The WA Supreme Court handed down a decision in late 2015 that invalidated the environmental approval for the State Government’s proposal to extend Roe Highway. The decision has put the “Roe 8 Project” on hold, which is an $1.6 billion infrastructure project aimed at delivering improved access from Perth’s main inland industry areas to Fremantle Port and the Kwinana marine/industrial centre. The decision is also affecting decision making for environmental authorisations in WA generally as the EPA revises its processes in response to the decision. This article explains the Court’s findings and some consequences we have observed for proponents.

The case concerned a challenge by a local interest group to the Environmental Protection Authority’s (EPA) recommendation to the Minister under the Environment Protection Act 1986 (WA) to approve the Roe 8 proposal subject to conditions, and the subsequent decision of the Minister implementing that recommendation. The basis of the challenge was that the EPA did not take into account its environmental offsets policy that said where implementation of a proposal would result in significant residual impact to a critical environmental assets after all efforts to mitigate impacts were exhausted:

  1. the EPA would not consider offsets as a means of rendering the proposal acceptable; and
  2. there would be a presumption against approval.

The court declared the EPA’s decision invalid because the EPA had concluded that implementation of the Roe 8 proposal would result in significant residual impacts to critical environmental assets and, without considering its offsets policy, recommended approval subject to offset conditions.

The key findings were:

  • When assessing projects, the EPA has to take into account its own policies, which include its non-statutory Assessment Guidelines and Protection Bulletins
  • It would be inconsistent with the EPA’s independent and expert environmental assessment and advisory functions if it were to ignore its own policies, and this could lead to a “very real risk of differential treatment, inconsistent and idiosyncrasy”. The Court also found that the EPA ignoring its own policies would lead to practical uncertainty for the proponents and the public who relied on the EPA’s policies when carrying out, or participating in, environmental impact assessment.
  • Under the EPA’s previous policies, the fact that the EPA found that the Roe 8 project would have a significant impact on a critical environmental asset meant that it should then have acknowledged that offsets can’t make a project which has an unacceptable environmental impact acceptable, and applied a presumption against recommending an approval.
  • There is also what the Court called a “cogent argument” (which it didn’t have to decide) that offsets which are about the acquisition and management of land for offsets don’t mitigate or offset environmental degradation in any material way.
  • The EPA must consider the totality of the impacts of proposals and make its recommendations to the Minister based on looking at all environmental factors in combination, rather than looking at each environmental factor in isolation.
  • While the Minister is able to consider the social utility or desirability of proposals, these matters are irrelevant to the EPA, which must instead be focused on doing its own expert, independent assessment of the environmental impact of proposals.
  • Conditions which provide the CEO with some discretion about the submission of a management plan only provide the CEO with discretion about the form and timing of the plan – not its actual content.

As a result of this decision, the EPA is now adopting robust procedures to ensure its policies are considered and that this consideration is documented. This is requiring more input from proponents and is leading to a more careful consideration of the relevant issues by the EPA. The decision may also influence practises by other WA government departments, along with practises in other States and at a Commonwealth level.

The key implications for proponents are:

  • For future projects/assessments/ and changes to existing projects/conditions – proponents should clearly consider and address relevant government policies in their assessment documents and know that the government departments will need to give these policies full consideration too. There is opportunity to point out how existing assessments and processes have taken EPA policies into account to keep those approval processes on track.
  • For already approved projects – although it becomes more difficult as time passes, these may be vulnerable to review if a government department policy wasn’t sufficiently considered in the assessment. During implementation, consider carefully what the CEO can lawfully approve under project conditions. For example, the CEO may not have power to approve a management plan if the content does not meet the requirements of the approval conditions.
  • For projects which use/aim to use offsets – the assessment may be subject to increased scrutiny, with offsets only used as a last resort. For offsets which are primarily about land acquisition or management, there is a risk these won’t be considered acceptable offsets (unless there is already a real risk that the offset land would otherwise be degraded).

The Minister for Environment has lodged an appeal against the decision and has commissioned an independent review of the EPA’s policies and processes. This review is currently ongoing and is prompting some debate and thought in Western Australia as to what reforms are required to the EPA’s internal processes, policies, procedures and legislation. 

The decision is reported at: Save Beeliar Wetlands (Inc) v Jacob [2015] WASC 482.