The Environment Protection and Biodiversity Conservation Act 1999 (Cth): Dark Sides of Virtue

Abstract

The Environment Protection and Biodiversity Conservation Act 1999 (Cth) ('EPBC Act') has been much in the limelight of late. In 2006 it was relied on by the Commonwealth Environment Minister in order to refuse a Victorian wind farm development proposal because of potential threats to the endangered orange-bellied parrot. While this episode has been much publicised in the media, it has tended to overshadow the quiet evolution of practices of environmental impact assessment under the EPBC Act. These developments are critically examined in this article, revealing both their environmental virtues, as well as their potential 'dark sides'. We discuss the extension of the EPBC Act's environmental impact assessment processes to cover the indirect and (possibly) cumulative impacts of development on valued environments like the Great Barrier Reef, and the wider ramifications this may have in improving the rigour of environmental decision-making processes in Australia. At the same time we note the many implementation difficulties that the EPBC Act has faced as a result of the vagaries of government administration and the limited resources available to environmental groups to scrutinise decision-making under the legislation. In some cases, these problems threaten to undermine the EPBC Act's effectiveness as an environmental protection tool. Hence we argue that further development of environmental impact assessment practices under the EPBC Act will require more attention to be paid to the so far largely unheeded activities of actors in the private sector - development proponents, their financial backers and legal advisers. These actors are emerging as amongst the most significant participants in the day-to-day routine of environmental impact assessment decision-making. Harnessing the power of the private sector to advance public law goals may offer a way to avoid the problems of the EPBC Act's dark sides, while at the same time instilling a more environmentally 'virtuous' culture and practice in the mainstream of Australian environmental impact assessment.

Keywords: environment, protection, biodiversity, conservation, environmnental impact assessment

JEL Classification: K23