CIVIL TRIAL AGAINST ENVIRONMENTAL PROTECTION AUTHORITY OVER SCARBOROUGH GAS BEGINS

The Conservation Council of WA’s (Applicant) action against The Chairman of the Environmental Protection Authority (Respondent) commenced yesterday, Monday 20 Dec 2021, in The Supreme Court in Perth. The Respondent‘s case is supported by Woodside as an Intervener.

The Environmental Defenders Office is representing The Conservation Council of WA (CCWA) in the 3 day hearing and led the proceedings before the Honourable Justice Allanson, who will decide the civil case.

Mr Jackson for the CCWA spent some hours outlining to Justice Allanson the grounds for the CCWA’s belief that changes, proposed subsequent to the Burrup Hub gas development proposal which has continued to be approved in stages, were not fully considered as to their effect upon the environment.

In the Supreme Court hearing, the CCWA’s lawyer explained that changes to approvals made by the EPA in July 2019, about two Burrup Hub facilities, included references to the processing of gas from other gas fields. The original approvals restricted processing of gas to particular sources, but the July 2019 changes, allowed gas from other sources to be processed.

CCWA argues that it has already been decided by Courts that a proposal must be clear and certain enough to be able to be assessed by the EPA. However, references to the possibility of processing gas from other fields were not sufficiently certain in the documents outlining the changes to the original approval. Also, the emissions calculation did not change between the original proposal for the Burrup Gas Hub in relation to Pluto gas and the changes to the original proposal.

CCWA’s lawyer drew Justice Allanson’s attention to the fact that the proposal as approved was limited to the exploitation of the Pluto gas field, as was evidenced by the Ministerial statement; and the EPA approval also referred to that fact. Therefore, CCWA says that Pluto gas emissions may have been assessed but that processing additional gas from other unspecified sources at the Hub would surely increase emissions, and there was no evaluation of this fact.

A focus on the first day of the hearing upon the language of a Memo and a letter from the EPA, in substance the recommendation that the changes to the Burrup Hub development approval also be approved, revealed the concerns of the CCWA that conclusions about the detrimental effects on the environment - said to be unlikely, nor additional to, nor different from the original approval - were accepted as probable, when a better approach would have concerned the possibility of detrimental effects on the environment.

CCWA says that the Memo contained the false assumption that the original approval allowed other gas to be processed.

Under section 45 (c) the EPA must assess changes to a proposal exactly as it assessed the original proposal, in order to understand the effect of the changes, and this had not been done according to CCWA, because the change in scope of the gas to be processed and the emissions that would be produced were not part of the original assessment, and there was no evidence that the requirement of the EPA that Woodside abate or mitigate or minimise gasses was re-assessed, because a list of items assessed in the Memo excluded greenhouse gas emissions.

In short, it is the position of the CCWA in the Supreme Court hearing that the EPA approval process was flawed and unlawful. Evidence of errors included portions of a document provided by the Intervener appearing in the Memo stating that no additional management was required and no additional effects on the environment would arise (indicating a cut and paste exercise). CCWA also said the Chairman of the EPA failed to ensure that a six stage process occurred within the Department to properly assess the changes to the original approval, as was his statutory duty.

In June 2019, The Environmental Protection Authority (EPA) recommended environmental approval of a sub-sea natural gas pipeline proposal linking gas fields to the Burrup hub, subject to conditions including the protection of internationally significant Aboriginal rock art. In January 2020 the EPA recommended approval of the trunkline adjacent to the existing Pluto LNG Facility.

Opponents of the Burrup Hub development say splitting it into separate parts is a tactic to obtain approvals by degrees, which also has the effect of obscuring the overall project’s greenhouse gas emissions.