Current Australian Government legislation relevant to environment protection in offshore petroleum exploration and development and GHG activities includes:
Of particular relevance to the petroleum and greenhouse gas industry are the dual requirements of the Offshore Petroleum and Greenhouse Gas Storage Act 2006 (OPGGSA) and the Environment Protection and Biodiversity Conservation Act 1999 (the EPBC Act).
The OPGGSA provides for the Joint Authority to administer petroleum exploration and production, and for the Australian Government Minister for Resources and Energy to administer GHG activities in Australia's offshore areas (beyond the first three nautical miles of territorial sea) with the National Offshore Petroleum Safety and Environmental Management Authority (NOPSEMA)and the National Offshore Petroleum Titles Administrator (NOPTA) being responsible for the day to day administration of the OPGGSA. These activities are subject to environmental conditions specified in the Offshore Petroleum and Greenhouse Gas Storage (Environment) Regulations 2009 andassociated OPGGSA Directions and conditions. .
The OPGGSA contains a broad requirement for titleholders to operate in accordance with 'good oil-field practice'. Specific environmental provisions relating to work practices essentially require operators to control and prevent the escape of wastes and petroleum. The OPGGSA also requires activities to be carried out in a manner that does not unduly interfere with other stakeholder rights or interests, including the conservation of the resources of the sea and sea-bed.
In some cases, special conditions are applied to an exploration permit area. These conditions can be tailored to suit the unique environment of an area or the multiple marine uses within the area, and take account of sensitive environments in the adjacent state or Northern Territory.
The holder of a petroleum title must maintain adequate insurance against expenses or liabilities arising from activities in the title, including expenses related to clean-up or other remedying of the effects of the escape of petroleum.
Offshore Petroleum and Greenhouse Gas Storage (Environment) Regulations 2009
The Offshore Petroleum and Greenhouse Gas Storage (Environment) Regulations 2009 (the Environment Regulations) which superseded the Petroleum (Submerged Lands) (Management of Environment) Regulations 1999 came into force under the OPGGSA in 2009. They provide an objective-based regime for the management of environmental performance for Australian offshore petroleum exploration and production activities in areas of Australian Government jurisdiction.
Key objectives of the Environment Regulations include:
- encouraging industry to continuously improve its environmental performance
- to adopt best practice to achieve agreed environment protection standards in industry operations
- to ensure operations are carried out in a way that is consistent with the principles of ecologically sustainable development.
A key feature of the Environment Regulations is the requirement that an operator submit an Environment Plan to the National Regulator (NOPSEMA) before commencing any petroleum activity. An accepted Environment Plan will establish the legally binding environment management conditions that must be met by the operator of an offshore petroleum activity.
An Environment Plan must:
- be appropriate for the nature and scale of the activity
- demonstrate that the environmental effects and risks of the activity will be reduced to as low as reasonably practicable
- demonstrate that the environmental effects and risks of the activity will be of an acceptable level
- provide for appropriate environmental performance objectives, environmental performance standards and measurement criteria
- include an appropriate implementation strategy (including an oil spill contingency plan) and monitoring, recording and reporting arrangements.
Review of the Environment Regulations
The Environment Regulations were passed by Parliament in December 2009. When the regulations came into force an associated Regulation Impact Statement committed the Department to a comprehensive review of the regulations after five years. The review conducted during 2004-05 examined the effectiveness and efficiency of the operation of the regulations, identified any problems, considered remedies for the identified problems and examined mechanisms for achieving increased efficiencies.
The review determined that amendments to the Environment Regulations were required and following extensive stakeholder consultation, the Petroleum (Submerged Lands) (Management of Environment) Amendment Regulations 2005 came into force in late 2005. The Regulations have since been superseded by the Offshore Petroleum and Greenhouse Gas Storage (Environment) Regulations 2009 which came into force in late 2009.
Environment Plan Guidelines
Guidance for the Preparation of an Environment Plan has been developed to provide non-mandatory guidance to operators of offshore oil and gas exploration and production facilities for the preparation and submission of an Environment Plan and can be accessed at the National Regulator (NOPSEMA) website
Environment Protection and Biodiversity Conservation Act 1999
The Environment Protection and Biodiversity Conservation Act 1999 (EPBC Act) came into force in 2000 to regulate, among other things, the environmental impact assessment and approval by the Minister for Sustainability, Environment, Water, Population and Communities of proposed actions that will significantly affect a matter of national environmental significance (NES). It replaces the Environment Protection (Impact of Proposals) Act 1974 (EPIP Act) and some related legislation. While the EPBC Act may prevent an action occurring, it does not replace the need for an Environment Plan to be approved under the Environment Regulations before an action can proceed.
The EPBC Act places the onus on the proponent for ensuring an action is either approved or does not affect a matter of NES. The Australian Government can, however, trigger the process itself. If a person is unsure whether approval is required, they may refer the action to the Australian Government Environment Minister for clarification as to whether the action would be a 'controlled action' under the EPBC Act. Previously, the Joint Authority (that is the Commonwealth and the relevant state/territory Minister for Resources) or Designated Authority (the state/territory Minister) triggered the environment impact assessment process under the EPIP Act for petroleum activities in offshore areas.
Matters of NES identified within the EPBC Act that trigger the Australian Government assessment and approvals regime are:
- listed threatened species and ecological communities
- listed migratory species
- Commonwealth marine environment
- listed National Heritage places
- declared World Heritage properties
- declared Ramsar wetlands
- nuclear actions (including uranium mining).
For offshore petroleum and greenhouse gas activities, the first three matters of NES are the most relevant.
Details of the environment legislation and the steps to gain environment approval are provided in the pamphlet An Overview of the Environment Protection and Biodiversity Conservation Act, published in October 1999 by the then Environment Australia. This, and other documents related to the EPBC Act, can be found at the Department of Sustainability, Environment, Water, Population and Communities website.
Permits and Commonwealth Reserve Approvals
A general environmental approval or clearance from matters of National Environment Significance under the Environment Protection and Biodiversity Conservation Act 1999 (EPBC Act) does not cover interactions with cetaceans (that is, whales, dolphins and porpoises).
A Commonwealth permit is required when an action may interfere with a cetacean. Approval is also required if an action is to be undertaken within a Commonwealth Reserve. Most Commonwealth Reserves allow uses that are consistent with the management plan in operation for the reserve, which may include exploration and production of petroleum. Approval requires assessment of the action proposed against the management plan in effect, with a recommendation going to the Governor-General.