31 Mar 2022

Environment and Planning 5 Minute Fix 24: climate change, waste, energy and environmental protection

By THE ENVIRONMENT AND PLANNING TEAM

The Environment and Planning 5 Minute Fix gives you a snapshot of what you need to know across a range of environment and planning issues across the country. This edition focuses on the latest in climate change, waste, energy and environmental protection.

Climate change

International: Sixth Assessment Report from IPCC Working Group II published

The Working Group II of the Intergovernmental Panel on Climate Change (IPCC)  released its contribution Climate Change 2022: Impacts, Adaptation and Vulnerability to the Sixth Assessment Report of the IPCC on 28 February 2022.  The contribution of Working Group I focused on the physical scientific basis for climate change.  In contrast, the contribution of Working Group II focused on the impacts of climate change in the context of ecosystems, biodiversity and human communities at global and regional levels. Specifically, the four core concepts considered by the Working Group II include:

  • Risk: The potential for adverse consequences for human or ecological systems as a result of climate-related hazards.
  • Vulnerability: The sensitivity or susceptibility to climate-related harm and lack of capacity to cope and adapt.
  • Adaptation: The process of adjustment to actual or expected climate change and its effects.
  • Resilience: The capacity of social, economic and environmental systems to cope with and respond to hazardous events, whilst maintaining their essential function and capacity for adaptation, learning and transformation.

The Working Group III will release its contribution, focussing on climate change mitigation, assessing methods for reducing greenhouse gas emissions, and removing greenhouse gases from the atmosphere. in early April 2022, followed by the Synthesis Report combing the Groups contributions, which is scheduled to be released in September 2022.

Waste

International: UN Environment Assembly resolutions aimed at pollution and nature protection

On 2 March 2022, the 5th UN Environment Assembly concluded in Nairobi. The UN Environment program has reported that the assembly concluded with 14 resolutions to strengthen actions for nature to achieve the Sustainable Development Goals. Of particular note, the resolutions include agreement on the establishment of an Intergovernmental Negotiating Committee tasked with developing an international legally binding agreement to end plastic pollution, an Enhancing Circular Economy as a contribution to achieving sustainable consumption and production, establishing a panel to address the management of chemicals and waste and preventing pollution, and the environmental dimension of a sustainable, resilient and inclusive post COVID-19 recovery.

TAS: Progressing towards a circular economy in Tasmania

The Tasmanian Parliament has passed the following two key pieces of legislation to transition to a circular economy in line with other jurisdictions around Australia:

  • the Waste and Resource Recovery Act 2022 which establishes a state-wide waste levy that will encourage the diversion of materials from landfill, and drive investment into alternatives to landfill, so more materials will be recovered from the waste streams and turned into new and valuable products. This Act commenced on assent with Part 3 (Waste Levy) and Part 4 (Obligations and Offences) to commence on a day or days to be proclaimed; and
  • the Container Refund Scheme Act 2022 which will reduce litter in Tasmania by rewarding Tasmanians for directing their used drink containers into recycling. This Act will commence on a day or days to be proclaimed.

SA: Waste avoidance legislation now fully in effect

On 1 March 2022, the remaining provisions of the Single-use and Other Plastic Products (Waste Avoidance) Act 2020, which apply to polystyrene products and oxo-degradable plastic, came into operation.

The Act prohibits the sale, manufacture, production, supply and distribution of certain single-use and other plastic products and as at 1 March 2021, the following products were designated "prohibited plastic products" to which this prohibition applied:

  • a single-use plastic drinking straw;
  • single-use plastic cutlery;
  • a single-use plastic beverage stirrer; and
  • a product, or product of a class, brought within the ambit of this definition by the regulations.

From 1 March 2022, “prohibited plastic products” now also includes:

  • an expanded polystyrene cup;
  • an expanded polystyrene bowl;
  • an expanded polystyrene plate; and
  • an expanded polystyrene clamshell container.

From this date, the offence provisions relating to the manufacture and production of oxo-degradable plastic products and the selling, supply or distribution of these products in course of carrying on a business as set out under Part 3 of the Act also came into effect.

Energy

VIC: DEWLP releases the Victorian Offshore Wind Policy Directions Paper – have your say from April

DEWLP has released the Victorian Offshore Wind Policy Directions Paper which outlines the vision for establishing an offshore wind sector for Victoria. Offshore wind as an energy source forms part of Victoria's clean energy transition, and almost $40 million from the Energy Innovation Fund will be used for the development of 3 offshore wind projects.

The vision as set out in the Directions Paper, includes the Government’s commitment to deliver the initial offshore wind tranche of at least 2GW by 2032 with a longer term offshore wind targets of 4GW of offshore wind capacity by 2035 and 9GW by 2040. It is aimed that the first power from the program will be provided by 2028.

It is understood that consultation will commence next month with feedback to be provided by visiting engage.vic.gov.au.

Environmental protection

Commonwealth: Environmental reform package to include 10 regional plans in priority development regions

In a joint media release the Minister for the Environment, Sussan Ley, and Minister for Resources and Water, Keith Pitt, have announced a $128.5 million reform package dedicated to streamlining the national environmental assessment and decision-making processes. It is proposed that the reform package will involve the delivery of regional plans in priority development regions with the purpose of “protect[ing] areas of environmental significance, streamline assessments and manage cumulative impacts”. It is understood from the announcement that these regional plans will effectively remove the need for a project-by-project approval under the Environment Protection and Biodiversity Conservation Act 1999 (EPBC Act), thus streamlining development approvals.

At this stage it is unclear where these "priority development regions" will be, however Professor Graeme Samuel AC in his Final Report of the Independent Review of the EPBC Act relevantly recommended that the Commonwealth should develop and implement regional plans with a focus on key Commonwealth priorities, including in biodiversity hotspots, areas foreshadowed as national priorities for economic development and areas where matters of national environmental significance are under greatest threat.

Once the "priority development regions" have been identified and regional plans have been developed, it will be important to understand how this will affect your proposed development if it will be located in one of these regions.

Commonwealth: Administration of threatened species and ecological communities under EPBC Act only partly effective and not efficient says audit

The Auditor-General of the Australian National Audit Office has completed an independent performance audit to assess the effectiveness and efficiency of the Commonwealth Department of Agriculture, Water and the Environment’s (DAWE) management of threatened species and ecological communities under the Environment Protection and Biodiversity Conservation Act 1999 (EPBC Act).

The findings of the audit are contained in the Auditor-General Report No.19 2021–22 titled Management of Threatened Species and Ecological Communities under the Environment Protection and Biodiversity with the Auditor-General ultimately finding that:

  • the administration of threatened species and ecological communities under the EPBC Act is partly effective;
  • DAWE is unable to demonstrate it is efficient; and
  • there is limited evidence that desired outcomes are being achieved, due to DAWE’s lack of monitoring, reporting and support for the implementation of conservation advice, recovery plans and threat abatement plans.

The Auditor-General provided the following six recommendations, all of which DAWE has agreed to:

  • Recommendation 1: DAWE develop a strategy to ensure that its processes for determining what should be considered for listing identify the species, ecological communities and key threatening processes that will have the greatest impact on achieving the objectives of the EPBC Act.
  • Recommendation 2: DAWE regularly review, update and implement procedural guidance, training and quality assurance arrangements, to ensure listing assessments are conducted in an effective manner that meets legislative and procedural requirements.
  • Recommendation 3: DAWE to establish arrangements to:
    • ensure conservation advice, recovery plans and threat abatement plans are reviewed and updated; and
    • ensure all reviews assess whether the objectives and actions of the plan have been completed.
  • Recommendation 4: DAWE:
    • establish arrangements to obtain assurance over the implementation of conservation advice, recovery plans and threat abatement plans; and
    • use the results of these arrangements to identify conservation advice, recovery plans or threat abatement plans that require departmental support or coordination.
  • Recommendation 5: DAWE measure its efficiency, timeliness and use of resources in listing assessments and conservation planning, and use these measures to inform a targeted approach to improving its timeliness and efficiency.
  • Recommendation 6: DAWE establish a framework for measurement, monitoring and reporting on listing assessments, conservation advice, recovery plans and threat abatement plans that includes:
    • information on how listing assessments and the development and support for the implementation of conservation plans have contributed to the achievement of intended outcomes;
    • aggregate output information on the department’s progress against listing assessments and the development and implementation of conservation advice, recovery plans and threat abatement plans, to better support internal decision-making; and
    • a schedule for periodic evaluation.

NSW: Draft environmental regulations released for public comment

The NSW Environmental Protection Agency (EPA) has recently undertaken a comprehensive review of the Environment Operations (General) Regulation 2009 (EO Regulation 2009) and the Protection of the Environment Operations (General) Regulation 2021 (POEO General Regulation 2021).

Following this review, the EPA has released a draft Protection of the Environment Operations (General) Regulation 2022 (Draft Regulation) for public comment, containing proposed amendments to the EO Regulation 2009 and the POEO General Regulation 2021. In addition to the Draft Regulation, the EPA has also published a Regulatory Impact Statement (RIS), which seeks to detail the objectives and rational of the proposed changes contained within the Draft Regulation.

As noted in the RIS, the proposed amendments seek to:

  • ensure the provisions of the Protection of the Environment Operations Act 1997 (POEO Act) can be implemented in an efficient and effective manner;
  • recover the costs of administering the POEO Act and the POEO General Regulation 2021 through applying the user pays and polluter pays principles;
  • improve the operability of the POEO General Regulation 2021;
  • clarify and simplify the POEO General Regulation 2021; and
  • refine definitions and improve operation of Schedule 1 of the POEO Act.

While mostly administrative in nature, one noteworthy amendment being considered is aimed at correcting an unintended consequence of previous amendments made in 2019 which limited licencing requirements to "extractive activities" which present a moderate to high environmental risk where only where the extractive materials were being sold. Amendment to the definition of "extractive activities" is being considered to ensure all extractive activities that pose a moderate to high risk to the environment are licensed and regulated by the EPA whether the extractive material is to be sold or not.

The Draft Regulation will remain open for public comment until 5:00pm, 14 April 2022 with the EPA encouraging submissions from both businesses and individuals.

Special thanks to Gabrielle Lawrence and Bella McNamee (Brisbane), Casey Guilmartin (Melbourne) and Samuel Mursa (Sydney) for their contribution to this edition.

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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.