Differential emissions licensing: WA Department of Water and Environmental Regulation is open to fundamental structural change.

17 October 2022

The 2020 amendments to the Environmental Protection Act 1986 (WA) (EP Act), involved some minor amendments but not major conceptual change. For environmental regulation under Part V of the EP Act, the merging of works approvals and licences reflected a streamlining improvement, and the change from prescribed premises to prescribed activities appeared largely one of nomenclature.

However, the Department of Water and Environment Regulation’s (Department) current discussion paper: Environmental Regulation Reform: A strategic review of regulatory delivery and fees for industry regulation reveals scope for a complete spring clean and redevelopment of the Part V regulatory system.

Options identified for consideration (and on which submissions are sought) include a potential combination of:

  • regulations (including standard conditions and industry specific requirements);
  • traditional licensing;
  • a revamped policy framework based around Environmental Performance Objectives (similar to the Environmental Protection Authority’s (EPA) environmental factors) and industry specific guidance; and
  • potential approval of transformed waste derived materials as an exemption from waste regulation.

A very complex upfront regulatory structure is potentially achievable. Although such a structure would be more user friendly, at the post approval stage, for regulated entities (including the scope for instruments applying uniform regulation across disparate sites, meaning potential streamlined reporting and resourcing).

It is feasible that the entry stage may require specialist structuring and compliance advice, as well as increased stakeholder engagement. The potential increase in complexity and uncertainty for the public may cause an increase in third party appeals or dissatisfaction.

The discussion paper, notably, also identifies the potential for:

  • dual regulation of greenhouse gas emissions through Part IV (environmental impact assessment) and Part V (environmental regulation) processes; and
  • the withdrawal of Part IV Ministerial Statements under s47A of the Environmental Protection Act 1986 to facilitate sole regulation under Part V.

This expanded scope for the withdrawal of Ministerial Statements was not canvased during the EP Act amendment consultations process. It also appears to reflect a cyclical contraction of the EPA’s role, which was seen in the previous contraction cycle through a more robust interpretation of “significance” (including the giving of greater weight to the decision-making roles of other regulatory agencies).

Finally, the discussion paper identifies the potential for a complete overhaul of the fee framework for Part V regulation, and scope for different fees structures for the application, reporting and auditing phases. It is also feasible that the creation of multiple regulatory pathways will be mirrored in multiple, distinct, fee structures (particularly where separate industry specific regulations and regulations for standard conditions are enacted).

The discussion paper is open for public comment until 5pm (WST) on Tuesday, 13 December 2022, and submissions can be made through the Department’s website here.

This article was written by Mark Etherington, Partner.

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