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Environmental Impact Assessment (EIA)

Introduction

Environmental Impact Assessment (EIA) is a procedure for assessing the impacts on the environment likely to result from development proposals. It is primarily a scientific technique existing within a legal framework. Although the focus is on biophysical issues, social and economic impacts are also considered.

In the Victorian Supreme Court case of Friends of Mallacoota v Minister for Planning and Minister for Environment and Climate Change [2010] VSC 222, Justice Osborne was not persuaded that the assessment of the environmental effects on the proposed works was intended to exclude social effects. He noted that this argument would materially reduce the potential utility of the Environment Effects Act 1978 (“EE Act”) and that there was nothing in the EE Act that suggested Parliament intended a limitation of the type contended for. The case suggests that broad issues may be taken into account as part of the assessment process.

Most EIA systems require a high level of public involvement in identifying issues to be studied and commenting on the environmental studies that are completed.

EIA laws were made by the Commonwealth and Victorian governments in the 1970s, following an EIA law made in the United States, called the National Environmental Policy Act 1969 (“the US model”). Over 70 other legal systems have now adopted the US model. It was intended to apply to public projects and government decision-making, but because much public decision-making involves approval of private projects, EIA has been logically extended to those decisions as well.

The EIA system at both the national level, under the Environment Protection and Biodiversity Conservation Act 1999 (Cth) (“EPBC Act”), and the state level in Victoria, under the EE Act, derives from the US model. In Victoria, in 1994, the EE Act was amended in an attempt to render the system unenforceable at law.

In addition to the EE Act, there are also requirements in the Environment Protection Act 1970 (Vic) (“EPA”) and the Planning and Environment Act 1987 (Vic) (“PEA”) in Victoria that require assessment of the environmental impacts of proposed developments, and public consultation in the assessment procedure.

With the exception of New South Wales, most Australian EIA laws, unlike those in the United States, are widely thought not to be reviewable by the courts. They are said to have been deliberately framed as administrative arrangements that guide ministers rather than bind them. This is definitely not the case with the Commonwealth EPBC Act, which makes progressive provision for the courts to test EIA decision making.

With respect to the Victorian system, as with other US models, flawed decision making with respect to an EIA should be open to challenge. In principle, the adequacy of an EIA that has been completed under Victorian or Commonwealth law can also be challenged. The circumstances of each case should be carefully examined in each specific situation for compliance with quality principles (see “Quality of EIA”, below).

Commonwealth

The EPBC Act has reorganised Commonwealth law on EIA, biodiversity conservation and heritage protection. Some aspects of the new system are not yet in place; for example, there is no standing bilateral arrangement under which Victoria would do assessments for the Commonwealth. Some significant features of the EPBC system are that it:

  • has offences, backed by heavy fines, to enforce the need for environmental assessment;
  • can apply to private development proposals on private land regardless of Commonwealth Government involvement; and
  • is generally enforceable through injunction by third parties who enjoy extended rights of standing before the Court.

The EPBC Act also sets out the concept of “ecologically sustainable development” (ESD) (s 3A), development that satisfies present needs while preserving the ability of future generations to satisfy their own needs, and the five principles that it implies:

  1. environmental considerations must be integrated into all forms of decision making;
  2. when the information about likely environmental consequences or the extent of their possible impacts is uncertain, precautionary and protective measures should be taken without delay: the precautionary principle (see also s 391);
  3. there should be equity between generations in the consumption of finite resources: the principle of intergenerational equity;
  4. biodiversity should be preserved and the integrity of ecological systems protected; and
  5. valuation, pricing and incentive mechanisms that advance sustainable development should be utilised.

To determine whether and what level of EIA will be required under the EPBC Act in a given situation, it is helpful to examine the situation in these steps:

  • Step 1: “Triggering” – will an offence be committed through the activity?
  • Step 2: Is there an exemption?
  • Step 3: Is the activity a “controlled action”?
  • Step 4: Which mode of assessment should be selected?
  • Step 5: The assessment; leading to –
  • The decision: Is the activity prohibited or not?
Step 1: The office (triggering)

Part 3 of the EPBC Act sets out the “matters of national environmental significance” and makes it an offence to take any action that is likely to have a significant impact on any of them. They are:

  1. heritage (world heritage or national heritage);
  2. wetlands of international significance (Ramsar Convention, see www.ramsar.org);
  3. protected species and communities (biodiversity conservation);
  4. protected migratory species;
  5. nuclear actions;
  6. Commonwealth marine areas; and
  7. prescribed in Regulations (a greenhouse gas trigger was originally proposed).

There is also a range of “Commonwealth matters”, which include activities on Commonwealth land (including Commonwealth heritage places outside Australia) and activities by Commonwealth agencies.

Commonwealth decisions to grant authorisations such as licenses and permits and the provision of federal funding are no longer “actions” of Commonwealth agencies for which assessment can be required (ss 524(1), 524A EPBC Act).

The format of the offences in Part 3 with respect to all of these matters of national environmental significance is very similar. In the example of biodiversity (nature) conservation, under section 18(2) (below), taking action likely to have a significant impact on a listed threatened species or an endangered community is an offence. The Commonwealth lists of threatened species may be found at www.environment.gov.au/biodiversity/threatened/index.html.

18(2) A person must not take an action that:

  1. has or will have a significant impact on a listed threatened species included in the critically endangered category; or
  2. is likely to have a significant impact on a listed threatened species included in the critically endangered category.

What amounts to a “significant impact” is discussed below under “Step 3: is the activity a ‘controlled action’? (referral)”.

There are civil penalties for offences against part 3 of the EPBC Act. It is possible to obtain an injunction to restrain the activity (ss 475–80), and in this respect third-party objectors have broader standing rights before the court (ss 487–88).

The only way that such an action could be taken, according to the EPBC Act, is by subjecting it to EIA and then obtaining approval from the federal Environment Minister, unless there is an exemption for it.

Step 2: Is there an exemption?

Part 4 of the EPBC Act sets out a number of exemptions from the need to do EIA and get the approval of the federal Environment Minister. These are tightly defined. The possibility of a one-off exemption being declared for a project that enjoys short-term political favour has been reduced and could be challenged in court.

The exemptions include where the action:

  • has been assessed and approved;
  • could be done in a number of ways and the minister agrees that it will not have a significant impact if done in one of those ways and certifies it;
  • is subject to a special environmental assessment process (s 160(2));
  • is declared in a bilateral agreement between the Commonwealth and the relevant state or territory not to need approval and a bilaterally accredited management plan is in place (s 29);
  • has been declared not to need approval (s 33), such as Commonwealth action in accordance with an accredited management plan; or
  • is an operation undertaken in accordance with a Regional Forest Agreement (RFA) (s 38).

On the question of whether forestry operations comply with the relevant RFA see the Lawyers for Forests website at www.lawyersforforests.asn.au.

Step 3: Is the activity a “controlled action”? (referral)

In effect this is asking: does the action need approval? The issue must be referred to the federal Environment Minister for an assessment, effectively, of whether an offence could be committed if the activity goes ahead. Section 68 provides that,

… a person proposing to take an action that the person thinks may be or is a controlled action must refer the proposal to the minister for … decision whether or not the action is a controlled action.

State and Commonwealth agencies may refer proposals made by others to the minister for a decision about whether they are controlled actions (ss 69, 71). Their own actions are to be referred under section 68. The federal Environment Minister may now request referral of a proposal to themself (s 70).

When the proposed action has been referred, the minister must decide whether it needs approval, i.e. whether it is a “controlled action”, in that it would be prohibited under part 3, and which provisions in part 3 control it. This essentially comes down to whether there is likely to be a “significant impact” on the environmental quality protected, such as a listed threatened species included in the critically endangered category protected by section 18 (above).

In deciding these questions the minister must consider public comment and all likely adverse impacts on the matter protected (s 75).

Although this appears to confer a discretion on the minister, the question whether there is likely to be a significant impact has an objective answer and the minister’s finding on the point can be reviewed in the Federal Court for legal and factual correctness judicial review. Indeed, in principle, it could be reviewed in the Federal Circuit Court. In Minister for the Environment and Heritage v Queensland Conservation Council Inc [2004] FCAFC 190 (the Nathan Dam Decision) the Full Federal Court overturned a ministerial decision at this point because, in deciding whether significant impacts were likely, the minister failed to take account of the environmental impacts of further development that the project would have facilitated.

How does one know when an impact will be a significant impact? This is a question of:

  1. the intensity of the impact; and
  2. the sensitivity of the environment in which it will take place.

In Booth v Bosworth [2001] FCA 1453 at [99] (the Spectacled Flying Fox Case) it was accepted that a significant impact is an “impact that is important, notable or of consequence having regard to its context or intensity”. That case concerned significant impact on the heritage values of the Wet Tropics World Heritage Area that could follow from destruction of large numbers of flying foxes that ventured from the area for food, although the species was not itself listed as endangered. The need to evaluate significance in light of context and intensity is recognised by other courts enforcing the US model (see “Introduction”, above).

In the US case National Parks and Conservation Association v Babbitt, Stanton and Holland America Line – Westours (2001) 241 F.3d 722 the court made clear that the significance of an impact on an endangered species and its ecological community must be evaluated by analysing both the sensitivity of the eco-system and the nature of the impact – a small impact in a very sensitive and rare eco-system could prove to be very significant.

Administrative Guidelines have been made under the EPBC Act on the evaluation of “significant impact”. These Guidelines can be viewed on the Department of the Environment, Water, Heritage and the Arts website at www.environment.gov.au.

The Guidelines require the significance of an impact on endangered species to be determined by reference to impact on the species as a whole and not on individuals or communities of it. Behind this is the view that so long as the “long-term survival or recovery” of the species as a whole is not affected there is no significant impact. To this extent the Guidelines could well be invalid for inconsistency with the meaning of significance in the Act itself.

When speaking of endangered species, the loss of individuals and communities is “important, notable or of consequence”. Allowing an action to press a species to extinction is not a significant but a catastrophic impact, and contrary to Australia’s international obligations under the Biodiversity Convention. Consideration of the quality of a species’ continued existence must also bear on the question of significant impact.

There is a very relevant and encouraging discussion of these points in the Federal Court decision Humane Society International Inc v Minister for the Environment and Heritage [2003] FCA 64.

If the minister decides that approval is not needed, the activity may be carried out without contravention of the Act. However, if the minister decides that approval is needed then a proponent must be designated (s 75(3)) who must forward preliminary information to facilitate the choice of assessment method; the minister has no option but to choose an assessment method (s 87).

Step 4: Select mode of assessment

When the federal Environment Minister has decided that a proposed activity is a “controlled action”, it must be assessed before it can be approved. It could be assessed under an EIA system of the relevant state government if the system has been accredited in a bilateral agreement (an “Assessment Bilateral”). The draft Assessment Bilateral with the state of Victoria proposes an Environment Effects Statement (EES) under the Environment Effects Act 1978 (Vic) as the mode of assessment that will be equivalent to an Environmental Impact Statement (EIS) under the federal EIA system. Until an Assessment Bilateral is finalised with Victoria, the activity must be assessed under the federal system. Section 87 requires the federal Environment Minister to choose one of the following methods of assessment:

  1. accredited assessment process (this could be a one-off method agreed for the project);
  2. assessment on preliminary documentation (the so-called “desktop assessment”, appropriate where very minor impacts are predictable with certainty);
  3. Public Environment Report (PER);
  4. EIS; or
  5. public inquiry.

Regulation 5.04 and schedule 4 of the Environment Protection and Biodiversity Conservation Regulations 2000 (Cth) (“EPBC Regulations”) set out the issues that are to be addressed in PERs and EISs (see Step 5 below) and this helps in deciding which level is appropriate. The federal Environment Minister has published Guidelines for selecting the appropriate mode of assessment, available on the Department of the Environment, Water, Heritage and the Arts website at www.environment.gov.au/epbc/publications/index.html.

Step 5: Assessment

The EPBC Act sets out the steps to be taken for each of the modes of assessment referred to above. Because EISs often emerge as the most controversial we will focus on those (see ss 101–5). The steps for an EIS are:

  • the federal Environment Minister produces guidelines for preparation of the draft EIS (s 102(2));
  • the draft EIS is completed and published (s 103);
  • the draft EIS is released for public comment (s 103);
  • finalisation of the draft EIS (s 104); and
  • the federal Environment Minister prepares an Assessment Report (s 105).

The scope of assessment under the EPBC Act is also an issue. General assessment is required for:

  • nuclear actions;
  • activities on Commonwealth land; and
  • activities by Commonwealth agencies.

This means that all effects of these on the environment must be assessed.

For the other “matters of national environmental significance”, assessment must be made only of the environmental effects relevant to those matters. This limitation of the Commonwealth role has been widely repeated in commentaries, but it is not clear in the EPBC Act (see the concept of “relevant impacts” in s 82). The draft bilateral agreement with Victoria contains an undertaking by the state that all other environmental effects of the project will also be assessed. The enforceability of this undertaking will be questionable if it is implemented.

A breach of the bilateral agreement can be reported to the Commonwealth Government, which might or might not take action. It may be possible to challenge inadequate assessment of environmental qualities that are not of “national environmental significance” under state law (see “Victoria”, below).

The EPBC Act does not contain a solid statement of the standard of assessment to be reached when impacts on matters of “national environmental significance” are studied. Section 102(2) provides that in preparing guidelines for an EIS, the minister must seek to ensure that the draft EIS will:

  1. contain enough information about the action and its relevant impacts to allow the minister to make an informed decision whether or not to approve … the taking of the action; and
  2. address any matters specified by the regulations.

(See also para 4.03, sch 1 EPBC Regulations). It must be remembered that ministerial guidelines must be consistent with the EPBC Act and the Regulations. Regulations must be consistent with the Act. Because the production of an assessment is mandatory once the action is regarded as a “controlled action” (see above) court decisions about quality of assessment could be applied.

The content of an EIS or PER is specified in schedule 4, EPBC Regulations and includes:

  1. description of the relevant impacts of the action;
  2. detailed assessment of the nature and extent of likely short- and long-term relevant impacts;
  3. a statement whether any relevant impacts are likely to be unknown, unpredictable or irreversible;
  4. analysis of the significance of the relevant impacts; and
  5. any technical data and other information used or needed to make a detailed assessment of the relevant impacts.

The decision of the full Federal Court in the Nathan Dam Decision (above) means that the “relevant impacts” of an action are not limited to the direct impacts of the project (see “Quality of EIA”, below). The draft bilateral agreement with Victoria seeks to import these federal standard and content requirements for an EIS into the Victorian procedures for the production of an EES.

The Secretary of the federal Environment Ministry must prepare and give to the minister an assessment report relating to the proposed action within 30 business days after the minister accepted the proponent’s finalised statement (s 105 EPBC Act). Unfortunately, neither the Act nor the Regulations gives clear guidance on what the minister’s assessment should contain. Presumably the process could be stayed at this point if the document accepted and assessed by the minister could not in truth be called “an EIS”.

The decision: Is the activity prohibited or not?

The federal Environment Minister may approve the proposed action after receiving the assessment report at the end of the assessment process (s 133 EPBC Act). In deciding whether to approve the activity or not, the minister must (s 136(1)) take into account the following mandatory considerations:

  1. issues relevant to any matter of “national environmental significance” that the minister has decided is affected; and
  2. economic and social matters.

In considering those matters, the minister must (s 136(2)) take into account the following factors:

  1. the principles of ESD (set out in s 3A);
  2. the assessment report relating to the action;
  3. the finalised PER or EIS;
  4. the report of the commissioners of an inquiry, if one was conducted;
  5. any other information the minister has on the relevant impacts of the action (including information derived from strategic assessments); and
  6. relevant comments made to the minister by another minister.

The minister may also consider whether the person is a suitable person to be granted an approval, having regard to their history in relation to environmental matters. The minister is prohibited from considering any matters that the minister is not expressly required or permitted by sections 136–140A to consider (s 136(5)).

Approvals granted under the EPBC Act are personal to the applicant. This means that if the relevant land or business is sold the purchaser will have to make another application and the process will be repeated. Conditions may be imposed on a grant of approval (s 134) for the purpose of:

  • protecting a matter of national environmental significance; or
  • repairing or mitigating damage to a matter of national environmental significance.

These possible conditions include:

  • a financial security, such as a bond, guarantee or cash deposit;
  • insurance against specified liability, such as rectification costs that might be incurred by the Commonwealth (see s 499);
  • requiring compliance with conditions in another instrument;
  • independent environmental audit;
  • a plan for managing impacts of the action;
  • environmental monitoring or testing; and
  • industry standard or code of practice.

For the considerations to be taken into account when deciding on conditions, see section 134(4).

Comments on the revised system

The original Commonwealth EIA system under the Environment Protection (Impact of Proposals) Act 1974 (Cth) was a pioneering initiative in a first wave of environmental law. Similar foundations were laid in many countries in view of the new popular environmental consciousness that arose in the 1960s and 1970s, and the ideals of the Stockholm Declaration. However, experience of its operation over 25 years had revealed a clear need for revision, and international concern has also recognised the need to achieve a concept of development that is sustainable infinitely into the future by integrating environmental considerations into all forms of decision making. In this context the EPBC Act offers clear advantages for the EIA process over its predecessor:

  • the concept of ecologically sustainable development and its implicit principles, such as the precautionary principle, are articulated in a statute and drawn into decision making at some points;
  • crucial decisions are made by the federal Environment Minister, rather than by the minister with the greatest interest in approval of the project;
  • EIA is “triggered” by relatively objective criteria, backed by offences with weighty fines;
  • private activities on private land are covered regardless of Commonwealth involvement in them; and
  • many important steps in the system are mandatory and many admit the possibility of review by the Federal Court, with broadened standing for parties with environmental interests.

These advantages must nevertheless be weighed against its most significant shortcomings:

  • The Commonwealth has withdrawn its EIA role from fields in which it has clear power under the Australian Constitution, such as federal funding and import/export regulation, and retained its EIA role only in fields where it sees “direct” national environmental relevance (i.e. those connected to external affairs). This means that many important Commonwealth environmental concerns are being left to the states, such as EIA of Commonwealth-funded state freeway and highway construction projects, and woodchipping for export under Regional Forest Agreements. The states have strong financial interests in the execution of such projects, and are no longer subject to traditional federal checks and balances.
  • The Commonwealth has made weak efforts to get the states to establish systems of equivalent standard for EIA of projects within its political responsibility, but in which it feels it no longer has a “direct” constitutional interest, such as Commonwealth funded state freeway and highway projects.
  • Commonwealth supervision of state assessments of matters of “national environmental significance” is not rigorous, and the best option left to challenge an inadequate state assessment appears to be to proceed against the federal Environment Minister when the assessment is accepted as the basis of Commonwealth approval.
  • It is not clear that ESD and its implicit principles, such as the precautionary principle, are determinative of all decisions within the system.
  • The Victorian EIA system contains no concept of ecologically sustainable development and its implicit principles, such as the precautionary principle, and possibilities for judicial review are extremely limited beside the federal system.
  • Drawing distinctions between issues relevant to a matter of “national environmental significance” and other impacts of the project, which are left to the states to assess according to their own systems, will lead to interesting days and weeks in the Federal Court.

The opportunity has been missed to produce a comprehensive Federal Environmental Code embracing pollution control and the National Pollutant Inventory (see “Further reference”, below), control of ozone-depleting substances and trade in hazardous waste. For an extensive critique, see the Environment Defenders Office (EDO) website (see “Further references”, below).

In conclusion, the revision of the federal EIA system is welcome, but it cannot be more than one aspect of the second wave of effective environmental law that Australia needs, or perhaps more accurately, that the future generations of Australians need now.

Victoria

The EIA process in Victoria is closely linked to planning. Environmental impact assessments may be required in Victoria under the EE Act and the Ministerial Guidelines for Assessment of Environmental Effects (made under s 10 of the EE Act), published by the DSE, June 2006. Amendments to the EE Act and the new Guidelines came into effect on 30 June 2006. The Guidelines can be viewed and downloaded from Department of Transport, Planning and Local Infrastructure (DTPLI).website located at www.dtpli.vic.gov.au (go to “Planning” then “Environment Assessment”).

Overview of process

The essential steps in Victorian EIA are as follows.

  1. The Minister for Planning decides to require preparation of an Environmental Effects Statement (EES) and publishes an Order to that effect in the Government Gazette.
  2.  
    1. An EES Consultative Committee might be formed of representatives of key interests to identify issues and alternatives. Public meetings might be held at this stage; or
    2. “Scoping” of the issues of concern to the community is carried out by the proponent of the development in liaison with the Planning Department, if this has not been done by an EES Consultative Committee. The object of scoping is to receive public submissions on the issues to be dealt with in the assessment and the methods of analysis to be adopted. This stage might also involve public meetings.
  3. An EES is prepared and submitted to the Minister for Planning.
  4. The EES is publicly exhibited and comments are received. The comments are made available to the proponent who then has an opportunity to respond to them.
  5. The EES is assessed by the Planning Ministry in the light of submissions received. This might take the form of a public inquiry conducted by a panel appointed by the minister.
  6. The Planning Minister’s assessment must be taken into account by the proponent of the development. If the recommendations in the assessment are not followed, a written public explanation is expected.
When an EIA is required

Generally, as a matter of law, the EIA of public projects is necessary in Victoria only when it is required by the Minister for Planning. Naturally, political lobbying on the need for an EIA is always a possibility. If the proposal is likely to have significant effects on a matter of “national environmental significance” (such as nationally listed plant or animal species) it must be assessed under the federal EIA system established by the EPBC Act. (See “Commonwealth”, under “Environmental impact assessment”, above.)

For public works, an EES must be prepared if the works have been designated by the Minister for Planning (s 3(1)). Prior to 1994, EIA was mandatory for all proposed public works that could reasonably be expected to have a significant effect on the environment (Environment Effects (Amendment) Act 1994 (Vic)). Now an EIA is not required unless the minister is satisfied that the project could have a significant effect on the environment and publishes an Order to that effect in the Government Gazette (s 3(2)).

Apart from governmental public projects, the decision-making processes in which EIA might be expected include the following:

  1. amendment of a planning scheme. Here, the same inquiry panel will perform both functions: consideration of submissions on the proposed rezoning (see “Planning schemes”, above) and on the EES;
  2. applications for planning permits (see “Planning permits”, above);
  3. works approval licensing of projects that will lead to new discharges of waste to the environment under the EPA (see “Pollution”, below);
  4. the Environment Protection Authority Victoria EPA Victoria may require ecological impact statements (ss 49AF, AG EPA) where a declaration has been made that an industry has the potential to have a significant impact on the environment (s 49AD);
  5. mineral resources development licensing. The Mineral Resources (Sustainable Development) Act 1990 (Vic) (“MRDA”) provides that planning permission is not required if EIA is completed. The state planning scheme provides bare requirements for planning permits for mining projects (ss 41–42 MRDA); and
  6. licences for proposed pipelines: Pipelines Act 2005 (Vic).

The impacts of developments considered in these decision-making processes are to be analysed similarly to public works.

Other decision-makers who have to make a decision that could significantly affect the environment, including other ministers and VCAT, may seek advice from the Minister for Planning on whether an EIA is required (s 8 EE Act). On the conventional view EIA is necessary under this provision only if the Minister for Planning advises that it is, but that is not the only view.

If the proposal is likely to have significant effects on a matter of national environmental significance, it must be assessed under the federal system established by the EPBC Act (see “Commonwealth”, under “Environmental Impact Assessment”, above).

Section 12(2)(b) of the PEA requires that a planning authority must take into account significant environmental effects when preparing a planning scheme or an amendment to one. Often the environmental effects of planning scheme amendments can be adequately evaluated without full EIA. However, with the ANZECC Guidelines (www.environment.gov.au/about/councils/anzecc/index.html) for determining when EIA is required in mind, it might be that in some situations only preparation of an EES can sufficiently inform this process.

EIA on the US model is generally considered a procedural issue, so failure to conduct EIA while preparing a planning scheme amendment, or failure of a panel to require it, could well be grounds for an appeal to VCAT on legal or procedural defects under section 39 of the PEA.

This is yet untested. Objectors using this argument should state in their submissions against a planning scheme amendment that EIA should be undertaken. They should also raise the point at the panel hearing. If they wish to take the matter to VCAT, they should seek legal advice (see “Legal advice”, below). As noted above, a significant impact on a matter of “national environmental significance” will require EIA under the federal scheme (EPBC Act).

Similarly, section 60(1)(a)(iii) of the PEA requires that a responsible authority must take into account significant environmental effects when deciding a planning permit application. Again, in some situations, it might be that only EIA can adequately evaluate this. This also seems to be an ample “self-starting” power for a responsible authority to require an applicant to submit an EES without reference to the minister, and likewise for VCAT to require one on appeal. The ANZECC Guidelines could also be relevant at this point.

Earlier cases where the AAT (or its predecessor, the Planning Appeals Board) had declined to require EIA were based on principles that were current before the PEA was enacted, or did not consider the “self-starting” potential of section 60(1)(e) PEA. Objectors wishing to take advantage of this argument should state in their objections to the permit that EIA should be required. When appealing to VCAT, it should be stated as a ground of appeal. Because this is relatively untested, other grounds of appeal should also be stated. Ideally, objectors should obtain legal advice (see “Legal advice”, below). With respect to a permit application too, if a significant impact on a matter of “national environmental significance” is likely, then EIA under the federal scheme will be required: EPBC Act.

The Guidelines made under the EE Act set out the type of activities for which an EIA will be required. The legal status of the Guidelines is uncertain. They might be enforceable under general principles of administrative law requiring consistent application of policy.

The Victorian EE Act places no express obligation on ministers to take into account effects on the environment. However, if a minister fails to do so where it is clearly required in the circumstances, the minister’s decision could be open to challenge under administrative law principles, especially in view of the objectives of planning set out in the PEA (s 4).

Public participation in the EIA process also appears to be at the discretion of the Minister for Planning, rather than a statutory obligation. The Minister for Planning decides whether to invite comments on any works or proposed works, and from whom participation is to be invited (s 9(2) EE Act). The minister may appoint a panel to conduct public hearings. Clearly, the capacity of the legal structure (and the parameters of the Victorian EIA system) to deliver assessment of a reliable and enforceable quality pales beside the promise of the federal system.

The effect of an EIA

The Minister for Planning provides an assessment after receiving the EES, departmental recommendations and, where relevant, the findings of a panel. The assessment report may incorporate the findings of a panel, and is made available to the public.

No works are allowed to commence until the minister’s assessment has been “considered” (s 8C). This means that each minister or any other decision-maker concerned with a proposal to which the EE Act applies must consider the advice of the Minister for Planning, which is contained in the assessment report.

If the recommendations in the assessment report are not adopted, the decision-maker must provide the Minister for Planning with “a written statement showing the reasons for not adopting the recommendations. That statement will be treated as a public document”.

Quality of EIA

Once it has been decided to undertake EIA, the standard of the inquiry and report becomes very important. It might be, for example, that a decision to proceed with a project is invalid if the EIS or EES could not be considered the kind of document that the law requires.

The Commonwealth EPBC Act, EPBC Regulations and the Victorian Guidelines set out what must be done, and directions of this nature have been enforced by the Federal Court in the past. In addition, guiding principles of EIA have been developed by courts in the 70 or so countries that have adopted the US model. These principles may be summarised as follows.

  1. The inquiry is not restricted to “site-specific” environmental effects.
  2. The inquiry must examine alternative courses of action and their environmental significance, even if the proponent does not have the power to implement these alternatives.
  3. Greater plans must be assessed in addition to the sequence of single phases that execute them.
  4. Projects must not be segmented in ways that disguise the scale of environmental impact and detract from the viability of alternatives to the total project.
  5. Projects must be assessed in the light of technologies available in the time-frame of the project’s construction.
  6. Alternative courses of action include the option of doing nothing.
  7. The inquiry must be a real inquiry and not merely dispose of alternatives in favour of a decision that has already been reached.
  8. Environmental effects are not to be disregarded merely because they are difficult to identify or quantify.
  9. The inquiry must take a “hard look” at the environmental consequences of the project.
  10. Findings must be presented in clear language and methodologies explained.

An EIA process that does not meet these standards might well be considered invalid.

Environmental Impact Assessment (EIA) :: Last updated: Sun Jun 30th 2013