A combined 2,243 days on the waiting list

Less than eight weeks into his new role as environment minister, Reece Whitby has quickly started tackling the backlog of approvals in his portfolio, with six projects given the go-ahead early this month.

Not long before, Business News had approached the minister’s office about the length of time between the Environmental Protection Authority recommending projects for approval and final ministerial sign-off.

Fifteen projects that had been recommended for approval by the EPA had then been under ministerial consideration for a combined total of 2,243 days.

That followed about 12,700 days of review in total by the EPA.

The projects in the sample were the 15 most recently approved by the minister’s office before the end of 2021.

They were assessed under section 38 of the Environmental Protection Act, which covers new proposals, meaning the sample does not include applications for amended conditions or changes to project scope.

Mr Whitby was appointed to the environment portfolio just before Christmas 2021, and he has approved projects (not all under section 38) including the Perdaman urea plant on the Burrup and the Byford rail extension.

The longest recent delay was prior to his tenure: Woodside Petroleum’s $16 billion Scarborough gas project, an approval for a 33-kilometre portion of the offshore gas pipeline located within state waters.

That pipeline will be near two others in one of the country’s busiest industrial precincts: the Port of Dampier, which moves about 20 million tonnes of LNG and 130mt of iron ore shipments annually.

The project was given approval by then-minister Amber-Jade Sanderson on August 11, 973 days after it was first referred to the regulator and 583 days since it had received the green light from the EPA.

That extended timeframe included nearly 18 months with the Office of the Appeals Convenor, after the Conservation Council of Western Australia and another party appealed the EPA’s recommendation.

There were five grounds to the appeal, four of which were dismissed, including one about greenhouse gas emissions assessments.

Appeals convenor Emma Gaunt rejected the assertion that the EPA should analyse emissions from the processing of Scarborough gas when reviewing the pipeline, saying the emissions would be assessed through separate approvals for other parts of the project.

The convenor allowed one change, which specifically added a condition for Woodside to limit the impact on marine fauna.

Woodside had devoted 20 pages to marina fauna in one of its initial referral documents, while the appeal decision notes the EPA had not considered impact on marine fauna would be significant, because Woodside had suitable mitigation plans and construction work would be over a short period.

It was a relatively minor change from a lengthy appeals process.

That wasn’t the only battle for Woodside, with a separate approval decision being challenged in court.

Woodside applied under section 45 of the EP Act to amend the initial conditions for the planned second LNG processing train at Pluto to allow the plant to process gas from any gas field.

That was given the green light, but the Conservation Council of Western Australia is challenging the approval in court.

Woodside had been tracking for a 2020 final investment decision on the project but was delayed by the COVID-19 pandemic.

All of this follows years of concern by industry that long approval times could stop new projects and cost the state investment.

Less expeditious decision-making risks the state losing capital to other regions, the argument goes.

The state government has previously said cutting approval times would save $72 million annually for industry and $100 million for government projects.

Train 1 at the Pluto LNG operation. Photo: Woodside

Convened appeals

A series of other projects also experienced substantial delays via the Office of the Appeals Convenor process following EPA recommendations.

The Conservation Council, Urban Bushland Council and Wildflower Society of WA were among those to lodge appeals, while BCI Minerals’ Mardie salt project and Shark Bay Resources’ dredging work both faced appeals from fishing interests.

The concerns ranged from requests for more specific protections for scallops during spawning season, to greenhouse gas emissions.

Mitsui & Co and Beach Energy’s Waitsia gas project attracted appeals from 21 parties, including former premier Carmen Lawrence (also CCWA president), the Lock the Gate Alliance, and CCWA.

One novel appeal was from Mid West Geothermal, which said Waitsia should have used a nearby geothermal project to power electricity at its processing plant.

The appeals convenor noted that Waitsia’s developers had been in discussions with Mid West Geothermal for at least two years about the company’s geothermal project and had not considered it a realistic near-term option. Ms Gaunt said the office received appeals on a large proportion of reports.

“The time for investigating and reporting on these appeals varies considerably based on the number of appellants and the complexity of the issues raised,” she said.

Ms Gaunt said that most appeals were genuinely directed at assessing the adequacy of the EPA’s report and recommendation, while issues unrelated to the rights of appeal, such as economic questions, were not investigated.

A spokesperson for the state government said EPA decisions were regularly appealed, which added to delays.

“The appeals process is, by its nature, very complex and technical and therefore time consuming,” they said.

“The appeals process is a critical, transparent step in providing all stakeholders – including the public – the opportunity to understand and question the recommendations.”

Reece Whitby (top), Amber-Jade Sanderson. Photos: Supplied (top), David Henry

Conservative

Although few business leaders would argue to cut environmental protection standards, decision times, duplication between departments, and the complexity of compliance requirements create frustrations.

One industry source suggested the EPA was adopting a more cautious approach in part to avoid appeals and court challenges.

Many projects also need federal environmental approval, while the state’s Department of Mines, Industry Regulation and Safety has been increasing its interest in environmental outcomes.

Shark Bay Resources manager human resources and commercial, Andrew Bohnen, highlighted duplication as an issue.

“Operating in a World Heritage [zone], we mitigate environmental risk in everything we do and undertake voluntary conservation initiatives that go beyond our regulatory compliance,”

Mr Bohnen told Business News.

He said there was significant engagement with stakeholders for a 16-month approval process for dredging.

“While the approval process for the project was long and costly for the company, we recognise the importance of the process and feel that the EPA’s final assessment was robust and proportionate to the project risks,” Mr Bohnen said.

“However, with both federal and state agencies involved, the process was at times duplicative and could be made more efficient by improving the coordination and consistency between the regulators.”

A report from the federal Department of the Environment in 2014 estimated a cost of more than $400 million nationally every year for projects that needed to go through Commonwealth approvals in addition to state-level review.

The federal government signed an agreement in August 2020 to move to a single point-of-approval system, which was expected to save six months, on average, per project.

Chamber of Minerals and Energy of Western Australia chief executive Paul Everingham said there had been an increasing demand for approvals in WA and that the EPA was assessing more projects than ever.

That was driven by a strong economy with high activity, and because of a lower threshold for assessment, Mr Everingham said.

“However, as we have pointed out on numerous occasions in the past two years, there is still extensive duplication of environmental assessment and approval processes, including crossover by the Department of Mines, Industry Regulation and Safety,” he said.

“Removing this duplication would be a positive step towards reducing the current time frames associated with assessments and approvals.”

The EPA had also increased focus on cultural heritage matters and native title.

“Neither the lowered threshold nor increased activity alone constitutes a problem, but if the EPA is going to be assessing a greater volume of projects, then it needs to be resourced in a way that allows it to complete assessments in a timely manner that allows for certainty for proponents,” Mr Everingham said.

“The current skills shortage being experienced in WA and across Australia would clearly be having an impact on the ability of the EPA to fill necessary roles.”

Plans for the Ellenbrook station. Photo: Metronet

EPA chair Matthew Tonts said approval times depended on complexity, environmental factors under consideration, extent of stakeholder consultation, cumulative impacts, and the time a proponent took to submit information of a rigorous standard.

Professor Tonts said the EPA did not approve projects but merely made a recommendation to the minister, who would make the final decision after consulting with other ministers and considering appeals.

“The ultimate aim of [the assessment process] is to ensure a scientifically rigorous process that is transparent for both the public and the proponent,” he said.

Conservation Council of WA executive director Maggie Wood said the assessment and approval process should not be a rubber stamp or box-ticking exercise.

Instead, it was part of a legal framework to balance the interests of industry against the longand short-term wellbeing of the environment, she said.

“As new proposals become more complex, so too does the environmental approvals process, and the regulators must be appropriately resourced to handle both the volume of applications and the technical nature,”

Ms Wood said. “The environmental approvals process might be quicker if it were better resourced, but it should certainly not be less exhaustive as a result.”

Chamber of Commerce and Industry of Western Australia chief executive Chris Rodwell said the organisation’s members viewed red tape around projects as excessive.

Approvals ought to be managed faster within and across departments, he said. “A particularly acute example right now is the clawback of funds from businesses through environmental ‘cost recovery,” Mr Rodwell said.

“The fees the state government has begun charging businesses for environmental impact assessments are the highest such fees anywhere in the nation.

“For the cost, businesses would rightly expect better regulatory efficiency and transparency, the funds should be tied to the government improving its approach.

“But current approval timeframes … have been getting worse. “CCIWA will be engaged in the planned review of the pricing model, and in processes like StreamlineWA [the state government’s plan to cut red tape].”

As part of this, the government promised $120 million last year to make approvals more efficient and add additional officers.

The program includes improved case management and online approvals.

Professor Tonts said online approvals would improve management of assessments.

In May 2020, under Stephen Dawson as environment minister, the government announced Environment Online, a $28 million approvals portal it promised would reduce project approval times by six to 12 months.

More than a year later, in August 2021, the government awarded the tender for the project to tech company Insight and said it would be rolled out over three years.

The Environment Online move was well received by industry, but there are concerns the rollout is taking longer than expected.

A spokesperson for the state government said it was committed to reducing regulatory burden and to upholding high standards of protection, particularly through StreamlineWA.

“Other streamlining measures include the development of Environment Online and the passing of the Environmental Protection Amendment Act 2020, which contained the most significant reform of WA’s environmental legislation in more than 30 years,” the spokesperson said.

Environment Online would become available for use from the first half of 2022, they said.

“The new platform will also make available a single source of trusted information, reducing the amount of time required to undertake environmental assessments, and improving the transparency, quality and consistency of decision making,” the spokesperson said.

User pays

The government also moved to charge applicants a greater share of the cost for EPA submissions, understood to be about $500,000 per project.

This has reflected a trend towards a user-pays model for businesses using the state government’s services.

“The fees proposed under the WA Environmental Protection Act will be higher than anywhere else in Australia,” CME’s Mr Everingham said.

“As such, CME and its member companies expect the highest level of regulatory service and efficiency, and in particular will look for demonstrated improvement in assessment timeframes.”

The EPA is supported by a secretariat in the Department of Water and Environmental Regulation.

The state’s budget forecast about $21 million would be the cost of services for the EPA, with nearly 100 staff contributing varying support functions.

One touted benefit of the fee-for-service model is that funding levels will rise and fall depending on demand, driven by the number of projects under assessment.