EPBC Act: What’s changing – and why it matters for renewable energy projects
On March 26, 2025, the Parliament of Australia passed the Environment Protection and Biodiversity Conservation Amendment (Reconsiderations) Bill 2025, changing how some environmental decisions can be reviewed under the Environment Protection and Biodiversity Conservation Act 1999 (EPBC Act).
The Bill limits the power of the minister for the environment to reconsider certain past decisions and is intended to provide “certainty and fairness to industry, workers and communities, where industries have already been operating for a significant amount of time.”
It follows requests made to the minister to reconsider decisions on salmon farming in Macquarie Harbour, Tasmania, particularly in relation to the potential impact of this ongoing action on the Maugean skate, an endangered species listed under the EPBC Act.
The amendments are seen as controversial, and already the subject of Federal Court proceedings, in which the Bob Brown Foundation is seeking orders requiring the minister to determine the reconsideration requests, despite the new limitations introduced by the Bill.
Federal Court proceedings, in which the Bob Brown Foundation is seeking orders requiring the minister to determine the reconsideration requests
Reconsideration framework
Under the EPBC Act, the minister must decide whether a proposed action requires approval because it is a controlled action. A controlled action is one that would be prohibited under Part 3 of the EPBC Act (which concerns matters of national environmental significance) if carried out without a controlled action approval issued under Part 9 of the EPBC Act.
When deciding whether a proposed action requires such approval, the minister may decide that the activity is not a controlled action if it is carried out in a particular manner. In other words, a ‘not a controlled action – particular manner’ decision (NCA-PM decision).
Under section 78 of the EPBC Act, the minister can revoke certain decisions made about an action and substitute a new decision if they are satisfied that it is warranted by matters including:
– The availability of substantial new information or a change in circumstances (not foreseen at the time of the first decision) about the impacts that the action has, will have, or is likely to have on a matter of national environmental significance.
– The initial decision determined the action was an NCA-PM, but the action is not being undertaken or will not be undertaken in the manner identified in that decision.
Where an NCA-PM decision is revoked and substituted with a decision that the action is a controlled action, the action needs to stop until a controlled action approval is sought and obtained.
What’s changing – and why it matters for renewable energy projects
The Bill seeks to restrict the Minister’s power to revoke and substitute an NCA-PM decision where:
– The identified manner required the action to be taken in accordance with a management arrangement made, approved or administered by the government of a State or Territory;
– The action is being taken;
– The action has been ongoing or recurring for at least five years.
In effect, this puts a limitation period on the review of NCA-PM decisions. This change may influence how environmental factors are considered in land use planning, especially for projects that have ongoing interactions with the environment where the risk profile may shift if regulatory oversight is restricted beyond the five-year window.
As noted in the second reading speech for the Bill, while the salmon farming example is driving the Bill, it is “potentially not an isolated event.”
Although the Bill does not target a specific industry, it could have important consequences for renewables and other sectors developing regional infrastructure. Any activity that interacts with land containing matters of national environmental significance, whether energy-related, industrial or otherwise, may still trigger federal oversight under the EPBC Act.
For projects involving ongoing or long-term land use, such as battery installations, energy storage, or renewables infrastructure, the relevance of NCA-PM decisions becomes more pronounced. While such decisions are relatively uncommon in the renewables sector, the key consideration is whether the activity has diverged from what was originally approved, which could invite scrutiny under section 78.
Crucially, the Bill may prevent reconsideration even when an activity is no longer being undertaken as initially described
Crucially, the Bill may prevent reconsideration even when an activity is no longer being undertaken as initially described – an issue currently before the Federal Court. The outcome, which will hinge on how the five-year limitation is interpreted, could shape how investors and state agencies approach the durability and long-term risk of federal environmental approvals.
Scope for further reforms to the EPBC Act
In October 2020, Professor Graeme Samuel AC completed the second independent review of the EPBC Act and published a final report, the Samuel Report, which concluded that the EPBC Act is “outdated and requires fundamental reform”.
Relevantly, the Samuel Report stated:
“The current approach lacks a clear articulation of environmental outcomes and a mechanism for evaluating and reporting on the effectiveness of the EPBC Act. The lack of an overarching framework to support evidenced-based and adaptive management, and to optimise monitoring and reporting effort remains a key shortcoming that needs to be addressed.”
The changes made by the Bill do not seek to address these observations. Rather, by narrowing the scope for reconsidering NCA-PM decisions, the Bill may limit the opportunity for adaptive management of longer-term impacts and the consideration of emerging information around cumulative impacts of ongoing activities.
The explanatory memorandum to the Bill acknowledges that “better information, along with the increasingly dynamic nature of the environment increases the likelihood that actions originally determined to be unlikely to have a significant impact on a protected matter under the EPBC Act could in future meet the threshold for reconsideration.”
Implications for due diligence and investment strategy
While the government’s Nature Positive Plan, published in December 2022, sets out a pathway to amend the EPBC Act in light of the Samuel Report, progress on proposed reforms has been deferred.
This Bill highlights the importance of environmental due diligence at the outset of a project. Investors may need to assess not only whether approvals are in place, but also how those approvals might interact with the evolving environmental landscape, particularly if opportunities for future review are now limited.
For ongoing actions under an NCA-PM decision, the passing of the Bill may mean that the decision is no longer challengeable. For anyone with an interest in an ongoing action that has commenced within the last five years under an NCA-PM decision, the passing of the Bill may put a deadline on requests to reconsider the NCA-PM decision.
For the renewables sector, where land use impacts can be ongoing and projects can evolve over time, early due diligence will be critical. Ensuring that actions are carried out in accordance with the approved manner and that any changes are clearly documented may offer the best protection under this more rigid framework.
Katharine Huxley is a special counsel at Holding Redlich