Environment Protection and Biodiversity Conservation Act 1999 (EPBC Act)
Definition: The Environment Protection and Biodiversity Conservation Act 1999 (EPBC Act) is Australia’s principal piece of federal environmental legislation. It provides a national framework for the protection of the environment and the conservation of biodiversity, and establishes a system of assessment and approval for actions that are likely to have a significant impact on matters of national environmental significance (MNES). For major energy and infrastructure projects, the EPBC Act represents the key federal regulatory gateway that must be navigated alongside any state or territory approvals process.
Why Does the EPBC Act Exist?
The EPBC Act was introduced to give the Australian Government a clear and consistent role in protecting environmental values that transcend state and territory boundaries. Before the EPBC Act, federal environmental oversight was fragmented across multiple pieces of legislation, making it difficult to apply a coherent national standard to the assessment of major projects.
The Act is built around a fundamental principle: that the Commonwealth should focus its regulatory attention on matters where it has a genuine national interest — particularly the protection of biodiversity, World Heritage values, and internationally significant ecosystems — while leaving day-to-day land use and development regulation to the states and territories.
What are Matters of National Environmental Significance (MNES)?
The EPBC Act protects nine categories of MNES. Any action likely to have a significant impact on one or more of these triggers requires referral to the Australian Government for assessment and approval:
- Listed threatened species and ecological communities — species and communities assessed as extinct, critically endangered, endangered, or vulnerable under the EPBC Act
- Listed migratory species — species protected under international agreements such as the Japan-Australia Migratory Bird Agreement (JAMBA) and China-Australia Migratory Bird Agreement (CAMBA)
- Ramsar wetlands of international importance — wetlands listed under the Ramsar Convention
- World Heritage properties — areas listed on the UNESCO World Heritage List, such as the Great Barrier Reef and Kakadu National Park
- National Heritage places — places of outstanding heritage value to the Australian nation
- Commonwealth marine areas — waters beyond state jurisdiction
- Nuclear actions — including uranium mining and nuclear facilities
- Water resources — in relation to coal seam gas and large coal mining developments
- The Great Barrier Reef Marine Park — a specific protected area trigger
For energy infrastructure projects — including transmission lines, wind farms, solar farms, and pipelines — the most commonly triggered MNES are listed threatened species and ecological communities and listed migratory species, given the large land footprints and vegetation clearing that such projects typically involve.
The EPBC Act Approvals Process
The EPBC Act establishes a clear sequence of regulatory steps for actions that may trigger MNES:
Step 1 — Self-Assessment and Referral The proponent assesses whether their proposed action is likely to have a significant impact on MNES. If there is any reasonable possibility of a significant impact, the proponent must refer the action to DCCEEW. Referral is also available on a voluntary basis where a proponent wants certainty about whether approval is required.
Step 2 — Controlled Action Decision DCCEEW assesses the referral and makes one of three decisions:
- Controlled action — the action is likely to have a significant impact on MNES and requires federal assessment and approval before it can proceed
- Controlled action — particular manner — the action is only a controlled action if not carried out in a specified way
- Not a controlled action — the action does not require federal approval (though this can be reconsidered if new information emerges)
Step 3 — Assessment If the action is a controlled action, DCCEEW determines the most appropriate method of assessment. Options include:
- Accredited assessment — using a state or territory assessment process (such as a Queensland EIS) that has been accredited by the Commonwealth
- Preliminary documentation — a relatively streamlined assessment for lower-risk actions
- Public environment report (PER) — a public assessment document for more complex actions
- Environmental impact statement (EIS) — a comprehensive federal assessment for the most significant actions
- Public inquiry — reserved for the most complex or contentious matters
Step 4 — Approval Decision The federal Minister (on advice from DCCEEW) decides whether to approve the controlled action, approve it subject to conditions, or refuse it. Approval conditions are legally binding and must be complied with throughout the life of the project.
Step 5 — Compliance and Monitoring Approved projects must comply with their approval conditions. DCCEEW monitors compliance and can take enforcement action — including prosecution and injunctions — against proponents who breach their conditions.
EPBC Act and the State/Territory Relationship
The EPBC Act operates alongside — not instead of — state and territory environmental laws. This means that for major projects, proponents must typically obtain both:
- State approval — such as a Coordinator-General’s evaluation report in Queensland, or a planning approval in other states
- Federal EPBC approval — if the project is a controlled action
The two processes can run concurrently (and should, to minimise delays), but they are ultimately independent decisions made by separate authorities. A project approved at the state level is not automatically approved federally, and vice versa.
To reduce duplication, the Commonwealth and states have entered into bilateral agreements that can allow a single assessment process to satisfy both state and federal requirements. However, the federal Minister always retains the final approval decision under the EPBC Act.
The EPBC Act Under Review — Nature Positive Reforms
The EPBC Act has been the subject of significant policy debate in recent years. An independent review completed in 2020 (the Samuel Review) found that the Act was not effectively protecting Australia’s environment and recommended fundamental reform.
The Australian Government has since been developing a Nature Positive legislative reform package, which proposes to replace the EPBC Act with new laws focused on:
- A stronger, outcomes-based approach to environmental protection
- A new independent environmental protection agency (EPA)
- National environmental standards
- Better integration with state and territory processes
- Faster, more certain assessment timelines for proponents
These reforms, if enacted, will significantly change the federal approvals landscape for energy and infrastructure projects. Energy developers and planners should monitor the progress of Nature Positive legislation closely.
Real-World Example: CopperString 2032
The EPBC Act was a central element of the CopperString 2032 approvals process:
- May 2019 — The federal delegate determined that the CopperString Transmission Line Project (EPBC 2019/8416) was a controlled action, triggering the requirement for federal assessment and approval
- The project’s state EIS process — managed by the Coordinator-General — was used as the primary assessment vehicle, reflecting the accreditation arrangements between the Queensland and Commonwealth governments
- November 2022 — The federal Minister’s delegate approved the controlled action subject to conditions — completing the federal approvals process approximately two months after the Coordinator-General’s state evaluation report was released in September 2022
The CopperString experience illustrates both the efficiency of running state and federal processes concurrently and the residual lag that can occur when federal approval follows state approval sequentially.
Key Takeaway
The EPBC Act is the federal cornerstone of Australia’s environmental approvals framework. For any energy project with a significant land footprint, vegetation clearing, or proximity to nationally significant ecological or heritage values, the EPBC Act is not optional — it is a mandatory regulatory gate that must be cleared before construction can begin. Understanding the Act’s triggers, processes, and timelines is essential for any developer, planner, or community member engaged in Australia’s energy transition.
Published on energyplanning.com.au | Energy Planning Glossary
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