Amendments to Australia's Environment Protection and Biodiversity Conservation Act 1999 and Their Impacts on Climate Change

Overview

Australia's Environment Protection Reform Act 2025 ("Reform Act") and National Environmental Protection Agency Act 2025 ("NEPA Act") make up part of a seven-bill package to amend the Environment Protection and Biodiversity Conservation Act 1999 ("EPBC Act").

The Reform Act establishes greenhouse gas ("GHG") emissions requirements for the assessment of actions that require approval under the EPBC Act. The NEPA Act establishes the National Environmental Protection Agency ("NEPA"), which has taken over the administration of various federal environmental and climate change-related legislation.

Introduction

The EPBC Act was originally introduced to clarify the Australian federal government's role in protecting matters considered to be of national environmental importance, in line with Australia's international obligations. It did this by requiring any project or development likely to have a significant impact on "Matters of National Environmental Significance" ("MNES") to obtain federal approval before proceeding.

In an independent statutory review conducted by Professor Graeme Samuel AC and delivered on October 30, 2020, the EPBC Act was deemed not fit for purpose and in need of an "overhaul." Recommendations were subsequently made to address failures to adequately protect the environment. Building on these recommendations, the EPBC Act has been modified by a package of seven legislative instruments, including the Reform Act and NEPA Act, passed on November 28, 2025. This article focuses on the Reform Act and NEPA Act, as these make the most significant changes to the EPBC Act, particularly when considering how the amendments seek to address issues associated with climate change.

National Environmental Protection Agency

Having commenced operations on July 1, 2026, NEPA now serves as the federal environmental regulator and administers various federal compliance, assurance, and enforcement functions previously performed by the Department of Climate Change, Energy, the Environment and Water.

Relevantly, NEPA is also responsible for various climate change-related acts, such as the Product Emissions Standards Act 2017 (Cth) and the Ozone Protection and Synthetic Greenhouse Gas Management Act 1989 (Cth). It does not replace the jurisdiction of the state environmental regulators.

NEPA has the authority to:

1. Make certain project approval decisions as a delegate of the Minister for the Environment and Water ("Minister");
2. Issue environment protection orders ("EPOs");
3. Conduct environmental assessments and audits to ensure compliance with the EPBC Act; and
4. Enforce penalties for environmental breaches.

In relation to the issuing of EPOs, this can include orders to enforce strict emissions disclosures and regulate synthetic GHG emissions, including where such emissions are noncompliant with the requirements in the Ozone Protection and Synthetic Greenhouse Gas Management Act 1989 (Cth).

Although it is an independent agency, the Minister may give the CEO of NEPA—who holds the leading role at NEPA and is responsible for ensuring its daily administrative operations—a statement of the Minister's expectations for NEPA, and the CEO must respond with a statement of intent. No such statement has yet been released.

GHG Disclosure During Assessment

The EPBC Act requires a "controlled action" to be assessed by the Minister. Subject to the findings of this assessment, the Minister may either approve or refuse the controlled action. If it is refused, it cannot be undertaken. If it is undertaken without approval, strict penalties apply.

A "controlled action" is defined under section 75 of the EPBC Act as a proposed activity or project that is likely to have a significant impact on an MNES. It must be assessed under section 136 of the EPBC Act with regard to economic and social matters, and the principles of ecologically sustainable development (among other requirements).

Upon being designated a "controlled action," an action must be referred to the Minister, who may approve the proposed action via an assessment. Under the preexisting rules, the Minister could use one of the various approaches listed under section 87 of the EPBC Act to carry out this assessment. Following the passing of the Reform Act, each of these pathways/assessment steps now requires a specific disclosure obligation regarding GHG emissions, summarized as follows:

1. Assessment Report: GHG emissions information must be included in the documents provided to the public for comment. The Minister must be given the GHG emissions information together with public comments or a statement that no comments were received (see: s 203A of the Reform Act).
2. Streamlined Assessment: A "streamlined assessment" is a more expedited assessment process than the processes in (a) and (c), and is only available for certain controlled actions/prospective projects. GHG emissions information must have been provided before the Minister can select this pathway. If not included in the original referral, it must be published as soon as practicable (see: ss 194-195 of the Reform Act).
3. Environmental Impact Statement: GHG emissions information must be included in the draft Environmental Impact Statement, and the Minister may only approve publication of the draft Environmental Impact Statement if satisfied it includes the information (see: s 207 of the Reform Act).
4. Public Inquiry: GHG emissions information must be given to the Minister before the reporting deadline, and the commission must include it in its report to the Minister (see: s 213 of the Reform Act).

Additional Emissions Reporting Provisions

Under Section 191 of the Reform Act (which inserts a new provision into the EPBC Act at the end of Division 2, Part 8), there are also new GHG disclosure measures which apply to "controlled actions" undergoing assessment. These disclosure requirements apply regardless of the nature of the controlled action.

Under this section, the following information must be provided during the assessment of a controlled action:

1. A "reasonable estimate" of the scope 1 GHG emissions likely to be released by the action, or a statement that the likely scope 1 GHG emissions of an action are below a prescribed amount;
2. A reasonable estimate of the likely amount of scope 2 GHG emissions of the action, or a statement that the likely scope 2 GHG emissions of an action are below a prescribed amount; and
3. If the proponent provided a reasonable estimate of the likely amount of GHG emissions above the prescribed amount: (i) the strategies and measures the designated proponent will implement to manage those emissions; and (ii) how those strategies and measures are consistent with the laws and relevant government policies of the Commonwealth.

The regulations will prescribe a threshold of carbon emissions below which "reasonable estimates" of GHG emissions are not required. If this is so, a statement to this effect will suffice in the assessment paperwork.

No "Climate Trigger"

There was lengthy debate associated with the prospect of introducing a "climate trigger" provision into the EPBC Act, inspired by the "water trigger" provision already contained in Sections 24D and 24E of the EPBC Act. The water trigger is "triggered" when certain coal or gas developments are likely to have "significant impact on water resources," requiring further approvals. A "climate trigger" would have involved a similar regime for projects projected to have significant GHG emissions.

On one side, Senator Larissa Waters argued in favor of the climate trigger, saying that, in its absence, "the climate impacts of any large development—whether it's a fossil fuel development or any other development—are simply not considered because they are not considered a matter of national environmental significance."

Conversely, Senator Matthew Canavan argued that "[i]t is completely [expletive] to sit here and say that stopping one project is going to have a material impact on the world's climate or weather. [The climate trigger] should be rejected on that basis alone."

The climate trigger was ultimately not included in the Reform Act.