item 24

31.   Item 24 makes it clear that only actions made after commencement of the Schedule will be subject to the climate trigger as implemented by this Bill.

 

 

 

 

 

 

 

 

 

 

 

 

 

 

 

 

 

 

 

Statement of Compatibility with Human Rights

Prepared in accordance with Part 3 of the Human Rights (Parliamentary Scrutiny) Act 2011

 

Environment Protection and Biodiversity Conservation Amendment

(Climate Trigger) Bill 2020

 

 

This Bill is compatible with the human rights and freedoms recognised or declared in the international instruments listed in section 3 of the Human Rights (Parliamentary Scrutiny) Act 2011 .

 

Overview of the Bill

There are nine matters of national environmental significance under EPBC Act, including, but not limited to, world heritage properties, national heritages places, Commonwealth marine areas and water resources in relation to coal seam gas development and large coal mining development. There is a clear policy gap in that emissions-producing activities are currently not considered a matter of national environmental significance under the EPBC Act. This Bill seeks to address this deficiency.

 

Human rights implications

This Bill does not engage any of the applicable rights or freedoms.

 

Conclusion

This Bill is compatible with human rights as it does not raise any human rights issues.