Federal Environment Minister Greg Hunt’s re-approval of the Adani Carmichael mine project contains a number of revised ‘standard conditions’ that appear weaker than his last approval, giving an increased risk of impacts on matters of national environmental significance. Read EDO Qld's findings.
EDO Qld solicitors found Minister Hunt’s re-approval of the project on 14 October 2015 under the Environment Protection Biodiversity Conservation Act 1999 (EPBC Act) contains a number of new conditions compared to the previous, invalid approval dated 24 July 2014.
These include conditions 33 to 33D, which deal with variations to management plans – part of the ‘standard conditions’ for such approvals.
The EPBC Act defines ‘action management plans’ as: “in relation to an action, means a plan for managing the impacts of the action on a matter protected by a provision of Part 3, such as a plan for conserving habitat of a species”.
The approval requires a number of such plans to be prepared and approved by the Minister before commencing work on certain aspects the proposal: see conditions 3, 5, 9, 20, 25 and 27, which require:
- Groundwater management and monitoring plan;
- Matters of National Environmental Significance plan/s;
- Biodiversity Offset Strategy and Great Artesian Basin Offset Strategy;
- 3D Seismic Survey Management Plan;
- Great Artesian Basin Springs Research Plan; and
- Rewan Formation Connectivity Research Plan.
Section 143A of the EPBC Act allows the holder of an approval to formally apply to the Minister for any variation to such plans.
Condition 33 of the previous, invalid approval given by Minister Hunt (24 July 2014) echoed s.143A by requiring that Adani ‘must’ seek the Minister’s approval for any variation to such plans, and the Minister could only approve variations that “would result in an equivalent or improved environmental outcome over time”.
However, condition 33 of the new approval allows Adani to unilaterally vary such plans, and act on those variations, without the Minister’s approval where a variation “would not be likely to have a new or increased impact”.
In other words, Adani is allowed under new condition 33 to make that determination itself.
Adani simply needs to notify the Minister of a variation and keep a record of the rationale for the variation.
However, condition 33B prohibits such variations to be made to the offset strategies for biodiversity and the Great Artesian Basin (required by Condition 9).
Not only does this new condition 33 allow Adani to self-assess the effects of a variation, but it both reverses the focus of, and lowers the standard for, a variation – i.e. from ‘would result’ in the same or improved outcome, to ‘unlikely’ to have a new or increased impact.
For example, the new conditions allow changes to plans that will ‘possibly’ lead to a new or increased impact, whereas this would have breached the old conditions.
The action management plans for the Project are extensive and are aimed at addressing a number of issues, including:
- various measures to mitigate and manage impacts on MNES under conditions 6(d), 20(b)-(c) – these aspects of the plans could result in new or increased impacts on MNES and require Adani’s judgement on whether this is “likely”;
- further research to determine what are the likely impacts on various MNES, such as condition 25(e) that aims to determine the source aquifer for the Doongmabulla Springs Complex – a fundamental question in terms of the impact of the project;
- a number of administrative issues such as compliance reporting (condition 6(h)) and timeframes for research and reporting (25(d)) – Adani can change these aspects of approved plans to reduce or delay the burden of compliance reporting, while potentially undermining the efficacy of the plans.
Condition 33C does give the Minister a veto power on any variation that Adani has self-assessed, if the Minister is satisfied the variation would be likely to have a new or increased impact. In that case, it appears that Adani would need to then formally apply for the variation under s.143A EPBC Act.
Without this government oversight, these changes appear to increase the risk of impacts on matters of national environmental significance.
The problem is compounded by uncertainty around the timing requirements for publication of any plans varied by Adani, given that condition 36 only requires a timeframe (one month) to publish plans as approved by the Minister.
Therefore, the public may not be made aware of, or be at disadvantage in finding out about, any plan variations.
Under condition 34, the Minister retains the ability to unilaterally require variations to plans if he “believes that it is necessary or convenient” better protection of the relevant matters of national environmental significance that will be impacted on.
This self-assessment approach to variations to management plans is not unique to the new Carmichael approval.
However, from a review of recent EPBC Act approvals it appears to be a relatively new approach, albeit fairly common, in a number of approvals since September 2015. It also does not seem to be reflected in the Department’s assessment manual or other guidance documents.
For other examples using this approach see:
But not used in, for example –
The Department has indicated that this approach is to improve administrative efficiency relating to minor, low-risk and/or clerical changes to management plans. However, it may not have adequately considered the issues above that arise from such an approach.