Stay current on your favorite topics
MRET requires that renewable energy make up 20% of the nation's electricity by 2020
The Australian government's mandatory renewable energy target (MRET) supports investment in renewable energy, requiring that renewable energy make up the equivalent of 20 percent of the nation's electricity by 2020.
The Australian Clean Energy Council reported that in 2018, wind generation produced 33.5 percent of the nation's renewable energy and 7.1 percent of its overall electricity. The contribution of wind energy to meeting the MRET is expected to grow, with nine onshore wind farms starting operations in 2018 and another 24 under construction or financially committed. Given this track record of nearly 20 years of onshore wind farm developments, a fairly stable regulatory system exists for evaluating and regulating their environmental and social impacts.
The same cannot be said for Australia's nascent offshore wind farm industry. There is growing interest in taking advantage of higher wind speeds and capacity factors off Australia's shores, particularly in the country's southeast, with its shallower seas and proximity to the onshore national electricity grid. However, prospective developers and Commonwealth and state government authorities are still grappling with the processes for securing title to the seabed and for assessing, approving and regulating offshore wind farms.
COMMONWEALTH AND STATE RESPONSIBILITIES FOR WIND FARM DEVELOPMENT
Australia's states and territories are primarily responsible for the environmental impact assessment, approval and regulation of onshore wind farm development. However, the Commonwealth retains important responsibilities for legislating to give effect to Australia's international environmental treaty obligations and to protect matters of national environmental significance. The key Commonwealth environmental legislation that can affect wind farm development is the Environment Protection and Biodiversity Conservation Act 1999 (EPBC Act).
Under Australia's constitutional setup, the jurisdictions of the states only extend three nautical miles offshore. Beyond that limit, the remainder of Australia's territorial sea and exclusive economic zone is administered by the Commonwealth, and is referred to in the EPBC Act as the "Commonwealth marine area."
This means the Commonwealth government will have primary responsibility for assessing and approving any offshore wind farms proposed within the Commonwealth marine area. For these projects, the states and territories will have a secondary but important role in assessing and approving transmission line connections to the onshore electricity grid, construction and operational ports, and other ancillary aspects of the wind farm project.
Environment Protection and Biodiversity Conservation Act
The EPBC Act protects a number of "matters of national environmental significance." These include listed threatened flora and fauna species and ecological communities, listed marine species, the Commonwealth marine area, world heritage properties, Ramsar Convention wetlands and places inscribed on the National Heritage List. Under this Act, a wind farm proponent refers the project to the Commonwealth Minister for Environment for a determination of whether, based on its likely impacts on matters of national environmental significance, the project must undergo environmental impact assessment and approval from the Commonwealth government. The referral is placed on public exhibition for ten days before a decision is made.
The Commonwealth has entered into bilateral agreements with the states and territories that limit the potential for duplicating Commonwealth and state/territory environmental impact assessments. For most onshore wind farm projects in Australia, this has meant that proponents have only been required to prepare an environmental impact assessment that complies with the requirements of the state and territory land-use planning and environmental assessment laws. The Commonwealth has then relied on the outcome of that assessment to decide whether to approve the wind farm.
The situation for offshore wind farms is more complicated because the bilateral agreements do not apply to projects that extend outside the jurisdiction of the relevant state or territory. This means that any project that includes a wind farm in the Commonwealth marine area and ancillary infrastructure within a state or territory will require a bespoke, integrated impact assessment to be agreed upon and coordinated by both tiers of government. While no law requires this, often the Commonwealth and the relevant state and territory government agree to an integrated impact assessment that addresses the legal and policy requirements of both tiers of government.
There is growing interest in taking advantage of higher wind speeds and capacity factors off Australia's shores, particularly in the country's southeast, with its shallower seas and proximity to the onshore national electricity grid.
IMPACTS TO BIRD AND BAT SPECIES
Wind farm project proponents are required to assess whether the wind farm will have significant or unacceptable impacts on native bird and bat species, focusing particularly on potential collision with turbines or barotrauma for bat species. Assessing the impacts of proposed onshore wind farms can be time- and resource-intensive, especially undertaking bird and bat utilization surveys for listed threatened species. In some instances, surveys can be required over several years. Anabat detectors have been deployed at ground level and hub height to evaluate whether a proposed wind farm site is being used by protected bat species, and collision risk modeling and population viability assessments are sometimes required to quantify potential bird and bat mortality due to collision with turbines and the effects of this mortality on the long-term species' viability.
While there are, as yet, no offshore wind farm projects for which environmental approval has been sought, we anticipate that survey efforts of similar intensity and duration may be required to satisfy Australian regulators about any project's potential impacts to seabirds, migratory bird species and marine species.
The Commonwealth EPBC Act makes it an offense to undertake any project that will have a significant impact on the environment in the Commonwealth marine area or on listed threatened species or communities, listed migratory species or listed marine species. The list of protected species includes migratory bird species protected under the Bonn Convention on the Conservation of Migratory Species of Wild Animals and bilateral agreements between Australia and the People's Republic of China and Japan.
However, a wind farm developer will have a defense if the wind farm has been referred to the Commonwealth and it has decided that the project does not require its approval, or if the project has undergone the impact assessment, public comment and approval process set out in the EPBC Act. This legal protection often underpins wind farm proponents' decisions to refer their wind farm projects to the Commonwealth under the EPBC Act, even if the environmental studies indicate that the particular project's impacts on wildlife are likely to be low.
In addition to these project approvals, the EPBC Act requires a permit to "take" various marine species, in particular marine mammals. This means a permit can be required to undertake survey activities, such as baiting and tagging, and permit applications are also made available for public notice. However, for marine survey purposes, they are typically non-contentious. Unlike in other jurisdictions such as the US, incidental "take" permits are not required to authorize a project's impacts on species if the project has been approved following the referral and environmental impact assessment procedure described above.
Each state and territory also has its own wildlife protection laws, which typically make it an offense to take any native species without a permit. These permit requirements can also capture certain marine survey activities, but the need for public notice varies between jurisdictions.
VISUAL IMPACTS OF ONSHORE WIND FARMS
Significant landscapes can be protected under the EPBC Act if they are inscribed on the World Heritage List maintained by UNESCO, or on the National Heritage List maintained by the Commonwealth Department of Environment and Energy. Significant landscapes can also be identified and protected by local planning instruments by virtue of their scenic, geomorphological or other notable characteristics.
This makes it important for wind farm developers to select and procure potential wind farm sites that avoid locations protected by the EPBC Act or state land use planning and heritage laws, including onshore landscapes in the vicinity of the proposed wind farm site.
For onshore wind farm proposals, a planning application must typically be accompanied by a landscape and visual impact assessment (LVIA). While a number of states and territories have issued generic guidelines for assessing the impacts of wind farms, only draft National Guidelines and a NSW Planning Bulletin provide a framework for undertaking a systematic and repeatable impact assessment of the landscape and visual impacts of proposed wind farms.
It is typical for LVIAs to be accompanied by computer-generated photo montages of the wind farm viewed from public locations and, sometimes, from private dwellings in the vicinity of the wind farm. Generally, however, provided a wind farm site and its locality avoid identified important or significant landscapes, localized visual impacts of wind farms are accepted by state land-use planning systems if the turbines are a reasonable distance from the nearest non-participant dwellings.
To address potential concerns of residents in the vicinity of wind farms (typically three to five kilometers from turbines), wind farm developers are usually required to offer landscaping at such residences to shield them from views toward the wind farm.
Once again, there are no guidelines or protocols for assessing the landscape and visual impacts of offshore wind farms. However, environmental and land-use laws and guidelines to protect the amenity and ecological processes along the Australian coast will undoubtedly give high prominence to the importance of assessing and reducing the visibility and visual impact of offshore wind farms, especially when viewed from beaches or national parks. Similarly, it can be assumed the methodologies and parameters developed to assess the landscape and visual impacts of onshore wind farms over the past two decades will be used or applied to assess the effects of offshore wind farm proposals.
In Australia, the potential effects of aerodynamic noise from turbines on the health and well-being of nearby residents has been a key high-profile issue associated with onshore wind farms. Each state and territory has published noise criteria, with which onshore wind farms must comply.
For offshore wind farms, it is expected that the construction and operation of the projects' onshore elements, such as ports or substations, and underwater effects associated with the installation of offshore turbines, will be the focus of environmental regulations and communities alike.
Onshore noise guidelines
Each Australian state and territory has laws, implemented by an Environment Protection Authority, that regulate environmental noise. These regulations address construction and operational noise, either through statutory policies or non-statutory guidelines. Given that offshore infrastructure associated with offshore wind farms will most likely be situated adjacent to regional onshore areas with low ambient noise, it will be important to select appropriate locations for port facilities, substations and transmission line alignments to optimize the prospects of satisfying state and territory EPA laws and noise guidelines.
Underwater noise from the construction of offshore wind farms, especially from pile‑driving turbine foundations, and its effects on marine fauna has been a significant issue for a number of projects around the globe. In Australia, the regulation of underwater noise to date has mostly focused on seismic exploration for oil and gas, and the Commonwealth has set sound energy-level criteria and recommended best practice management to reduce the effects of seismic operations on marine mammals. The South Australian government has also published underwater pile-driving guidelines to protect marine mammals, and in 2017 the Great Barrier Reef Marine Park Authority published an Issues and Options Paper for developing and enforcing underwater noise guidelines.
While there are no underwater noise standards for offshore wind farms, it can be assumed that approaches and guidelines for the offshore oil & gas industry, as well as overseas guidelines and precedent, will inform the Australian governments' methods for evaluating the effects of underwater noise from offshore wind operations on marine fauna.
DECOMMISSIONING AND REPOWERING
As yet, no Australian wind farms have been decommissioned, nor have they been repowered when the turbines reach the end of their useful life. Nevertheless, the state and territory wind farm guidelines and the conditions of consent for onshore wind farm planning approvals typically require wind farms to be decommissioned or repowered in accordance with plans endorsed by the planning authority. In their applications, wind farm applicants typically contemplate that decommissioning plans might allow for turbine footings and other buried infrastructure, as well as access tracks and water dams that are useful to the landowner, to remain in place, while turbine, transmission line and substation infrastructure is removed and the site is rehabilitated. None of the wind farm guidelines require or encourage the wind farm developer to provide a bond or other financial security to cover rehabilitation costs.
Given the nascent state of the Australian offshore wind energy industry, there is as yet no approach to regulating the decommissioning of offshore wind farms. It can be assumed, however, that the federal government may model its overall approach on its current regulation and decommissioning of offshore oil and gas production activities. As with onshore wind farms, this would require decommissioning to be carried out in accordance with an approved plan. However, we foresee that the Commonwealth government may also require financial security to cover any offshore wind farm developer's rehabilitation obligations.
This publication is provided for your convenience and does not constitute legal advice. This publication is protected by copyright.
© 2019 White & Case LLP