Last week, ACF’s court case challenging Environment Minister Murray Watt's decision to approve Woodside's disastrous North West Shelf gas extension to 2070 was heard.
Over four jam-packed days, our legal team stood in the Federal Court of Australia, showing the Albanese Government that they can’t get away with approving polluting gas projects while ignoring the consequences.
You can read about the background and ACF’s grounds for challenging these decisions here.
So, what happened? And what happens next?
From left to right: ACF Legal Counsel Matthew Clare, ACF General Counsel Adam Beeson, EJA Senior Lawyer Cecile Bester and EJA Special Counsel Inshani Ward. Image by Ari Balle-Bowness
What happened in Court?
ACF was represented by Environmental Justice Australia (EJA) and a team of barristers – Angus Scott KC, Hannah Douglas, and Josh Underwood. The case was heard in the Federal Court of Australia by Justice Catherine Button.
Just to quickly refresh, ACF and EJA lodged two challenges against Environment Minister Murray Watt in relation to his assessment and approval of the North West Shelf gas extension.
Court challenge #1:
ACF challenged the Environment Minister’s refusal to consider the devastating climate change impacts of the North West Shelf extension on a huge range of protected matters – such as World Heritage places and countless threatened species and ecological communities.
Court challenge #2:
ACF also challenged the Environment Minister’s decision to approve Woodside’s disastrous North West Shelf extension to 2070. ACF argued that the Minister’s approval was legally wrong, pointing to five errors in the Minister’s decision which mean the Court should set the approval aside
Now let’s get into the nitty gritty of the Court hearing.
Mr Scott KC opened ACF’s case on the first day of hearing. He explained that the Minister committed a legal error when he decided that the project’s greenhouse gas emissions would have no impact on a wide range of matters protected by the Environment Protection and Biodiversity Conservation Act 1999 (EPBC Act), Australia’s national environmental law. The Minister claimed the project would not cause a ‘net increase’ in global emissions or, if it did, it would only increase global emissions by a ‘very small’ amount.
ACF submitted that, accepting that every tonne of greenhouse gas emissions increases global warming with consequences for those protected places, plants and animals, the Minister’s comparison of the project’s emissions to global emissions asked the wrong question. He should have assessed whether the project’s emissions would be a substantial cause of impacts on protected matters.
Mr Scott KC also explained to the Court that the circumstances surrounding the approval might suggest to an ordinary person that the Minister might not have been impartial – called ‘apprehended bias’.
Those circumstances include:
the extensive negotiations between the Minister’s Department and Woodside Energy about the conditions of approval, as revealed by ACF through Freedom of Information requests
'the sequencing of decision-making by the Minister. The Minister made a decision about the scope of assessment, but withheld the written reasons for that decision until after the approval. ACF submitted that a member of the public might think the Minister was looking for ways to approve the project from the outset, and never really contemplated refusing it.
The Court also heard that the Minister:
justified his approval of the project by including the asserted economic benefits of the Browse gas project – a separate project which had not yet been approved – while not considering the environmental harms from that project
left out critical details about the gas which would be processed by the project, making the scope of the Minister’s approval uncertain and his conclusion that the impacts on rock art at Murujuga could be managed legally unreasonable.
Lawyers for Woodside, and then lawyers for the Minister, responded later in the week.
Most significantly, Woodside and the Minister agreed that the Minister’s approach to the climate consequences of the project was acceptable. Lawyers submitted to the Court that Australia’s national environmental law was not designed to deal with climate change, and that the Minister has a lot of discretion when it comes to decisions about environmental impacts. In effect, both Woodside and the Minister for Environment agreed that the Minister probably could have assessed the project’s climate consequences but was permitted to choose not to.
Woodside and the Minister did not agree on everything. In particular, lawyers for Woodside submitted that ACF was not allowed to complain about apprehended bias because it was not owed a duty of procedural fairness. If that’s right, the public could be shut out from seeking legal recourse for important Government decisions made in shady circumstances.
The Minister did not join Woodside in that view.
On Friday, ACF closed its case. Mr Scott KC delivered powerful rebuttals to the Minister and Woodside’s arguments, and reiterated the submissions that the Minister had made legal errors
Rally for the reef outside the Court. Image by Ari Balle-Bowness
What happens next?
Justice Button reserved her decision after hearing from all parties. Her Honour will now need to carefully consider the arguments and make decisions on each ground.
If ACF succeeds on any of its arguments, the decision to approve the project will be set aside. It will need to be remade in accordance with the law. What that means depends on the grounds ACF succeeds on.
In particular, if ACF succeeds on establishing that the Minister’s approach to climate change involved a legal error, the Minister will need to go back to the drawing board and properly assess the consequences of the project’s climate pollution. Depending on what the Court says, this could involve reassessment of impacts on a huge range of protected parts of nature across Australia.
ACF might not succeed on all of its grounds, or any of them. That’s up to the Court to decide. If that happens, ACF will consider all of its legal options. And we won’t stop fighting to protect nature.
We don’t know when the decision will be made – but we will keep you updated.