Environmental Management Processes in the EEZ: An International Perspective
This section of the report summarises a paper entitled Approval Processes in the EEZ: An International Review, prepared for Ministry for the Environment (2004). The review looks at regulatory practices in the EEZs of three countries: Australia, the United States and the United Kingdom. The summary below outlines how each country manages the environmental effects of activities in their EEZs.
Australia
Effects on the environment from activities within Australia's EEZ are controlled through a variety of Acts, all under the umbrella of the Environmental Protection and Biodiversity Conservation Act 1999 (EPBC Act). This Act, which is the Commonwealth's principal environmental statute, is triggered by all activities that may have a 'significant' effect on a matter of national environmental significance. All matters affecting Commonwealth marine areas (outside of three nautical miles, but within the EEZ and continental shelf) are considered to be of national environmental significance. There are also guidelines on activities considered to have a 'significant' effect.
The EPBC Act delegates assessment of activities to a state or territory if a bilateral agreement or declaration is in place. Otherwise, the Commonwealth Environment Minister decides what assessment approach should be taken. There are five possible options:
- assessment on preliminary documentation
- assessment by public environment report
- assessment by environmental impact statement
- assessment by public enquiry
- assessment by accreditation process.
Which option is selected depends on the level of information available and the nature of the impact of the activity. The public can comment on an assessment made through any of these routes. The Commonwealth Environment Minister must make a decision within a specified period.
How does this affect different activities?
Petroleum
Two key Acts control petroleum activity: the Petroleum (Submerged Lands) Act 1967 (PSLA) and the EPBC Act. There are four main environmental approvals that may be required:
- an environment plan under the PSLA (Management of Environment) Regulations 1999 - this is required for every activity
- approval under the EPBC for activities that may affect a matter of national environmental significance - in practice, few mineral or petroleum exploration projects require approval under the EPBC Act
- approval under the EPBC for activities that may interfere with cetaceans - a separate permit is required
- approval under the EPBC for activities within a Commonwealth marine reserve.
The PSLA contains specific provisions to protect the environment, which include a requirement to control and prevent the escape of wastes and petroleum. The Act also requires activities to be carried out in a manner that does not unduly interfere with other rights or interests, including the conservation of the resources of the sea and seabed. The permit holder must also maintain insurance against expenses or liabilities relating to clean up or other remedial work if petroleum should leak from the facilities.
Requirements for approval under the PSLA are:
- actions must be undertaken in a manner that is consistent with the principles of ecologically sustainable development
- permit holders must report any incident arising from activities that are outside the parameters of environmental performance standards in the environmental management plan
- regulations are based on meeting performance goals, rather than being prescriptive.
Fisheries management
Fisheries management in the Commonwealth is controlled by the Fisheries Management Act 1991 and the Fisheries Administration Act 1991. The EPBC Act requires a strategic assessment of each fishery managed by the Australian Fisheries Management Authority under the Fisheries Management Act. Management plans for fisheries are assessed, not individual concessions or permits. This ensures that broad environmental issues are adequately addressed by the specific management plans.
Ocean dumping
The Environment Protection (Sea Dumping) Act 1981 provides for wastes and other substances to be dumped in Australian waters. If the dumped material contains low levels of contaminants, and the dumping site was chosen to minimise adverse effects, then the dumping will comply with this Act and a permit may be granted by the Minister. If the dumping has a 'significant impact', then the full process of the EPBC Act must be followed. The EPBC process includes a more detailed environmental assessment.
United States
The US has no overarching legal framework for ocean management or environmental protection, but they are currently in the process of developing a more integrated approach to oceans management. Currently US marine policy is complex, with the environmental impacts of different activities being controlled through different regulations, and managed by different agencies (around 10 of them).
The National Environmental Policy Act of 1969 (NEPA) promotes a sustainable development approach to the use of the environment. It requires the appraisal of environmental effects of identified federal projects and activities. NEPA requires an environmental impact assessment (EIA) for every major federal action that significantly affects the quality of the human environment. Specific requirements for NEPA are separate from federal sectoral approval for different activities in the EEZ (as discussed below).
How does this affect different activities?
Petroleum
Offshore petroleum development is controlled by the Outer Continental Shelf Lands Act. This Act establishes federal jurisdiction on the outer continental shelf, and gives the Secretary of the Interior responsibility for administering mineral exploration and development of the continental shelf.
The Department of the Interior prepares a five-year plan that specifies the size, time and location of areas to be assessed for federal offshore petroleum leasing. It also prepares an environmental impact assessment in accordance with NEPA regulations. An exploration plan needs to be submitted and approved for exploration activity. The Department of the Interior prepares one of three documents, depending on the level of information.
- A categorical exclusion review is the briefest form of NEPA assessment, and is used to verify that a more in-depth environmental assessment or environmental impact statement is not needed.
- An environmental assessment is prepared to determine if significant impacts may occur that would require preparation of an environmental impact statement. Environmental assessments are prepared for outer continental shelf oil and gas activities on a selective basis. An environmental assessment documents the potential environmental impacts of proposals that do not require an environmental impact statement.
- An environmental impact statement is the most in-depth examination of an activity's potential effects. The Outer Continental Shelf Lands Act requires that an environmental impact statement be prepared "at least once" for approval of a development and production plan in any area outside the Gulf of Mexico.
In addition to the exploration plan, a development and production planmust be approved before any development or production activity begins. This document must contain supporting information, such as environmental information, an archaeological report, biological report, or other necessary environment data. After receiving the plan, the government prepares a categorical exclusion review, an environmental assessment or an environmental impact statement.
Fisheries management
The key piece of federal legislation for fisheries management is the Magnuson-Stevens Fishery Conservation and Management Act. This establishes eight regional fisheries management councils. These councils must prepare a fisheries management plan for each fishery in their jurisdiction. There is a high degree of industry participation in these councils.
To be approved by the Secretary of Commerce, fisheries management plans must contain a number of requirements, including:
- measures that focus on long-term sustainability of the fishery
- descriptions of the physical and financial characteristics of the fishery and the industry
- effects of the management plan on the habitat and fishing sectors
- measures to prevent overfishing, bycatch, and the mortality of fish released alive
- equitable allocation of harvest restrictions or benefits among fishing interests.
Once a fishery management plan is approved, the management plan is promulgated as a set of federal regulations with the force of law. All permit and licensing systems for that fishery must be aligned with the management plan.
Ocean dumping
The Oceans Dumping Act regulates the dumping of all types of materials into ocean waters. It prevents or restricts dumping substances into the ocean that adversely affect human health or the marine environment. The United States Army Corps of Engineers issues permits for dredged material, and the Environmental Protection Agency (EPA) regulates the dumping of all other material.
When granting a permit, the EPA must show that the following has been considered:
- the need for the proposed dumping
- the effects on human health, fisheries, marine ecosystems and the coastline
- the persistence and permanence of the effects of dumping
- the effects of dumping particular volumes and concentrations
- appropriate locations and methods of disposal or recycling, including alternatives
- the effects on other uses of the ocean.
United Kingdom
Environmental management in the UK is conducted mainly by central government or national agencies. The Department of Environment, Food and Rural Affairs is responsible for policy, and the English Environment Agency is responsible for implementation and enforcement (there are similar offices in Scotland and Northern Ireland).
However, activities within the EEZ are controlled by sectoral-based agencies, such as the Department of Trade and Industry for oil and gas activities. Some activities require a strategic environmental assessment (described below) before the area of land is made available to businesses. An additional complication is the influence of European Union policy on UK legislation.
How does this affect different activities?
Petroleum
Oil and gas authorisations involve three stages: a strategic environmental assessment, licensing, and controls on specific activities.
A strategic environmental assessment occurs when blocks of area are made available for exploration and production. It looks at a range of factors, including any environmental protection standards in the area, any issues, potential activities, likely environmental impacts of the activity, how impacts will be managed and monitored, and any information gaps or uncertainty.
Like the US, the UK issues separate exploration and production licences. The production licence includes conditions to protect the environment and the needs of fisheries, defence, transport, and any other interests in the block.
The third stage places controls on specific activities. There are a number of other statutes that apply to oil and gas activities (at least a dozen). Operators that obtain a production licence must still comply with these requirements. Of particular significance are the Offshore Petroleum Production and Pipelines (Assessment of Environmental Effects) Regulations 1999, which require an environmental impact assessment and an environmental statement to be submitted for certain projects. An environmental statement must be approved before a production licence can be granted.
Fisheries management
Fisheries management in the UK is directed by European Union Policy - the Common Fisheries Policy. This policy and the domestic management systems that give effect to it have serious deficiencies, and the Common Fisheries Policy is currently being reviewed.
Under the Common Fisheries Policy system, the UK is allocated a total allowable catch, which is then on-allocated to industry through licences and grants. The process for determining total allowable catch is largely political, and there appears to be no structured impact assessment process.
Offshore wind farm authorisations
The process for regulating offshore wind farms in the UK is similar to that for oil and gas projects. It involves a strategic environmental assessment, tendering of space and granting of leases, and specific development approvals.
Approval from several agencies is needed to establish an offshore wind farm. [The Department of Trade and Industry does offer a one-stop-shop for dealing with the different government agencies.]
- The Department of Trade and Industry grants approval to construct and operate a generating station under the Electricity Act 1989.
- The Department for Environment, Food and Rural Affairs consents to deposit materials in waters below mean high-water springs under the Food and Environment Protection Act 1985.
- The Department of Transport grants consents for construction under or over the seashore lying below the level of mean high-water springs under the Coastal Protection Act 1949.
When granting a licence under the Food and Environment Protection Act 1985, matters considered include the potential hydrological effects, interference with other activities, risks to fish and other marine life, and any adverse implications for designated marine conservation areas.
The European Union requires all applications for offshore wind farms that are likely to have a significant effect on the environment to undergo an environmental impact assessment. The Department of Trade and Industry has decided that this effectively covers all offshore wind farms. This environmental impact assessment is reported in an environmental statement (as with oil and gas projects).
Lessons from Australia, the US and the UK
As described above, Australia, the US and the UK each have a different management system for their EEZ. Although each country manages the environmental effects of activities differently, each has a greater ability to manage environmental effects than New Zealand currently does.
Effects on the environment from activities within Australia's EEZ are controlled through a variety of Acts, all under the umbrella of the Environmental Protection and Biodiversity Conservation Act 1999 (EPBC Act). This Act is able to comprehensively cover all activities that have a 'significant' affect on a matter of national environmental significance in the EEZ.
The US has no overarching framework for ocean management or environmental protection, so while comprehensive, US marine policy is also quite complex. The environmental impacts of different activities are controlled by a number of regulations and managed by around 10 agencies. The US is currently in the process of developing a more integrated approach to oceans management.
Environmental management in the UK is also complex, comprising a myriad of activity-based legislation as well as the overarching provisions of European Union policy. One of the first steps in the approval process for the granting of petroleum and offshore windfarm permits in the UK is a strategic environmental assessment, which is a process for predicting and evaluating the environmental implications of a policy, plan or programme. Strategic environmental assessment is done area by area as a way to strike a balance between promoting economic development and effective environmental protection. This area-based approach is useful when there will be intensive development in a particular location.
Australia's overarching Environmental Protection and Biodiversity Conservation Act and the UK's strategic environmental assessment provide particularly useful models for informing New Zealand's choices on ways to manage the environmental effects of activities within the EEZ more comprehensively in future.
