The controversial extension of Woodside's North West Shelf gas project off Western Australia faces two legal challenges. Both raise significant concerns about the validity of government approvals. One could even seek an injunction, preventing federal environment minister Murray Watt from making a final decision.
Author
- Samantha Hepburn
Professor, Deakin Law School, Deakin University
The first battle is being fought along climate lines. Enormous amounts of greenhouse gases will be released when gas from the project is exported and burned overseas. The Friends of Australian Rock Art group now argues the then WA environment minister Reece Whitby should have taken this pollution into account when approving the extension in December.
The second concerns ancient Aboriginal rock art in the Murujuga National Park on the Burrup Peninsula. There's evidence greenhouse gas emissions released during extraction of fossil fuels is damaging the artwork, and Traditional Owners are seeking a protection order.
The decision to grant the extension appears at odds with national heritage and state environment laws. Both cases will be a closely watched test of these legal protections.
What's the North West Shelf approval about?
Approval for the North West Shelf gas processing plant in Karratha, WA, was to expire in 2030. Woodside Energy sought to extend the project to 2070 .
The state government gave approval to the extension in December, and the federal government gave conditional approval last month.
Watt gave Woodside ten business days to respond to " strict conditions particularly relating to the impact of air emissions" on nearby rock art, but that deadline was not met . Woodside has been given more time to review the conditions.
Meanwhile, two legal challenges have been mounted.
The Friends of Rock Art case
Earlier this month, the group Friends of Australian Rock Art requested judicial review of the approval by Whitby.
Judicial review is where courts review government decisions to ensure they are lawful and fair. The case is yet to be heard in the WA Supreme Court.
The group argues the state failed to give proper regard to the climate impact of the proposal, as required under the WA Environment Protection Act.
Specifically, the group argues the approval did not fully examine the climate impacts of so-called " scope three " emissions. These occur when the exported gas is burned overseas.
Under WA state law, the minister must consider whether a proposal will have a significant effect on the environment. This is a broad requirement and the climate effects of a decision are relevant.
The WA Office of Environmental Protection makes this clear in a statement of objectives, which include minimising "the risk of environmental harm associated with climate change by reducing greenhouse gases as far as practicable".
Guidelines published in November to help implement this objective set out that where scope three emissions are likely to exceed 100,000 tonnes a year, extra information must be provided to government. This includes "a summary of where the scope three emissions will be emitted (domestic or international), and whether they are or are reasonably likely to be subject to emission reduction requirements as scope 1 or 2 emissions".
The guidelines further state that the EPA's usual minimum expectation for proposals is for "deep, substantial and sustained emission reductions" this decade - with net zero no later than 2050, and reductions occurring along a linear trajectory (at minimum) from 2030.
Woodside has indicated the project extension would emit about 80 million tonnes of scope three emissions annually - about equal to the emissions from a small to medium-sized country .
Co-convener of the Friends group, Judith Hugo, said the minister did not give adequate regard to the guidelines and failed to consider the project's full impact on the climate, as well as the nearby rock art.
While litigation on scope three emissions is relatively new, it is gaining traction globally. It has become an increasingly significant factor underlying corporate climate action and policy development.
2. The Traditional Owner case
Raelene Cooper is a Mardathoonera woman and founder of the group Save our Songlines. She filed legal action in the Federal Court in 2022, seeking temporary protection from industrial emissions for the art.
Murujuga has some of the planet's oldest known rock art, dating back 40,000 years. Research has shown rocks closer to the industrial operations have been degraded by past emissions .
On May 23 this year, Cooper called for an "urgent assessment of the ongoing impacts of all industry on the Burrup" before the federal government decided on Woodside's proposed extension.
She had filed a motion in the Federal Court seeking to compel Watt to make a determination of her Murujuga Section 10 cultural heritage assessment. But Watt announced conditional approval for the Woodside extension on May 28.
Watt reportedly promised to give Cooper three days' notice of the approval. That would have given Cooper an opportunity to file an injunction preventing the minister from making a final decision to approve the North West Shelf prior to resolving her section 10 protection order.
Resolution of the protection order is particularly important given the art has been nominated for UNESCO World Heritage listing . The World Heritage Committee referred the nomination back to the federal government so as to "prevent any further industrial development adjacent to, and within, the Murujuga Cultural Landscape".
This referral occurred before the project extension was approved. If the approval is finalised, the nomination may fail, because the government cannot ensure the area will be protected.
Cooper's case is set to be heard in July.
High stakes and delicate decision-making
These legal actions reflect deep public concern over the North West Shelf gas project extension.
In the context of a worsening climate emergency and damage to ancient rock art, properly adhering to the legal requirements for the assessment of such projects couldn't be more crucial.
Samantha Hepburn does not work for, consult, own shares in or receive funding from any company or organisation that would benefit from this article, and has disclosed no relevant affiliations beyond their academic appointment.
