Washington International Law Journal


The Environment Protection and Biodiversity Conservation Act 1999 (“EPBCA” or “the Act”) is the Australian government's keystone piece of environmental legislation. The EPBCA provides a legal framework to protect and manage nationally and internationally important flora, fauna, ecological communities, and heritage places—defined in the Act as matters of National Environmental Significance (“NES”). The Act comes into play when a proposed action has the potential to have a significant impact on a matter of national environmental significance. Although it has played a vital role in protecting Australia’s environment, the EPBCA does not explicitly address the cumulative impact of multiple actions on matters of national environmental significance. Further, environmental litigation in the federal courts has failed to broaden the scope of the Act to incorporate cumulative impacts. Consequently, many individually insignificant impacts escape regulation under the EPBCA despite their cumulative contribution to negative pressure on the environment. This comment argues that because many of the most serious threats to matters of NES in Australia result from the cumulative impact of many activities, a holistic or landscape approach to the environmental assessment process is vital to appropriate environmental management. A shift to an assessment process that explicitly requires consideration of cumulative environmental impacts is a feasible, equitable, and cost-effective way to address this significant loophole in the EPBCA.

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