Why Australia’s environmental law does not protect the climate

Australia’s principal environmental law does not directly address climate protection. Why is this the case and what needs to change?

Australia’s principal environmental law, the Environment Protection and Biodiversity Conservation Act 1999 (Cth) (EPBC Act), is set to undergo ‘fundamental reform’ in 2024 (DCCEEW 2022). The 25-year-old legislation provides the key federal mechanism for assessing and approving projects to ensure they do not cause unacceptable environmental impacts. But the EPBC Act’s provisions ignore one of the greatest challenges to national environmental protection, namely, climate change.

There is a strong case for reform of the EPBC Act to ensure that it better protects our environment and nature from the effects of climate change.

This discussion paper explores:

Why the EPBC Act does not directly address climate change

The limitations of other federal climate laws to provide an avenue for assessing the climate impact of major greenhouse gas emitting projects, like coal mines

Litigation that has been brought attempting to extend the EPBC Act to cover the climate impacts of greenhouse gas-intensive projects and the reasons for its limited success in the courts to date

The case for reform of the EPBC Act and the reform options that are currently being canvassed to provide better climate protection under Australia’s main environmental law.

The discussion paper is based on an expert opinion prepared by Professor Peel for the Climate Council: Gaps in the Environment Protection and Biodiversity Conservation Act and other federal laws for protection of the climate (October 2023).