The Balance of Environmental Protection and Economic Development in Federal Decision-making: An Investigation into Section 74A of the Environment Protection and Biodiversity Conservation Act 1999 (Cth)

Recent use of the split referral process under the Environment Protection and Biodiversity Conservation Act 1999 (Cth) (EPBC Act) in South Australia has raised serious questions around the legitimacy of s 74A and its ability to ensure environmental protection. The referral, assessment and approval process under the EPBC Act purports to limit negative impacts on the environment while facilitating economic development. Section 74A provides the discretionary opportunity to reject a split referral (ie, an application for approval of one aspect of a larger project), however, this research finds the discretion has never been invoked in practice despite identifying suitable opportunities. This article provides critique from an Earth jurisprudence perspective on s 74A and relevant policy with reference to recent decisions, in particular a split referral related to the Olympic Dam development in South Australia. It concludes the current operation of the ministerial power imposes a vague and ambiguous discretion on the Minister which has allowed for the manifestation of pro-development bias in decision-making. Accordingly, the current review of the EPBC Act needs to incorporate reform to either the objects of the EPBC Act or the s 74A power itself to elevate environmental consideration to a primary focus of decision-making processes.