Environment and Sustainable Development 5 Minute Fix 31: GHG, biomass, planning, PFAS

19 Oct 2022
Time to read: 5 minutes

Climate change

Commonwealth: First national climate change legislation in a decade passed

The Senate has passed the Climate Change Bill 2022 and Climate Change (Consequential Amendments) Bill 2022 and the Bills received assent on 13 September 2022. The purpose of the new Climate Change Act is to prescribe greenhouse gas emissions reductions targets to ensure a greater commitment to the global goal of keeping the increase in average temperature to below two degrees. Relevantly, the new Climate Change Act:

  • enshrines Australia’s greenhouse gas emissions reductions target of a 43% reduction from 2005 levels by 2030 and the net zero by 2050 goal;
  • requires the Minister for Climate Change to deliver an annual statement to Parliament on the progress towards achieving the targets and the effectiveness of policies; and
  • requires the Climate Change Authority to give the Minister advice on the annual statement;
  • provides periodic reviews of the legislation’s operation.

The Government has also proposed requiring emission intensive industries to reduce emissions to contribute to the new targets. A technical and design framework for setting baselines, the use of offsets and how treatment should be tailored to emissions intensive businesses is set out in the Safeguard Mechanism Reform Consultation Paper.

VIC: Victoria exceeds GHG emissions target in 2020

Under the Climate Change Act 2017, which legislates a net zero target for 2050 in line with the Paris Agreement to limit warming to well below 2°C, the Victorian Government must release annual emissions reports to ensure the target is on track.

The Victorian Greenhouse Gas Emissions Report 2020, which contains Victoria’s latest greenhouse gas emissions data for the 2020 reporting year, has now been released and provides that Victoria has exceeded the target for 2020. The target was to reach 15-20% below 2005 levels of emissions, however the 2020 Report states that Victoria instead reached a reduction of 29.8% below 2005 levels.

The 2020 Report credits the positive result to being largely due to the shift to renewable energy and reduction in the output of coal-fired electricity generators in the State.

VIC: EPA Victoria’s new guideline for minimising GHG emissions released

Last month EPA Victoria released its new Guideline for minimising greenhouse gas emissions – 2048, to assist businesses undertake reasonable actions pertinent to their individual situation, whether the business is small or whether it involves large and complex operations, to minimise the risks to the environment and human health from their greenhouse gas (GHG) emissions.

Relevantly, the Guideline outlines how to identify sources of emissions, assess the risk of harm, implement measures to reduce emissions and assess the effectiveness of those measures. Accordingly, it will be important for businesses to refer to the new Guideline when considering and implementing the most suitable actions and controls to minimise the risks from their GHG emissions in order to meet their responsibilities under the Environment Protection Act 2017 (Vic) and the general environmental duty (GED).


Commonwealth: Native biomass in RET: have your say

The eligibility of electricity generated from native forest biomass in the Renewable Energy Target (RET) is set to be amended to address stakeholder concerns about the eligibility of electricity generated from native forest biomass for support through the RET. The Commonwealth Government has released a consultation paper to seek public views on whether the eligibility for native forest wood waste should be removed or remain in place, whether the current arrangements are effective and potential options for regulatory amendments that could assist in achieving objectives and supporting public confidence in the scheme.

Submissions can be made until 21 October 2022 in the manner prescribed here (link no longer active).

QLD: New renewable energy targets as ambitious plan released

Queensland continues to cement its place as a leader in the renewable energy space with the release of the Government’s $62 billion Energy and Jobs Plan which sets out a number of actions, most notably:

  • two new renewable energy targets of 70% renewable energy supply by 2032 and 80% by 2035; and
  • all publicly-owned coal-fired power stations to be operating as clean energy hubs by 2035, supported by a legislated Job Security Guarantee for energy workers.

This Plan coincides with the recent announcement of a new dam at Pioneer Valley, near Mackay, which is set to become the biggest pumped hydro scheme in the world dam and provide half of Queensland’s energy supplies with renewable energy.

To legislate the new renewable energy targets, the renewable energy regulatory framework, Job Security Guarantee and a number of other key mechanisms to support the Plan, it is anticipated that the Renewable Transformation Bill will be prepared next year.

VIC: Increase to energy storage targets introduced for renewables

On 27 September, the Victorian Government announced that it will introduce increased energy storage targets which will apply to both short and long-duration energy storage systems, including batteries, hydroelectricity and hydrogen technologies.

The new target of 6.3 GW of storage by 2035 makes Victoria’s energy storage targets the biggest in Australia and is aimed at supporting the legislated renewable energy target of 50% by 2030, the goal to reduce emissions by 50% by 2030 and reach net zero by 2050.


WA: First of two mining amendment bills passed

The Mining Amendment Act 2022 (WA) was passed by Parliament in September. This Act will bring into law some significant changes to the Mining Act 1978 (WA) once these provisions are proclaimed by the Western Australian Parliament. In particular, the Act will introduce a new Part 4AA called “Conditions and approvals”, which will consolidate all activity approvals into one part and separate them from the processes for granting of tenements. Part 4AA will introduce:

  • a faster automated authorisation pathway for some mining activities (eligible activities and standard conditions will be defined in regulations);
  • a single approvals statement recording all approved mining operations and conditions of approval across multiple tenements; and
  • the "mining development and closure proposal", which replaces the existing mining proposal and mine closure plan documents.

These and other amendments are intended to modernise the regulatory framework and increase efficiency of applications and assessments for mining activities.

A further amending bill, the Mining Amendment Bill 2022 (WA), is still before Parliament. If passed, it will introduce a number of long-standing administrative changes, including making provision for a fee to be prescribed for objection applications, potentially providing a disincentive to frivolous tenement application objections.

The Part 4AA amendments are expected to commence in mid to late 2023, once the supporting regulations have been prepared. The WA Government has advised that consultation on those regulations should begin shortly, so keep an eye on future updates in this space.


NSW: Sustainability standards for buildings to commence 1 October 2023

As part of the NSW Government’s commitment to encourage sustainable development in NSW, it has introduced the new State Environmental Planning Policy (Sustainable Buildings) 2022 (Sustainable Buildings SEPP). The new Sustainable Buildings SEPP will commence on 1 October 2023 and contains sustainability standards for both residential and non-residential development in NSW as well as processes for measuring and assessing the embodied emissions of the construction materials used in a development.

The NSW Government has released the Sustainable Buildings SEPP Overview which outlines the policy package, which comprises:

  • the Sustainable Buildings SEPP;
  • changes to the Environmental Planning and Assessment Regulation 2000; and
  • changes to the Environmental Planning and Assessment (Development Certification and Fire Safety) Regulation 2021.

The aim of the sustainability standards contained in the Sustainable Buildings SEPP is to:

  • minimise energy and water needs;
  • reduce carbon emissions from energy use;
  • track embodied building emissions; and
  • render buildings more comfortable in summer and winter.
ACT: Reform of planning system proposed in new Bill

On 21 September 2022, the Minister for Planning and Land Management Mick Gentleman introduced the Planning Bill 2022 to the ACT Legislative Assembly. If passed, the legislation will repeal the Planning and Development Act 2007 (ACT), the Planning and Development Regulation 2008 (ACT) and any subordinate statutory instruments and replace them with an updated planning system.

The Bill’s Explanatory Statement explains that the planning system overhaul is neither a “light-touch” nor a “start from scratch” approach and the goal is a new system that is more “spatially-led” and “outcomes-focussed.” Key features of the proposed legislation (amongst other proposed changes) include:

  • recognition of the importance of biodiversity and landscape, high-quality and design-led built outcomes, knowledge, culture and tradition of the traditional custodians of the land;
  • planning for population growth while protecting the attractive aspects of the ACT;
  • introducing the principles of good consultation to provide guidance on how consultation should be undertaken in a consistent and transparent way and encourage early engagement;
  • replacing the existing ACT Planning and Land Authority as the Territory Planning Authority;
  • introducing a more district-scale approach to planning (in contrast to the current Territory and city-wide focus);
  • requiring the establishment of a Territory Plan to give effect to the strategic and spatial planning outcomes within the reformed system; and
  • introducing the concept of significant development.
WA: Significant planning reform initiatives on the agenda

The WA Government recently announced a number of significant planning reform initiatives. The proposals have a strong focus on centralising oversight at a State or regional level, to ensure better efficiency, consistency and transparency. If implemented, we will see centralised coordination of three aspects of the planning framework that have long been a concern for industry:

  • developer contributions (including the introduction of a dedicated unit in the Department to oversee DC plans);
  • the referral of development applications to other agencies for comment (including the introduction of a State Referral Coordination Unit); and
  • structure and precinct planning (including district/regional preparation and assessment of plans).


Commonwealth: New Biodiversity Certificate Scheme proposed

Prime Minister Anthony Albanese has committed to establishing a new biodiversity certificates scheme to be managed by the Clean Energy Regulator. It is proposed that any loss of biodiversity through development will need to be offset with certificates that would result in a greater biodiversity gain. The purpose of the scheme is to make it easier for businesses and individuals to invest in projects to enhance biodiversity and assist farmers, landscape restoration and management by implementing protocols which will allow companies to earn biodiversity certificates.

The intended outcome of the proposed biodiversity market is to:

  • deliver real benefits in habitat for native species;
  • provide benefits for landholders – including reduced erosion, topsoil protection, improved drought resilience and shelter for livestock; and
  • encourage environmental improvement on private land through the creation of greater economic opportunities.

The voluntary market will operate parallel with carbon marketing and will be underpinned by legislation. However, distinct from carbon credits only one biodiversity certificate would be issued for a project. For a project to earn certificates they would need to enhance or protect biodiversity.

This scheme will likely require the introduction of new legislation or amendments to existing legislation, so watch this space.

Commonwealth: Action plan proposes recovery pathway for threatened species

The Department of Climate Change, Energy, the Environment and Water has released the Threatened Species Action Plan 2022-2032 which provides a pathway to recover Australia’s threatened wildlife, spanning terrestrial, marine and freshwater environments. The Action Plan constitutes four 10-year objectives which will be met through consecutive 5-year targets and actions, including:

  • the risk of extinction is reduced for all priority species;
  • the condition is improved for all priority species;
  • new extinctions of plants and animals are prevented; and
  • at least 30% of Australia’s land mass is protected and conserved.

The Action Plan acknowledges that all threatened species and natural environments are important, focusing on a small number of priority species and places will help target the effort and dedicate resources appropriately to ensure targets are reached. The new Action Plan complements the Australian Government's current regulatory responsibilities under the Environment Protection and Biodiversity Conservation Act 1999 but does not introduce new obligations on governments, organisations or individuals.

Environmental protection

Commonwealth: Third draft PFAS National Environmental Management Plan released: have your say

The Commonwealth Department of Agriculture, Fisheries and Forestry has released a third draft version of the PFAS National Environmental Management Plan (PFAS NEMP 3.0) for consultation. The draft PFAS NEMP 3.0 has been developed by the National Chemicals Working Ground of the Heads of EPAs Australia and New Zealand and proposes to provide new and additional guidance and standards, specifically on areas including:

  • PFAS family – international approaches to grouping of PFAS;
  • Environmental data and monitoring – additional guidance on ambient monitoring data collection and site-specific monitoring programs;
  • Water – risk-based criteria and guidance for beneficial reuse of biosolid;\
  • Soil – guidance and standards regarding PFAS behaviour in soil, reviews two existing guideline values and proposes two new guidelines;
  • Resource recovery and waste – guidance on managing risks associated with PFAS in resource recovery products;
  • Site specific guidance – guidance on principles and approaches to remediate and manage PFAS and guidance on construction water, estuaries, costal and marine sediment.

A suite of supporting and explanatory materials was released alongside the draft PFAS NEMP 3.0 relating to biosolids, soil health investigation and PFOA indirect ecological guideline values.

Submissions on the draft PFAS NEMP 3.0 can be made until 4pm AEDT 20 December 2022 in the manner prescribed here.

Commonwealth: Phasing out PFAS in Fibre-Based Food Contact Packaging

The Australian Packaging Covenant Organisation (APCO) has published the Action Plan to Phase out PFAS in Fibre-Based Food Contact Packaging (Action Plan) which is aimed at phasing out PFAS in food packaging by the end of 2023.  The Action Plan is based on 2021’s APCO-led and Planet-Ark supported study and corroborates the 2018 National PFAS Position Statement where all Australian governments agreed to a target of 100% of packaging to be reusable, recyclable or compostable by 2025.

The purpose of the action plan is to ensure the presence of PFAS in packaging does not become a barrier to compostable food contact packaging and the overall recovery of food waste. It does this by providing a voluntary, industry-led approach to phase out PFAS in fibre-based food contact packaging in Australia and includes:

  • a guideline for testing for total organic fluorine which is indicative of PFAS levels;
  • outlines how to report on the PFAS present in fibre-based food contact packaging; and
  • considerations for selecting alternatives.
WA: Strategic review of environmental regulatory system: have your say

The Department of Water and Environment Regulation has released its discussion paper for a strategic review of WA’s environmental regulatory system under the Environmental Protection Act 1986 (WA) (EP Act). The consultation is part of the reform of the Environmental Protection Regulations 1987 (WA) (EP Regs), necessary as a result of the significant amendments to the EP Act passed in November 2020. Those amendments introduced a new environmental licensing system, replacing licences and works approvals with a single licence that is concerned with the regulation of prescribed activities rather than the existing concept of prescribed premises. Schedule 1 of the EP Regs defines the prescribed premises that require registration, works approval and/or licensing, and so the EP Act amendments cannot come into force until the EP Regs are amended. 

The discussion paper sets out the proposed reforms and timeframes for staged delivery. It encourages submissions not only on the scope of activities that should fall within the prescribed activity framework, requiring regulation because of their emissions and discharges, but also on how best to regulate them.

Submissions can be made until 5pm (WST) on Tuesday, 13 December 2022 in the manner prescribed here.

Special thanks to Sarah Ashley and Grace Scanlon (Brisbane), Sian Ainsworth (Melbourne), Jessica Lighton (Sydney) and Isabelle Macdonald and Sally Ascott (Perth) for their contribution to this edition.

Clayton Utz communications are intended to provide commentary and general information. They should not be relied upon as legal advice. Formal legal advice should be sought in particular transactions or on matters of interest arising from this communication. Persons listed may not be admitted in all States and Territories.