Why this new climate case against the high-polluting Scarborough gas project is so significant

The Scarborough gas project will export gas from WA to countries in Asia. Shutterstock

The next frontier of climate litigation is gas

Australian climate lawyers are no stranger to challenging approvals for coal mines in the country. The ACF’s case brings similar strategies to the Scarborough gas project.

Woodside’s Scarborough-Pluto gas project proposes to drill and pipe gas from off the coast of Western Australia, mainly to supply natural gas to countries in Asia^[6].

The company has said^[7] their oil and gas projects are consistent with their science-based, Paris-aligned reduction targets for scope 1 and scope 2 emissions, which include emissions directly released from the project, such as leaking methane. But this doesn’t include the scope 3 emissions, which are associated with burning gas by overseas customers.

Read more: The ultra-polluting Scarborough-Pluto gas project could blow through Labor’s climate target – and it just got the green light^[8]

As the 2021 study^[9] concluded, the Scarborough gas project will cause an estimated 1.37 billion tonnes of cumulative emissions by 2055.

Despite these potentially significant climate change impacts, the Scarborough gas project has never been approved under Australia’s environmental protection law, the EPBC Act^[10].

The Great Barrier Reef is slowly recovering from recent coral bleaching, and ACF argues Woodside’s gas project will destroy the reef further. Shutterstock^[11]

This is because Australian law allows all offshore gas and oil projects to be assessed under a streamlined process^[12] by the offshore regulator, the National Offshore Petroleum Safety and Environment Management Authority. The EPBC Act^[13] also doesn’t include a “climate trigger” requiring the climate change impacts of projects to be assessed.

Lawyers for the ACF^[14] will argue the project is likely to have significant impacts on the heritage values of the Great Barrier Reef.

They’ll point to the broader carbon footprint of the project, arguing the burning and consumption of the gas in other countries will increase greenhouse gas emissions in the atmosphere, thereby increasing global average surface temperature, and increasing the risk of mass coral bleaching in the Great Barrier Reef.

Until an environmental impact assessment has taken place, lawyers say Woodside must be restrained from developing the Scarborough gas project.

An uphill battle?

The ACF’s case has only just begun and will likely encounter headwinds in efforts to make out its novel claim.

Last year, we saw the disappointing result^[15] in the Sharma case, where the federal court unanimously overturned a finding that the federal environment minister owed Australian children a duty of care to prevent harm from emissions caused by approving a coal extension project.

The Sharma case involved eight high school students, who sought to stop the federal environment minister approving a coal mine expansion in NSW. Dean Lewins/AAP^[16]

Indeed, other challenges^[17] to the Scarborough gas project in the WA supreme court have not found success, nor have challenges^[18] to another gas project, Narrabri, in NSW.

But the ACF case takes a different tack. It uses an application for an injunction to allow evidence be given about how the Scarborough project impacts the environment. On the other hand, previous challenges to the Scarborough gas project focused on the decision-making process.

And in recent years there have also been other notable cases in the Rocky Hill litigation^[19] and the KEPCO mine^[20], where the courts have refused to approve new fossil fuel developments on environmental grounds.

Read more: Today's disappointing federal court decision undoes 20 years of climate litigation progress in Australia^[21]

Between a climate crisis and an energy crisis

The ACF’s case against Woodside’s Scarborough gas project is linked to much broader tensions between the need for urgent climate ambition, the global^[22] and domestic^[23] energy crisis, and arguments around needing gas as a transition fuel.

Woodside’s gas project will make it difficult for Australia to meet its climate targets by 2030. Shutterstock^[24]

Globally^[25], the validity of gas as a transition fuel is being tested.

Last year, the International Energy Agency^[26] published a pathway for the planet to reach net zero emissions by 2050. Under this pathway, there would be “no new oil and gas fields approved for development […] and no new coal mines or mine extensions”.

Read more: 4 reasons why a gas-led economic recovery is a terrible, naïve idea^[27]

And this month, Climate Analytics published^[28] analysis saying gas “must exit electricity generation rapidly after coal – as early as 2035 in rich countries, and by 2040 for the rest of the world – to keep the Paris Agreement’s 1.5℃ limit in reach”.

Even Woodside’s own investors are questioning the company’s pathway in the transition to net zero, with nearly 50%^[29] of shareholders voting against its climate report^[30], as it lacked detail and overly relied on carbon offsets.

At the same annual meeting, though, Woodside’s shareholders voted resoundingly^[31] in favour of the company’s merger with BHP’s petroleum arm. This cemented BHP’s move away from fossil fuels, and significantly increased Woodside’s oil and gas portfolio.

If the ACF case succeeds, it’s likely to be harder for future gas projects of this scale to be approved.

Beyond any courtroom result, cases such as the ACF’s challenge raise public awareness and conversations among policymakers about the future trajectory of the clean energy transition in this country. And this case could break new ground.

Read more https://theconversation.com/why-this-new-climate-case-against-the-high-polluting-scarborough-gas-project-is-so-significant-185578