PO Box 439 Avalon
NSW 2107
Australia
+612 9973 1728
www.hsi.org.au
Head Office:
2100 L Street, NW
Washington, DC 20037
USA
301-258-3010
Fax: 301-258-3082
Officers
Wayne Pacelle
President
Andrew N. Rowan, Ph.D.
Vice President
G. Thomas Waite III
Treasurer
Australian Office
Michael Kennedy, Director
Verna Simpson, Director
Australian Board
Peter Woolley
Jean Irwin
Elizabeth Willis-Smith
Dr John Grandy
Dr. Andrew Rowan
Michael Kennedy
Verna Simpson / Demus King
General Manager
Chair of Taskforce
Offshore Streamlining Taskforce
Department of Industry
GPO Box 1564
CANBERRA ACT 2601
By email to:
20 December 2013
Dear Demus
Re: Streamlining Offshore Petroleum Environmental Approvals Consultation
Humane Society International (HSI) provides this submission on behalf of more than 60,000 supporters in Australia and 11 million supporters worldwide. HSI welcomes the opportunity to comment on the Draft Strategic Assessment Report and Program documents, and the Exposure Draft of the amendments to the Offshore Petroleum and Greenhouse Gas Storage (Environment) Regulations 2009 (OPPGS Act) (Environment Regulations). HSI’s primary interest in this issue is the protection of threatened and migratory species and the ecological communities and habitats on which they rely. HSI has been responsible for a number of nominations under the EPBC Act which has led to the listing of many species and ecological communities. HSI has sought further legal advice on which submission is based, and in preparing this response we have had regard to the Final Terms of Reference for the proposed structure of the Strategic Assessment Report. Our key concern is that the current levels of protection provided by the EPBC Act will not be reflected or provided for in the new arrangements.
HSI has previously raised our concerns over the significant gaps between the Environment Protection and Biodiversity Conservation Act 1999 (EPBC Act) and the OPPGS Act, and previously commented on the draft terms of reference for the terms of reference. A copy of our submission to this process is attached at Appendix 1 and we refer again to concerns raised in this submission for your consideration as part of this process.
Insufficient protection for Matters of National Environmental Significance
HSI firmly believes that all Matters of National Environmental Significance (MNES), and particularly the listed species and ecological communities under the EPBC Act, should be provided with the highest levels of protection. We believe that it is important that decisions taken that impact on these MNES are made by the Federal Minister for the Environment.
HSI also has concerns about the proposed changes in the Environment Regulations concerning the discharges of produced formation water. These seek to repeal the current Environment Regulations which include a quantitative limit on discharge of produced formation water and makes it an offence to exceed this limit. The proposed Environment Regulations seek to replace these provisions with far more general requirements, which we believe would be to the detriment of MNES and result in reduced protection levels.
Conflict of interest
HSI’s key concern is that the streamlining of offshore petroleum environmental approvals will move this vital decision making role over to the Federal Minister for Industry. We understand that this would transfer responsibility for MNES on a day-to-day basis from the Minister for the Environment to the Minister for Industry. We strongly believe that putting these decisions in the hands of the Minister for Industry could lead to significant conflicts of interest, and most likely less protection for MNES.
Lack of accountability
The further devolution to the National Offshore Petroleum Safety and Environment Management Authority (NOPSEMA), which works at arm’s length under the Department of Industry, further reduces accountability. Currently under the EPBC Act the Minister for the Environment is accountable for every decision that impacts upon MNES. The nature of petroleum operations, often in remote environments and in habitats that are critical to the survival of listed species, further raises our concerns that the important role of assessing and approving any impacts on MNES is being abandoned by the Government, thus reducing their protection.
Objects of EPBC Act not adequately reflected
We do not believe that the objects of the Environment Regulations correspond to the objects of the EPBC Act. HSI considers that the only way that the Environment Regulations can meet the objects of the EPBC Act is to explicitly provide for them in the Regulation. Based on Table 4.1 in the Draft Strategic Assessment Report (the Report) we do not consider the explanations provided to be sufficient to demonstrate that the Environment Regulations are able to address the objects of the EPBC Act.
The Environment Regulations do not include substantive provisions that are sufficiently detailed and specific to meet all the objects of the EPBC Act. The current objects of the Environment Regulations are general in nature, and would not necessarily be specifically construed to protect MNES. Language used suggests that proponents would not be bound to identify MNES (use of ‘may’ rather than ‘must’), does not suggest what ‘an acceptable level’ of environmental impacts and risks would be, nor how protection of MNES could be assured if exposed to ‘an acceptable level’ of harm as a result of these impacts and risks. This lack of assurance for the protection of MNES is extremely concerning.
The failure of the Environment Regulations to make any specific reference to consider or act consistently with recovery plans, threat abatement plans or other conservation plans associated with the conservation of biodiversity and MNES under the EPBC Act, in our view removes the legislative requirement to act consistently with any relevant plan and therefore once again means that the Environment Regulations are not consistent with the EPBC Act. This will result in insufficient protection for MNES.
HSI is also concerned that any approvals made under the Environment Regulations will not have the ability to attach conditions specific to dealing with protecting MNES on impacts, unlike the process currently under the EPBC Act. Nor do the Environment Regulations include offence provisions specifically designed to protect MNES from significant impacts, as currently included in the EPBC Act. The offence provisions under the EPBC Act are also considerably more onerous, and should be reflected in the Environment Regulations to afford MNES with protection at a similar level to that provided under the EPBC Act.
It is also unclear to HSI how the Environment Regulations can meet Australia’s international legal obligations, in the absence of any specific requirement to implement relevant environmental treaties. Once again we believe this is a result of the general nature of the Environment Regulations and will result in MNES being provided with insufficient protection.
Lack of transparency
HSI remains concerns at the lack of transparency and guidance around consultation in the Program Report, particularly regarding the length of time required for public consultation. This is in contrast to the EPBC Act which specifies minimum time frames for public exhibition periods. It is our view that the Environment Regulations fail to offer the same guaranteed level of engagement with all stakeholders as the current approach under the EPBC Act. This will result in less public confidence in the final outcome. Furthermore, the Environment Regulations appear to limit consultation to prescribed agencies and affected persons, whereas in contrast the EPBC Act does not restrict consultation to any particular group.
Currently under the EPBC Act the Minister is able to set up a public inquiry into the potential impacts of an offshore petroleum development, however in contrast, the Environment Regulations do not allow for this facility, further limiting transparency.
The Environment Regulations also fail to include equivalent provisions to that included in the EPBC Act which allows an ‘aggrieved person’ to commence judicial review proceedings for an alleged breach of the Act. The failure of the Environment Regulations to include open standing provisions is a serious blow to stakeholder confidence in an already compromised process.
Failure to include precautionary principle
The Environment Regulations do not include the equivalent provision to that included in the EPBC Act to ‘take into account’ the precautionary principle when deciding whether to approve an action. Once again this will likely result in insufficient protection being provided for MNES.
In conclusion, after reviewing the documentation HSI considers that in particular, point 3 of the Terms of Reference (Matters Protected under Part 3 of the EPBC Act) cannot be shown to have been met in the current documentation, and as a result we have significant concerns about how these matters will be protected under NOPSEMA. HSI therefore urges the Taskforce to re-examine these points to ensure that the Federal Minister for the Environment retains a key role in decisions, without any reductions in transparency, with sufficient public consultation timelines open to all stakeholders, to ensure the most precautionary approach is applied for offshore petroleum environmental approvals. Please do not hesitate to contact me if you would like to discuss any aspect of this submission further.
Yours sincerely
Alexia Wellbelove
Senior Program Manager
Appendix 1: HSI’s previous submission on the Draft Terms of Reference for a Strategic Assessment of the Environmental Management Authorisation Procedure for Petroleum Activities Administered by the National Offshore Petroleum Safety and Environmental Management Authority under the Offshore Petroleum and Greenhouse Gas Storage Act 2008
PO Box 439 Avalon
NSW 2107
Australia
+612 9973 1728
www.hsi.org.au
Head Office:
2100 L Street, NW
Washington, DC 20037
USA
301-258-3010
Fax: 301-258-3082
Officers
Wayne Pacelle
President
Andrew N. Rowan, Ph.D.
Vice President
G. Thomas Waite III
Treasurer
Australian Office
Michael Kennedy, Director
Verna Simpson, Director
Australian Board
Peter Woolley
Jean Irwin
Elizabeth Willis-Smith
Dr John Grandy
Dr. Andrew Rowan
Michael Kennedy
Verna Simpson / Manager, Environment, Safety and Security
Resources Division
Department of Resources, Energy and Tourism
GPO Box 1564
Canberra ACT 2601
By email to:
10 September 2013
Dear Sir or Madam
Re: Streamlining Offshore Petroleum Environmental Approvals
Humane Society International (HSI) welcomes the opportunity to provide comments on the “Draft Terms of Reference for a Strategic Assessment of the Environmental Management Authorisation Procedure for Petroleum Activities Administered by the National Offshore Petroleum Safety and Environmental Management Authority under the Offshore Petroleum and Greenhouse Gas Storage Act 2008 (OPGGS Act).”
HSI has sought preliminary legal advice and has a number of concerns with regard to the proposed approach of streamlining offshore petroleum environmental approvals, which we outline in this submission on behalf of our 60,000 Australian supporters.
Firstly, HSI is concerned that the proposed streamlining approach represents an abdication of responsibility for those issues normally covered by the Environment Protection & Biodiversity Conservation Act 1999 (EPBC Act), given the significant gaps between the EPBC Act and the OPGGS Act. We believe the process as outlined to be inadequate.
The OPGGS Act has minimal detail on environmental requirements, delegating the subject to the Regulations. Under the Regulations the key requirement is the preparation of an Environmental Plan, however NOPSEMA allows significant flexibility in this plan of how environmental management should be undertaken and how ‘tolerable risks’ are managed. For an issue such as offshore petroleum exploitation which involves a number of high risk activities that risk impacting upon matters of national environment significance as listed under the EPBC Act we do not consider this to be adequate.
HSI understands that: the OPGGS Act and Regulations are limited in their ability to refuse any environmental plan as being ‘acceptable’; that the NOPSEMA Board has limited environmental expertise to undertake any informed assessment (with only one Board member currently having environmental expertise); that NOPSEMA do not verify the accuracy or completeness of the operator-submitted activity description until the compliance stage; and that NOPSEMA’s Regulations do not allow for the setting of conditions on any approvals, instead taking a goals, objectives and standards approach. In light of these numerous factors, HSI considers the process standards in place under NOPSEMA to be wholly unacceptable, requiring significant improvement to meet EPBC standards.
In addition, HSI does not consider that the goals, objectives and standards as interpreted by NOPSEMA in their Guidance note[1] meet current standards as set out in the draft Framework of Standards for Accreditation of Environmental Approvals under the EPBC Act.
Furthermore, HSI does not consider it appropriate that the proposed Terms of Reference refer to a draft document (the Framework of Standards for Accreditation of Environmental Approvals under the EPBC Act) as a basis against which the OPGGS environmental management authorisation process is considered (section 3.2 b)). HSI understands that this document currently has no formal status, having been released for public consultation in late 2012 and developed no further since that consultation. Analysis undertaken by the Environmental Defenders Offices for the Places You Love alliance (of which HSI is a founding member)[2] found that no state or territory laws currently meet all the 106 standards identified by the draft framework document. It is therefore HSI’s view that significant amendment to the OPGGS Regulations would be required as NOPSEMA cannot be considered to meet current EPBC standards.
HSI is also concerned at the closed nature of the proposed handing over environmental approval processes to NOPSEMA, due to NOPSEMA having no public consultation processes. In light of the process based concerns above, this suggests that NOPSEMA will have too much discretion over matters of national environmental significance as listed under the EPBC Act, with little if any opportunity for public input which is totally unacceptable. Stakeholders should be interpreted broadly to include all those who wish to provide comment or have an interest in a proposed approval process, and not be limited to those ‘persons whose functions, interests or activities may be affected’1. Again, these areas require significant improvement in order to meet EPBC Act standards.
In conclusion, HSI does not believe that the abdication of Commonwealth responsibility with regards to offshore petroleum approvals is appropriate or legal, as it would result in the acceptance of lower standards than are currently in place under the EPBC Act. HSI considers that significant amendment would be required in order to meet these standards under NOPSEMA, and has sought further legal advice on these matters. I would like to thank you for the opportunity to provide these comments, and would be happy to discuss these matters further.
Yours sincerely
Alexia Wellbelove
Senior Program Manager
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