Last week the Environmental Protection Amendment (Validation) Bill 2014 (Bill) was introduced and read for the first and second time in the West Australian Parliament. 

The Bill validates 25 environmental approvals granted between 2002 and 2012 which are at risk of being found invalid and is a response to the Supreme Court’s 2013 Browse LNG Precinct decision and a subsequent review of the independent Environmental Protection Authority’s (EPA) procedures.

Environment Minister Albert Jacobs expects the legislation to come into force within three weeks as the Bill has the support of both Labour and the Liberals.

In this Alert, Partner Sarah Macoun and Associate Kylie Panckhurst discuss the reasons for the Bill and the circumstances covered by the amendments.

Key Points

The Bill validates environmental approvals granted prior to 19 August 2013 to the extent that they may be invalid due to:

  • a failure to comply with section 11 and/or 12 of the Environmental Protection Act 1986 (WA) (EP Act);
  • the existence of a reasonable apprehension of bias by EPA members; or
  • the response to a perceived conflict of interest being to rely on a delegation where no  delegation was in fact available.
  • The Bill does not exclude challenges to the validity of such approvals on other grounds. 

Supreme Court decision

On 19 August 2013, the Supreme Court of Western Australia upheld a challenge to the validity of the Browse LNG Precinct environmental approvals. [1]  The Court found that the EPA failed to comply with the requirements of sections 11 and 12 of the EP Act:

  • Section 11 sets the quorum for an EPA meeting at three un-conflicted members.
  • Section 12 of the EP Act prohibits members with a direct or indirect pecuniary interest in a matter before a meeting of the EPA from taking part in the consideration or discussion of the matter, or voting on the matter. 

The Court held that failure to comply with the technical requirements of the EP Act invalidated the Browse environmental approvals which, although granted by the Minister, were based on the EPA’s assessment and recommendations.

Government Review

Following the Supreme Court’s decision, the Minister for the Environment commissioned a review of the EPA procedures.  The review identified 25 existing projects as being at risk of having their State environmental approvals determined as invalid due to technical governance issues.  These projects are currently either at the construction or production stage and many are billion dollar developments.  The ‘at risk’ projects include BHP Billiton’s 1.5 billion dollar Macedon gas plant, which is expected to produce 20 percent of the State’s domestic gas.

Following the review, the EPA has updated its procedures and governance arrangements to ensure they comply with legislation and public sector standards.

The Bill

The purpose of the Bill is to amend the EP Act to effectively provide that the rights, obligations and liabilities of all persons shall be the same as if each relevant action of the EPA and subsequent environmental approval had been validly done.

The Bill seeks to amend the EP Act by inserting a Part X which includes sections 135, 136 and 137.

Section 135 sets out different grounds of invalidity (as identified by the review) which the amendments address.  The grounds for invalidity are:

  • a failure to comply with section 11 and/or 12 of the EP Act;
  • the existence of a reasonable apprehension of bias by EPA members; or
  • the response to a perceived conflict of interest being to rely on a delegation where no  delegation was in fact available. 

Actions of the EPA and environmental approvals dated prior to 19 August 2013 which are or may be invalid due to the grounds set out in section 135, are deemed by section 136 to be valid, and always to have been valid.

The Government has intentionally drafted the Bill to exclude the Browse LNG Precinct assessment acts and decisions (section 137).  The Government excluded Browse from validation because the Supreme Court has already decided the matter and the proposal is currently being reassessed by an independent panel.  The reassessment renders the Bill obsolete for Browse, but is a reminder that the Bill, once passed, will save other projects from challenges and reassessment on similar grounds.

Many stakeholders have queried whether the Bill will rule out any appeals which challenge environmental approvals prior to August 2013.  The current drafting of the Bill does not prevent a court from setting aside an approval if it finds that the EPA’s assessment was actually influenced by the interest of one or more of its members.  The drafting also does not prevent decisions being challenged on grounds which are not set out in section 135.

For more information on how the Bill may affect your rights, a copy of the Bill can be found here.