Everything you need to know about WA’s proposed new environmental approval laws

According to Premier Roger Cook, the environmental approvals process in WA is “broken”, so his government will legislate an overhaul of how the Environmental Protection Authority functions.

The reforms were announced at a business breakfast this week and were widely welcomed by the mining industry and business sector but have raised concerns among environmental groups.

Wait, what is the EPA?

The Environmental Protection Authority is supposed to look at proposals for developments in WA, such as mining projects or infrastructure like ports, railways and pipelines.

Its job is to examine whether the project could hurt the environment and how badly.

Once it knows enough, the EPA passes the information on to the government and provides independent advice regarding the potential environmental impacts.

But it is ultimately up to the government whether it follows that advice or not after weighing up other considerations, such as the economic and social impacts of the proposals.

What’s going wrong?

According to the government and business sector, the EPA is moving far too slowly with assessments and is scaring off potential investors, including for projects that could help the environment.

Delivering a speech at that breakfast, Mr Cook said industry had been crying out for change.

“Economic opportunity is being placed at risk by a process that has lost touch with the realities of doing business and protecting the environment,” he said.

“Our approvals processes were once considered the best in the world but as the scale, the complexity, and then the volume of projects has increased, our processes have not kept pace.

“We have a situation where projects that could make a difference to the world’s efforts to decarbonise are getting held back.

“It’s a bitter irony that our environmental assessment process is now perceived as the biggest barrier to our ambition to becoming a renewable energy powerhouse.”

According to the WA Chamber of Commerce and Industry, there is up to $318 billion dollars worth of potential investment for projects in the state that are yet to receive environmental approval.

Why is it ‘broken’?

Earlier this year Mr Cook ordered a short review of the EPA that found approvals processes had become “overly complex, time-consuming, and costly”.

The report itself has not been made publicly available but 39 recommendations to come from it have and the government says these recommendations have informed its planned overhaul.

It is broadly accepted the EPA has faced a large workload with limited resources.

The premier said this had created bottlenecks which had been made worse because there were a growing number of proposals coming in that were increasingly complex.

To address bottlenecks, the government has set aside $18 million to fund the rapid deployment of additional resources for “critical approvals”, including the use of external consultants and technical experts.

That $18 million will also support the creation of a new role within the Department of Jobs, Tourism, Science and Innovation that will be given the title “coordinator general”.

The coordinator general will report regularly to cabinet and will be tasked with making sure “priority projects” run smoothly.

The EPA board is also set to be expanded from five members to between seven and nine members.

And an EPA office space in the CBD will be established to bring it physically closer to stakeholders than its existing Joondalup base.

Ministerial power

WA Environment Minister Reece Whitby will be given discretion to designate a proposal as carrying “state significance”.

For those projects, the minister will have the power to direct the EPA to complete its assessment within a specified time frame.

“This is intended for projects or proposals of state significance, the sort of game-changing projects that we don’t want to lose to other states or our international competitors due to regulatory burden, the sort of projects that can create thousands of jobs,” Mr Cook said.

The premier said the new legislation will also allow other types of government assessments and approvals to run at the same time as an environmental assessment, rather than waiting for the EPA.

Statement of intent

The government wants to make sure the EPA is very aware of the state’s priorities.

Built into planned changes to the Environmental Protection Act 1986 will be a requirement for the Environment Minister to issue the EPA with a “statement of intent”, recognising the government’s priorities and policies.

We’re yet to see what exactly a statement of intent would look like and what  the government’s priorities for the EPA could be.

But environmental groups, the Greens and one former chair of the EPA have raised concerns about the impact it could have on the authority’s independence.

Dr Tom Hatton was chair of the EPA from 2014 to 2020 and said it was always useful for the EPA board to be in tune with the minister of the day’s thinking, but a statement of intent risked going too far.

“It seems to be in tension with parts of the act that say, for instance, ‘The minister shall not direct the Chairman’,” he said.

“It could be very, very challenging, particularly in public perception of the independence of the EPA.

“Even if the EPA maintains its independence and maintains its integrity of advice, there’s still that undercurrent, perhaps fair or unfair, that they’ve been compromised.”

Overreach risk dismissed

In September, Dr Hatton revealed he had felt pressured over emissions policy in 2019 during a phone call from then-premier Mark McGowan.

The former chair said he feared the new reforms, especially the statement of intent, risked normalising such interactions.

But Mr Whitby dismissed suggestions there could be conflicts of interest arising from the statement of intent.

“The EPA is about providing independent evidence, but it’s not independent of government, it has to appreciate the priorities and the issues that the government wants to confront and needs to confront,” he said.

“The EPA will continue to have its independence in giving independent advice, but it’ll be very aware of what the state’s priorities are and what it has to make sure it delivers a decision on within a timely manner.”

Environmental ‘lawfare’

Mr Cook said his government would also be focused on putting a stop to environmental “lawfare”.

The premier said environmentalists were increasingly and frustratingly using legislation and appeals processes to slow down new developments and tie up proponents in court.

“Appeals exist to fix errors in the decision-making process, it is not another avenue for stakeholders to re-prosecute their ideological opposition to a project,” Mr Cook said.

“I think most would agree that an international backpacker travelling through Exmouth shouldn’t be able to appeal a proposal in the Pilbara and hold up an assessment.”

Mr Cook also said he believed there was evidence of environmental groups creating division in Aboriginal communities by influencing minority factions to challenge approval processes.

“I think it’s important for all of us when we engage with Aboriginal groups, that we respect their right for self-determination, that we don’t seek to find outliers that can then enhance your particular position.”

Mr Cook said legislating the environmental approvals overhaul would be a priority and he hoped it would be introduced to parliament in the first half of 2024.

Meanwhile, another major environmental endeavour of the state government, the Sectoral Emissions Reduction Strategy for Western Australia, was also published this week.

Greens MP Brad Pettitt said he was not surprised the SERS received notably less fanfare.

“The only target that’s even mentioned in this document is one for 2050, when everyone in this government will be retired and no one will be accountable,” Dr Pettitt said.

Mr Whitby previously defended the lack of a 2030 reduction target in the strategy, insisting there was no need because the EPA was already taking ‘vigorous action’.