WA Environment Minister Reece Whitby will scrap at least 21 existing and under-appeal greenhouse gas management plans devised by the Environmental Protection Authority as the state prepares to handball CO₂ reduction to the Commonwealth.
However, Whitby’s ability to do this may not be a simple task with one of the state’s top environment and resources law experts suggesting there could be a legal gauntlet to run before the plans can be dumped.
Under the new arrangement, WA’s greenhouse gas plans for existing projects would be scrapped. Credit: Bloomberg
The Commonwealth’s emissions safeguard mechanism is now the go-to assessment apparatus for major polluting projects in WA after Whitby stripped the EPA of its power under a new greenhouse gas policy written up in response to “constitutional legal advice” and aimed at removing green tape duplication.
Two projects under appeal – including Woodside’s North West Shelf expansion – and 19 approved projects with greenhouse gas management plans cover about 310 million tonnes of estimated CO2 emissions from WA industry over the next 25 years.
Under the old state policy, businesses were encouraged to demonstrate how they planned to reduce emissions to net zero by 2050 and report on their progress publicly every five years.
The safeguard mechanism also sets a net zero by 2050 target but allows much freer use of the purchase of carbon credits if they don’t meet their target.
In a public post on his LinkedIn last week, UWA resources and environmental law professor Alex Gardner said a policy announcement could not change the legally binding conditions of current approvals.
Gardner also questioned the constitutional advice the state was acting on given there were provisions in the safeguard legislation that expressly allowed for state laws to operate concurrently with it.
He said even if greenhouse gas management conditions under WA’s regime required more of companies than the Commonwealth laws – like reporting emissions reduction progress every five years – that could not be considered inconsistent with the safeguard mechanism.
“There would just be two sets of requirements to meet, with some administrative overlap – inconvenient but, without more evidence, not constitutionally invalid,” he said.
Whitby will use Section 46 of the Environment Protection Act to reassess existing approvals and remove the greenhouse gas management plans.
Gardner pointed out that the section required the EPA itself to prepare a new report on the conditions identified for amendment before the minister could act.
Whitby’s office said it could not put a timeframe on when the plans would be scrapped.
A spokesman said the government’s expectation was that emissions reduction under the guise of the safeguard mechanism would result in the same, if not stronger, action on emissions.
“This policy change is focused on removing duplication that doesn’t deliver any additional environmental benefit,” he said.
“It does not change our commitment to working with all sectors of the economy to achieve net zero emissions by 2050, which we are committed to codifying in legislation via our important Climate Change Bill.”
The spokesman would not divulge details of the constitutional legal advice provided to Whitby by the Solicitor General as it was subject to legal professional privilege.
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