Benchmarking leading practice environmental management regulations

Article published in the Regulator | Issue 2: 2019

A number of senior NOPSEMA staff recently attended the National Environmental Law Association (NELA) conference in Canberra titled ‘Twenty years of the Environment Protection Biodiversity Conservation Act (EPBC Act), looking back, looking forward’. The purpose of the conference was to discuss how the EPBC Act is currently operating, and identify options for improvements to the Act in the lead up to its 20-year review, which is due to commence later this year. 

The conference provided some important insights on leading practice environmental management regulation. One of the most significant outcomes of the conference was recognition that environmental management regulatory regimes should be objective-based and allow for independent science based decision making.  These elements, as well as other strengths identified at the conference, form the basis of the internationally recognised regulatory framework for offshore energy projects administered by NOPSEMA. The regulatory framework and governance arrangements under which NOPSEMA operates warrant detailed examination when considering options for potential enhancements to the EPBC Act regime that may flow from the proposed review.

In addition to objective based regulation and independent science based decision making a number of other key themes highlighting potential improvements to the EPBC Act framework consistently featured in presentations delivered at the conference by environmental law professionals, scientists and regulators. These included the importance of appropriately funded, technically competent regulators and of ensuring accountability through active compliance monitoring and enforcement.

As the independent expert regulator of environmental management for offshore energy projects in Australia, NOPSEMA administers an objective-based regulatory regime that focuses on the scientific and technical merits of proposed activities. Importantly, the regime explicitly requires detailed consideration of requirements under the EPBC Act to ensure that matters of national environmental significance are appropriately protected. 

One of the key principles underpinning NOPSEMA’s objective-based regime is that responsibility for ensuring the protection of the environment lies with those who create the risks. That is because these parties have the knowledge, decision-making authority, on the ground control and resources to ensure that the risks they create are effectively managed. This type of regime sets high level requirements that must be achieved, but does not generally prescribe how those requirements must be met.

Through the environment plan process, titleholders are required to make a case, supported by evidence, that they will reduce the environmental impacts and risks of their activities to as low as reasonably practicable and acceptable levels.

Environment plans are assessed by teams of highly qualified and experienced environmental scientists who make a recommendation to an independent decision maker on whether the team considers that the environment plan meets regulatory requirements. The decision maker considers this recommendation, including any scientific or technical information not contained in the environment plan that may be relevant to the decision, and determines whether they are reasonably satisfied that the plan meets the requirements of the regulations.

Once an environment plan is accepted, NOPSEMA inspectors undertake regular compliance monitoring and, where required, enforcement activities to hold titleholders to account in delivering strong environmental management outcomes.   

The ultimate goal of NOPSEMA’s regulatory activities is for Australia to have safe and environmentally responsible offshore energy industries. Objective-based regulations coupled with independent science-based decision making and regular compliance monitoring allows NOPSEMA to pursue this goal through reinforcing a culture of continuous improvement in environmental performance of offshore energy industries.

Further information about how NOPSEMA regulates under an objective-based regime can be found on NOPSEMA’s website at nopsema.gov.au.