As the level of public support for Australia's coal, oil and gas industries deteriorates, the communities who are forced to endure the environmental and health impacts of fossil fuel developments are increasingly finding a voice to challenge them. One of the most important avenues for public-interest challenges to noxious industries is through the courts.
But as the ugly reality of fossil fuel projects is exposed in our courtrooms, big oil and gas are fighting back, and they are fighting dirty - the only way they know how.
In their latest effort, Australia’s peak oil and gas lobby group have launched an attack on the groups that provide legal aid for communities affected by their developments, calling for the Federal Government to revoke the tax-deductible status of these charitable organisations.
In a recent submission to the Inquiry into the Register of Environmental Organisations, the Australian Petroleum Production and Exploration Association (APPEA) accused Australia’s community legal centers of ‘constraining lawful development to the detriment of the public interest’. That’s right: according to APPEA, environmental lawyers are making mischief in the courts with the goal of denying benefits to ordinary Australians.
The national network of Environmental Defenders Offices (EDO) offer free legal advice to individuals and community groups and undertake public interest litigation in a limited number of cases. It’s a wonder, actually, that the EDOs are able to mount any effective legal action at all after almost two decades of bipartisan federal funding was terminated in 2014, but their ongoing existence appears to be a thorn in the side of an industry with combined annual export revenue of over $30 billion.
It’s worth mentioning, in passing, the pecuniary gap between APPEA members – a prestigious group comprising some of Australia’s biggest grossing companies, including Chevron, BHP Billiton, Shell, AGL and Woodside – and the state and territory EDOs, with the latter funding their community-focused advice and advocacy services on the ‘smell of an oily rag’. Which seems drearily apt.
APPEA’s claim that the EDO’s fail the public interest test and don’t merit government funding blithely – and conveniently - overlooks the recommendations of the Productivity Commission.
In December last year, the independent economic advisor emphatically backed government funding of the EDOs on the grounds that ‘inappropriate developments’ may well be justiciable by the courts, but individuals or communities have insufficient resources to pursue their rights to legal review and there are limited incentives for private lawyers to assist them.
APPEA are eager to beat the drum about the legality of major resource development - the word ‘lawful’ appears no less than 19 times in their submission – but they display an appalling grasp of the concept of lawfulness and the importance of public interest litigation in improving or enforcing the law.
In the high profile Western Australian case against the James Price Point gas hub in the Kimberley, Chief Justice Wayne Martin found that the State Government approval for the development was unlawful due to failures to address conflicts of interest among EPA board members. In short, the gas development was unlawful and it took a case run by the EDO and the Wilderness Society to reveal this.
The majority of EDO litigation, as it happens, has resulted in significant and positive change – either the complete reversal of a decision or material improvements to project conditions. According to the Productivity Commission, no cases launched by the EDO in the last five years have been found to be ‘frivolous or vexatious’ - legal terms used to denote cases with no prospect of success, designed to inconvenience or harass the litigant.
Other recent EDO cases – including judgments requiring remediation of pollution, banning mining near rare or threatened ecological communities, and mandating greenhouse gas emission offsets from Ulan’s coal expansion in NSW – underscores the critical role the EDO’s play in clarifying the law and protecting the interests of the entire community, not just those that stand to profit from resource extraction.
APPEA’s submission includes, as always, the ubiquitous industry patter spruiking the greenhouse benefits of Australian LNG; benefits they allege will be put at risk by ‘groups that seek to fund their objective of preventing the lawful development of Australia’s publicly owned resources by a taxpayer funded subsidy’. It’s a diabolical argument. And even if we leave to one side the vast subsidies underpinning oil and gas exploration in Australia, and the fundamental – although apparently superfluous - democratic principle of access to justice for all, APPEA’s claimed environmental benefits simply don’t stack up.
The greenhouse gas benefit of LNG over coal – even under the implausible assumption that all Australian LNG replaces coal-fired generation – fails to approach the 50-70 percent reductions claimed by APPEA. An industry-funded CSIRO study reveals lifecycle greenhouse gas emissions from LNG are much greater than claimed by industry, while independent research suggests that LNG pollution could be similar to that produced by coal-fired electricity generation.
In light of APPEA’s fanciful presentation of the evidence, it’s little wonder they have no appetite for closer scrutiny in the courts.
In March this year, the Australian Attorney General restored funding to all community legal centers with the exception of EDOs, who now receive no federal funding for environmental law reform, advice, litigation or any of their other activities. In Western Australia – the hub of Australia’s oil and gas development – the State Government has also withdrawn funding for the EDO, effective from 30 June this year.
For a Federal Government devoted to the ‘coal is good for humanity’ rhetoric, the decision to revoke funding for EDOs comes as no surprise, but it leaves environmental legal centers more reliant than ever on charitable donations from the private sector. Stripping the tax-deductibility status of the EDOs will deliver a significant blow to the national network of environmental defenders, and may significantly restrain environmental public interest litigation in Australia.
And that is precisely the point, of course. APPEA members are not primarily concerned that public interest litigation may be frivolous or vexatious; they’re worried that it may not be, as Ulan’s landmark ruling demonstrates.
It’s not difficult for an industry sector delivering an annual tax revenue of around $8 billion, with royalties of over $1 billion in Western Australia alone, to get the ear of the government – indeed, Chevron has successfully lobbied the WA Environment Minister to revoke all greenhouse gas conditions for its giant Wheatstone LNG project, against the advice of the Environmental Protection Authority, his own department, and an independent consultant - but a robust legal system, underpinned by an independent judiciary and a well-resourced public defender, is an altogether thornier problem.
Ultimately APPEA and the Governments doing their bidding may find that the attacks on the EDO’s may have the opposite effect to that which they seek. Under government funding, EDO’s have been obliged to provide advice to members of the public on all manner of environmental issues – from coal mines to noisy air conditioners. If they survive the cuts, the EDO’s may well find themselves more able to pursue the kinds of strategic litigation that has been successful in stopping massive fossil fuel developments from proceeding.