I addressed the the Australian Environment Business Network’s National Conference this week, and to prepare I’ve immersed myself in 7 Australian jurisdictions (NSW, QLD, WA, TAS, ACT, NT and CTH) to see what’s on the agenda for environmental law reform in 2019 and reviewed the notable recent changes.
My conclusion? Most reform is in 4 key areas: waste, climate, water and environmental enforcement.*
Waste … and energy from waste
Almost every jurisdiction is changing laws and developing policy in the waste space. Significant policies include the National Waste Policy of December 2018; NSW’s 20 Year Waste Strategy; and WA’s Waste Avoidance and Resource Recovery Strategy 2030. There is also a raft of notable changes to technical requirements, for example, the 25 January 2019 changes brought about by Protection of the Environment Operations Amendment (Asbestos Waste) Act2018 in NSW, or QLD’s new waste classifications, end of waste codes, ERA and amended waste levy.
Waste to energy / energy from waste is also a key theme, with a report from the Clean Energy Finance Corporation finding NSW, VIC, SA, ACT and WA among the most favourable jurisdictions for such facilities, and WA having 4 approved waste to energy facilities already.
New climate policy is planned in WA in 2019 and Tasmania’s Climate Change (State Action) Act 2008 is to be amended. But the big news in the legal world is the recent 2019 NSW case of Gloucester Resources Limited v Minister for Planning  NSWLEC 9. Among the reasons for refusal of a new open cut coal mine, CJ Preston of the NSW Land and Environment Court found that “the GHG emissions of the coal mine and its coal product will increase global total concentrations of GHGs at a time when what is now urgently needed, in order to meet generally agreed climate targets, is a rapid and deep decrease in GHG emissions. These dire consequences should be avoided. The Project should be refused.” Legal commentators speculate that the approach in Gloucester could be adopted in other jurisdictions.
On water, WA proposes a new Water Resources Management Act to consolidate 6 current Acts, the NT proposes a Water Amendment Bill 2019 – under consultation until 11 March 2019, and in NSW we have seen the passage of the Water Management Amendment Act 2018.
Whatever the nature of your organisation and the relevance of waste, climate and water reform, one topic is inescapable: the continuing trend in environmental enforcement. Penalties are increasing in 2019** and regulators are consistently reporting on enforcement action that grows in sophistication.
Environmental regulators that may have been pre-occupied with administrative changes to their departments (such as the change from DEHP to DES, or DER to DEWR in 2017 and 2018) are now externally focussed. DES in QLD recorded its highest ever fine in a prosecution of Linc Energy Limited ($4.5 million) for five offences of wilfully and unlawfully causing serious environmental harm, over a period of seven years, in contravention of the Environmental Protection Act1994. Convictions were also recorded against the company.
2018 also saw the adoption by EPA NSW of a new policy on Monetary Benefit Orders. Monetary benefits are the financial advantage an offender gains over their compliant competitors who have done the right thing. It signifies that EPA NSW are likely to commence seeking such orders during environmental enforcement.
Action for directors and managers
The key governance requirement for directors and senior environmental managers is to exercise due diligence. In a nutshell, this means understanding the organisation’s legal compliance requirements and putting in place systems that ensure compliance.
Understanding legal changes is important. But I also know from my January 2019 client survey that many of the priority issues for clients arise from complex ongoing issues such as contamination liability, underground storage tanks, licence requirements and vegetation management. These are not necessarily matters for reform in 2019 (depending on jurisdiction) but they are of fundamental importance.
Take time to have a conversation with your team and advisers about the status of your environmental registers, whether 2019 reform will impact you, and how existing sites and operations are being managed.
Please get in touch or book me for a tailored fixed fee briefing if you would like a more detailed perspective on the changes or how they may affect you.
For an abridged version of the presentation, which provides a summary of the changes, see below