Federal Court of Australia

Doctors for the Environment (Australia) Incorporated v National Offshore Petroleum Safety and Environmental Management Authority (No 2) [2025] FCA 989

ORDERS

THE COURT ORDERS THAT:

1.    The proceeding is dismissed.

2.    Any application for costs must be made in writing, and if made, responded to in writing as follows:

(a)    The application is to be filed by 4 pm on 29 August 2025, limited to no more than three pages;

(b)    Any response to an application is to be filed by 4 pm on 5 September 2025, limited to no more than three pages; and

(c)    Subject to any further order, the question of costs will be determined on the papers.

Note:    Entry of orders is dealt with in Rule 39.32 of the Federal Court Rules 2011.

REASONS FOR JUDGMENT

MCELWAINE J:

Synopsis

1    Woodside Energy Scarborough Pty Ltd proposes to develop the Scarborough gas resource in Commonwealth waters approximately 375 km west-northwest of the Burrup Peninsula off the coast of Western Australia. It forms part of the Greater Scarborough gas fields comprising the Scarborough, Thebe and Jupiter fields. Woodside in the language of the regulatory scheme is the titleholder. To proceed with the development lawfully, Woodside must address certain requirements of the Offshore Petroleum and Greenhouse Gas Storage (Environment) Regulations 2023 (Cth). The administering authority pursuant to the Regulations is the National Offshore Petroleum Safety and Environmental Management Authority (NOPSEMA), continued pursuant to s 645 of the Offshore Petroleum and Greenhouse Gas Storage Act 2006 (Cth). In these reasons each reference to a legislative provision is to the Regulations unless otherwise specified.

2    A requirement of the Regulations is the approval of an offshore project proposal by NOPSEMA. If the proposal is approved, a titleholder commits an offence of strict liability if it undertakes a petroleum activity or a greenhouse gas (GHG) activity without an environment plan that is in force for the activity.

3    On 27 February 2020, Woodside submitted its offshore project proposal to NOPSEMA to develop the Scarborough and North Scarborough gas fields (OPP). On 30 March 2020, NOPSEMA accepted the OPP. Woodside submitted three versions of an environment plan to NOPSEMA, the last in January 2025. It is titled: Scarborough Offshore Facility and Trunkline (Operations) Environment Plan, January 2025 (Revision 3) (EP). The EP is a large document comprising 752 pages plus an appendix. It deals with many environmental impacts and risks of the proposed activity, including GHG atmospheric emissions. The EP contains estimates for GHG third party emissions (commonly known as Scope 3 GHG emissions) of 162 MtCO2-e over the five-year period of the EP and 778 MtCO2-e over the expected combined life of the project.

4    The EP does not dispute the science of human induced climate change since the Industrial Revolution. Amongst other statements in the EP, the following is acknowledged (page 335):

Climate change is caused by the net global concentration of greenhouse gases in the atmosphere.

…

Human-caused climate change is a consequence of more than a century of net GHG emissions from energy use, land use change, lifestyle patterns of consumption, and production (IPCC 2023). The IPCC has stated that observed increases in GHG concentrations since 1750 leading to climate change are unequivocally caused by human activities and that there’s a near linear relationship between cumulative anthropogenic CO2 emissions and the global warming they cause (IPCC 2023).

5    Doctors for the Environment (Australia) Inc (DEA) is an incorporated association, endorsed as a deductible gift recipient and listed on the Register of Environmental Organisations (administered by the Australian Taxation Office) and registered as a charity with the Australian Charities and Not-for-profits Commission. As at 9 May 2025, it had approximately 1,844 members and its total subscribed supporters exceeded 3,500. The objects clause of its constitution in part provides:

To conserve and restore the natural environment because of its relationship to and impact on human health.

To work towards sustainable development which meets the needs of the present generation without compromising the ability of future generations to meet their own needs.

To alert doctors and the public on the health effects of environmental degradation locally and worldwide using the best available scientific evidence and the precautionary principle.

6    The uncontested evidence of Dr Katriona Wylie, the executive director of DEA, is that it is the leading medical voice on health and climate change in Australia, being comprised of members who are medical professionals and students focused on the health impacts of climate change through education and advocacy. Woodside consulted DEA before finalising the EP. DEA expressed concern about the environmental impacts and effects of Scope 3 GHG emissions in consequence of undertaking the project.

7    The Regulations require NOPSEMA to accept an environment plan submitted to it by a titleholder if reasonably satisfied that it meets the environment plan acceptance criteria. In the case of a resubmitted environment plan, s 33(7) applies. On 19 February 2025 a delegate of NOPSEMA decided to accept the EP and later, on 1 April 2025, provided a statement of reasons for that Decision.

8    By an Amended Originating Application accepted for filing on 17 June 2025, DEA seeks judicial review of the Decision pursuant to the Administrative Decisions (Judicial Review) Act 1977 (Cth) (ADJR Act) and ss 39B(1) and (1A)(c) of the Judiciary Act 1903 (Cth). NOPSEMA is the first respondent and Woodside is the second. Although there are 16 grounds of review, the core contention of DEA is that the EP did not satisfy mandatory requirements of the Regulations, was not therefore an environment plan within the meaning of the Regulations and in consequence it was not open to NOPSEMA to be reasonably satisfied that it met the environment plan acceptance criteria. Declaratory relief to the effect that the Decision is void and is of no effect is sought together with an order setting aside or quashing the Decision. NOPSEMA and Woodside resist the application.

9    It need hardly be said that it is not the function of this Court to examine the merits of what is the central concern of DEA: the release of materially more GHG into the atmosphere is likely to be catastrophic for the environment and human health. This Court is purely concerned to exercise its Constitutional function to determine on the case as formulated by DEA whether NOPSEMA erred in law or committed jurisdictional error in purporting to be reasonably satisfied that the EP met the environment plan acceptance criteria in the Regulations. It is not for this Court to adjudicate on the existential threat posed by climate change caused by anthropogenic CO2 emissions to the atmosphere.

The Project and the EP

10    Woodside proposes to perform petroleum activities within designated permit areas comprising the hook-up of the Scarborough floating production unit (moorings and subsea system), start-up and commissioning activities, routine production, the export of gas to the Pluto onshore gas plant via a gas export trunkline, inspection, monitoring, maintenance and repair of subsea infrastructure and associated surveys. This is referred to in the EP as the Petroleum Activities Program (PAP) which is addressed in very great detail in section 3 of the EP.

11    Woodside was not required to submit the project for assessment pursuant to the Environment Protection and Biodiversity Conservation Act 1999 (Cth) (EPBC Act) because, on 27 February 2014, the Minister for the Environment gave final approval for the taking of action under s 146B of the EPBC Act for the strategic assessment of the environmental management authorisation process for petroleum and GHG storage activities as administered by NOPSEMA. The effect is that action undertaken as authorised does not require separate assessment or approval under the EPBC Act.

12    The arguments for DEA focus on the wording and content of the EP to establish the basal proposition that it was not open to NOPESMA to accept it because it failed to include assessments mandated by the Regulations. Thus, it is necessary to set out the provisions of the EP which are in issue.

13    The purpose of the EP (clause 1.3) is to demonstrate that:

(i)    the environmental impacts and risks (planned (routine and non-routine) and unplanned) of the PAP are identified;

(ii)    appropriate control measures are implemented to reduce environmental impacts and risks of the PAP to as low as reasonably practicable and an acceptable level; and

(iii)    the PAP is carried out in a manner consistent with the principles of ecologically sustainable development as set out at s 3A of the EPBC Act.

14    Section 6 of the EP contains the environmental risk assessment, the identification of performance outcomes and standards and measurement criteria. This is mostly taken up with the direct and indirect impacts of the PAP activities, such as impacts on Matters of National Environmental Significance (MNES). Sub-section 6.7.6 addresses Routine and Non-routine GHG Emissions. There will be minor emissions resulting directly from the PAP such as operational flaring and exhaust emissions from internal combustion engines on vessels and helicopters, which may be put to one side. The focus of attention in this proceeding is upon the identification of “GHG emissions associated with onshore processing of Scarborough gas, third-party transportation, regasification and combustion by end users”. Of that group, the EP notes that the main source of indirect emissions is third party use, which is not part of the PAP but is “included for completeness”. That is Scope 3 GHG emissions, sometimes referred to in the EP as third party consumption.

15    Direct and Scope 3 GHG emissions are estimated at Table 6-22 of the EP:

16    The EP identifies management techniques and abatement steps that may be implemented where “practicable given that Woodside does not have operational control over third-party GHG emissions”. The examples are grouped as: Reduce (including supporting customers to reduce emissions via the investment in new energy products and lower carbon services), Substitute (promotion and marketing of the role of Liquified Natural Gas (LNG) in displacing higher carbon intensity fuels), Advocate (Woodside aligns its advocacy to support the goals of the Paris Agreement by giving speeches and making submissions), Monitor and Report, and Verification (the verification of assumptions used to estimate third-party emissions, and if the assumptions used in the EP “are found to have varied or are no longer valid, Woodside will undertake a review and re-estimate third-party emissions”).

17    There is a section which sets out the history of the Paris Agreement on climate change, with particular emphasis that LNG from the Scarborough project “is understood to have an ongoing role in supporting customer’s plans to secure their energy needs, while they reduce their emissions” and that LNG has a role to play in reducing dependence on carbon intensive fuels. A consequence of the analysis presented in this section of the EP is this conclusion (page 355):

Global energy demand is expected to increase. Since the availability of gas can support the reduction of more carbo-intensive firming fuel sources such as coal, rather than displacing renewable energy, it cannot be assumed that emissions associated with customer consumption of Scarborough gas would be entirely additive to global atmospheric emissions.

18    This was variously referred to in submissions as the displacement assumption.

19    In addressing the Scarborough contribution to GHG concentrations, the EP in part states (page 357):

The remaining carbon budget to limit global warming to 1.5°C and to 2°C was 500 GtCO2 and 1350 GtCO2 respectively as calculated from 2020 (IPCC 2023).

Since 2020, a portion of this global carbon budget has been consumed by ongoing global CO2 emissions … The last Global Carbon Budget in 2024 estimated that the remaining carbon budget for cumulative global GHG emissions to limit global warming to 1.5°C, and 2°C were 235 GtCO2, and 1110 GtCO2 respectively as at January 2025 (50% likelihood).

…

To facilitate a comparison against carbon budgets, a hypothetical scenario where GHG emissions associated with the Scarborough project are treated as entirely additive is considered. This scenario is not expected to eventuate due to reasons described above. The estimated Scarborough GHG emissions over the expected life of the development are compared with remaining carbon budgets expected to achieve the goals of the Paris agreement below. Additionally, no allowance is given for future abatement of GHG emissions associated with the project (such as through future abatement opportunities or future policy requirements), or changes to the carbon budgets which are known to be estimates only. As described above, the carbon budgets are developed based on CO2 only however the comparison below conservatively considers all GHG emissions from the project normalised as CO2-e, the vast majority of which are CO2. Emissions associated with onshore processing of Scarborough gas will also be subject to GHG frameworks which are expected to reduce the estimate from the gross figure used, such as the Federal SGM.

20    That analysis is set out at Table 6-25 (page 358):

21    The analysis continues:

Assuming the scenario in which all GHG emissions associated with the Scarborough project are additive to global GHG gas concentrations, which they may not be, the project’s contribution to the global carbon budget required to meet the goals of the Paris Agreement is de minimis.

22    There is then a statement that “climate science is a rapidly evolving field in which new observations continue to deepen understanding of the current and potential impacts of global warming, and the possible pathways for mitigation and adaptation”. Extensive reference is then made to the CSIRO State of the Climate 2024 Report and the IPCC Sixth Assessment Report (2023). None of the science is disputed. The overall significance is assessed as (page 362):

Climate change impacts cannot be attributed to any one activity as they are instead the result of global GHG emissions, minus global GHG sinks, that have accumulated in the atmosphere since the industrial revolution started. They do not take into account the net impact of each project or activity. Even discounting the role gas can play towards customer commitments and plans to decarbonise through the energy transition, emissions associated with the project are expected to have a de minimis impact to global carbon budgets estimated to meet the goals of the Paris Agreement.

23    In tabular form the EP seeks to demonstrate that the environmental impacts and risks will be reduced to as low as reasonably practicable (the EP acronym is ALARP). For Scope 3 GHG emissions the analysis is (from page 365):

24    The EP from pages 374 to 378, provides an analysis of and conclusion that GHG emissions will be as low as reasonably practicable. It includes:

Discussion of ALARP

Risk Based Analysis

Application of Woodside’s Risk Management Procedures, implementation of the Emissions and Energy Management Procedure and Production Optimisation and Opportunity Management Procedure reduces GHG emissions risk to ALARP in design and operations. A range of controls have been considered for both direct and indirect emissions in design and project execution phase, and a system of continual review and improvement is in place for ongoing operations.

Societal Values

Consultation was undertaken for this program to identify the views and concerns of relevant stakeholders, as described in Section 5 and Appendix F Consultation Summary Tables. Some stakeholders expressed strong views on GHG emissions associated with the Scarborough project, which were responded to accordingly. This included provision of further information on direct and indirect GHG emissions, discussion of controls and Woodside’s corporate position, targets and controls via the 2024 Climate Transition Action Plan and 2023 Progress Report.

ALARP Statement:

On the basis of the environmental risk assessment outcomes and use of the relevant tools appropriate to the decision type (i.e. Decision type A and B for direct and indirect emissions respectively), Woodside considers the adopted controls appropriate to manage GHG emissions from the Scarborough facility and indirect emissions sources that Woodside may practicably influence, during the five year term of this EP. The adopted controls meet legislative requirements.

Indirect GHG emissions from onshore processing at PLP are managed under the Pluto Greenhouse Gas Abatement Program, and at Karratha Gas Plant are managed under the NWS Project Extension Greenhouse Gas Management Plan. These require comprehensive reporting and independent auditing of emissions and emission intensities to ensure compliance with contemporary greenhouse gas standards and to maintain transparency and accountability. Greenhouse gas data available to Woodside will be used to verify the onshore hydrocarbon processing estimates once available. These facilities are also subject to complying with the Federal Safeguarding Mechanism (SGM) to manage net emissions under the scheme in line with Australia’s emission reduction targets of 43% below 2005 levels by 2030 and net zero by 2050.

Woodside is implementing programs at a corporate level to manage indirect emissions associated with customer use of gas from the Scarborough project.

As no reasonable additional/alternative controls were identified that would further reduce the impacts without grossly disproportionate cost/sacrifice, GHG emissions from the Scarborough facility and indirect emissions sources that Woodside may practicably influence are considered ALARP.

…

Indirect GHG emissions associated with Scarborough will be managed to ALARP and an acceptable level through the implementation of the controls detailed below.

25    In Part 2 of the EP there is an explanation of the Risk Management Procedures. The EP proceeds on the basis that the principles and guidelines for risk management identified in ISO 31000: 2018 Risk Management Guidelines meet the requirements of the Regulations (page 34). Additionally, Woodside has developed internal risk management procedures consistent with the principles set out in the Guidance on Risk Related Decision Making (Oil and Gas UK, 2014) (page 35). The framework is then discussed, including risk classification as Decision Types A, B or C. Type A risks are well understood and reflect good industry practice. Type B risks involve greater uncertainty and complexity and include higher order risks. Such risks sit outside established practice and require more detailed risk assessments to conclude that risk is reduced to as low as reasonably practicable. Type C risks are typically significant and relate to environmental performance. Such risks involve greater complexity and uncertainty and require implementation of the precautionary principle. There is a risk of significant environmental impact.

26    It will be noticed from the above summary that the EP applies a Type A and Type B risk assessment to direct and indirect GHG emissions. DEA does not contend that, in accepting that part of the analysis, NOPSEMA made a legally unreasonable or irrational decision.

27    The corresponding control mechanisms assume significance to the issues in this proceeding, as do others, which form the basis for Woodside’s demonstration that it achieves as low as reasonably practicable, including the following statements (page 375, 378):

GHG emissions are a global concern, and as such Woodside has undertaken an impact assessment of GHG associated with the Scarborough facility and identified key measures to manage GHG emissions to an acceptable level.

…

Indirect GHG emissions associated with Scarborough are managed to an acceptable level by meeting (where they exist) legislative requirements, industry codes and standards, applicable company requirements, and industry guidelines, and these have been adopted as key controls.

Even discounting the role gas can play towards customer commitments and plans to decarbonise through the energy transition, emissions associated with the project are negligible in the context of existing and future predicted global GHG emissions. As described above, even in the hypothetical scenario when taken to be wholly additive, the GHG emissions created by and associated with the project represent a de minimis contribution to the carbon budgets estimated to achieve the goals of the Paris Agreement. Further, the project will comply with the relevant Australian carbon management framework, for example the Federal SGM. The impact on national and international emission reduction targets is therefore negligible and acceptable.

28    The control measures in issue are presented in tabular form as respectively environmental performance outcomes, controls, environmental performance standards and measurement criteria. Relevantly (from page 380):

29    The footnotes state:

76. Scope 3 targets are subject to commercial arrangements, commercial feasibility, regulatory and Joint Venture approvals, and third-party activities (which may or may not proceed). Individual investment decisions are subject to Woodside’s investment targets. Not guidance. Potentially includes both organic and inorganic investment. Timing refers to financial investment decision, not start-up/operations.

77. Includes pre-RFSU spend on new energy products and lower carbon services that can help our customers decarbonise by using these products and services. It is not used to fund reductions of Woodside’s net equity Scope 1 and Scope 2 emissions which are managed separately through asset decarbonisation plans.

78. Includes binding and non-binding opportunities in the portfolio, subject to commercial arrangements, commercial feasibility, regulatory and Joint Venture approvals, and third-party activities (which may or may not proceed). Individual investment decisions are subject to Woodside’s investment targets. Not guidance.

Statutory Scheme

30    The Regulations are an instrument made under the Storage Act and commence with a statement of objects at s 4:

The object of this instrument is to ensure that any petroleum activity or greenhouse gas activity carried out in an offshore area is:

(a)    carried out in a manner consistent with the principles of ecologically sustainable development set out in section 3A of the EPBC Act; and

(b)    carried out in a manner by which the environmental impacts and risks of the activity will be reduced to as low as reasonably practicable; and

(c)    carried out in a manner by which the environmental impacts and risks of the activity will be of an acceptable level.

31    The reference in (a) to s 3A of the EPBC Act is:

Principles of ecologically sustainable development

The following principles are principles of ecologically sustainable development:

(a)    decision-making processes should effectively integrate both long-term and short-term economic, environmental, social and equitable considerations;

(b)    if there are threats of serious or irreversible environmental damage, lack of full scientific certainty should not be used as a reason for postponing measures to prevent environmental degradation;

(c)    the principle of inter-generational equity–that the present generation should ensure that the health, diversity and productivity of the environment is maintained or enhanced for the benefit of future generations;

(d)    the conservation of biological diversity and ecological integrity should be a fundamental consideration in decision-making;

(e)    improved valuation, pricing and incentive mechanisms should be promoted.

32    Part 4 is concerned with the requirements for and content of an environment plan. A titleholder commits an offence of strict liability if it undertakes an activity under the title and an environment plan is not in force for the activity: s 17. It is also an offence of strict liability to undertake the activity in a way that is contrary to the environment plan: s 18. Division 2, s 20, commences with:

This Division sets out the required contents of an environment plan for an activity under a title.

33    Section 21 requires an environmental assessment to address a number of topics: description of the activity, description of the environment, requirements of an environment plan, evaluation of environmental impacts and risks and environmental performance outcomes and standards. Subclauses (5), (6) and (7) are in issue, providing respectively:

(5)    The environment plan must include:

(a)     details of the environmental impacts and risks of the activity; and

(b)     an evaluation of all the environmental impacts and risks, appropriate to the nature and scale of each impact or risk; and

(c)    details of the control measures that will be used to reduce the impacts and risks of the activity to as low as reasonably practicable and an acceptable level.

(6)    To avoid doubt, the evaluation mentioned in paragraph (5)(b) must evaluate all of the environmental impacts and risks arising directly or indirectly from:

(a)    all operations of the activity; and

(b)     any potential emergency conditions, whether resulting from an accident or any other cause.

Environmental performance outcomes and standards

(7)    The environment plan must:

(a)    set environmental performance standards for the control measures identified under paragraph (5)(c); and

(b)    set out the environmental performance outcomes for the activity against which the performance of the titleholder in protecting the environment is to be measured; and

(c)    include measurement criteria that the titleholder will use to determine whether each environmental performance outcome and environmental performance standard is being met.

34    The definitions central to the content of these requirements are respectively:

control measure means a system, an item of equipment, a person or a procedure, that is used as a basis for managing environmental impacts and risks of an activity.

environment means:

(a)    ecosystems and their constituent parts, including people and communities; and

(b)    natural and physical resources; and

(c)    the qualities and characteristics of locations, places and areas; and

(d)    the heritage value of places;

and includes the social, economic and cultural features of the matters mentioned in paragraphs (a), (b), (c) and (d).

environmental impact, of an activity, means any change to the environment, whether adverse or beneficial, that wholly or partially results from the activity.

environmental management system, for an activity, includes the responsibilities, practices, processes and resources used to manage the environmental aspects of the activity.

environmental performance means the performance of a titleholder in relation to the environmental performance outcomes and environmental performance standards mentioned in an environment plan.

environmental performance outcome, for an activity, means a measurable level of performance required for the management of environmental aspects of the activity to ensure that environmental impacts and risks of the activity will be of an acceptable level.

environmental performance standard means a statement of the performance required of a control measure.

35    There is no definition of acceptable or of as low as reasonably practicable.

36    Section 22 requires an environment plan to contain an implementation strategy comprising: environmental management system, responsibilities of employees and contractors, monitoring and reporting, oil pollution emergency response, testing oil pollution emergency response arrangements and consultation and compliance. At issue in this proceeding is the environmental management system at subclause (2):

(2)    The implementation strategy must contain a description of the environmental management system for the activity, including specific measures to be used to ensure that, for the duration of the activity:

(a)    the environmental impacts and risks of the activity continue to be identified and reduced to a level that is as low as reasonably practicable; and

(b)    control measures detailed in the environment plan are effective in reducing the environmental impacts and risks of the activity to as low as reasonably practicable and an acceptable level; and

(c)    environmental performance outcomes and environmental performance standards in the environment plan are being met.

37    In the course of preparing an environment plan a titleholder must consult with specified agencies and persons (s 25) including (1)(d) and (e):

(d)    a person or organisation whose functions, interests or activities may be affected by the activities to be carried out under the environment plan;

(e)    any other person or organisation that the titleholder considers relevant.

38    That obligation extends to giving each relevant person “sufficient information to allow the relevant person to make an informed assessment of the possible consequences of the activity on the functions, interests or activities of the relevant person” and relevant persons must be allowed a reasonable period for the consultation: ss 25(2) and (3). When finalised, an environment plan is submitted to NOPSEMA: s 26. As I have noted, the EP in issue is revision 3, which engaged the decision power at s 33(7):

(7)     If the titleholder resubmits the plan by the day referred to in paragraph (5)(c), or a later date agreed by NOPSEMA, then, subject to section 16, NOPSEMA must:

(a)    if NOPSEMA is reasonably satisfied that the environment plan meets the environment plan acceptance criteria — decide to accept the plan; or

(b)    if NOPSEMA is still not reasonably satisfied that the environment plan meets the environment plan acceptance criteria — decide to:

(i)    give the titleholder a further notice under subsection (5) of this section; or

(ii)    accept the plan in part (for a particular stage of the activity), or subject to limitations or conditions applying to operations for the activity, or both; or

(iii)    refuse to accept the plan.

39    The criteria for acceptance of an environment plan is set out at s 34:

For the purposes of section 33, the criteria for acceptance of an environment plan (the environment plan acceptance criteria) for an activity are that the plan:

(a)    is appropriate for the nature and scale of the activity; and

(b)    demonstrates that the environmental impacts and risks of the activity will be reduced to as low as reasonably practicable; and

(c)    demonstrates that the environmental impacts and risks of the activity will be of an acceptable level; and

(d)    provides for appropriate environmental performance outcomes, environmental performance standards and measurement criteria; and

(e)    includes an appropriate implementation strategy and monitoring, recording and reporting arrangements; and

(f)    does not involve the activity or part of the activity, other than arrangements for environmental monitoring or for responding to an emergency, being undertaken in any part of a declared World Heritage property; and

(g)    demonstrates that:

(i)    the titleholder has carried out the consultations required by section 25; and

(ii)    the measures (if any) that the titleholder has adopted, or proposes to adopt, because of the consultations are appropriate; and

(h)    complies with the Act, this instrument and any other regulations made under the Act.

40    These are the central provisions at issue in this proceeding. There are some others that were referenced in argument, the effect of which may be summarised. Division 5 is concerned with revision of an environment plan in defined circumstances. They include submission by the titleholder upon the occurrence of any significant new environmental impact or risk or significant increase in an existing environmental impact or risk (s 39), revision at the request of NOPSEMA, without limitation as to the circumstances when the request may be made (s 40), and revision at the end of each five year period (s 41). Division 6 confers power for NOPSEMA by written notice to the titleholder to withdraw acceptance of an environment plan, including if it determines that the environmental performance outcomes and environmental performance standards in the plan have not been met: s 43(1)(d).

Relevance of Scope 3 GHG emissions to the functions of NOPSEMA

41    It will have been noticed that the Regulations require an environment plan to include details of the environmental impacts and risks of the activity, an evaluation of those impacts and risks appropriate to the nature and scale of each impact or risk and which must extend to evaluating all of the environmental impacts and risks “arising directly or indirectly from” from all operations of the activity: ss 21(5) and (6).

42    The EP proceeds on the basis that Scope 3 GHG emissions emitted by consumption of gas extracted and processed by the activity is an indirect impact and risk to the environment. Table 6-22 (set out above) distinguishes between direct emissions within the control of Woodside as well as Scope 3 GHG emissions not within its control: transport of products, regasification, distribution and end use. Scope 3 GHG emissions are the largest source of GHG emissions associated with the project by a very considerable margin.

43    Mr Young KC for DEA submits that s 21(6) required the EP to address Scope 3 GHG emissions as indirect environmental impacts and risks from the operation of the activity. In oral submissions when I put that proposition to Mr Clothier KC for Woodside, he accepted that for the purposes of this proceeding, the EP treats them as indirect impacts and that I should proceed on that basis. Mr Lenehan SC for NOPESMA did not submit to the contrary, consistently with the statement of reasons at [24(c)(iii)(C), (D) and (E)].

Content of the Decision

44    Although DEA eschews the reasons of the delegate, because on its case the EP did not comply with mandatory requirements of the Regulations and therefore it was not open to NOPSEMA to be reasonably satisfied as required by s 33(7), it is necessary to understand the delegate’s reasons as contextual and on the arguments of Woodside and NOPSEMA they assume dispositive importance.

45    In the statement of reasons, the delegate relevantly proceeded sequentially through s 34 as follows.

46    As to subparagraph (a), the delegate found that the EP is appropriate to the nature and scale of the activity. More particularly concerning GHG emissions they found at [24(c)]:

i.    The EP includes details of the impacts and risks that are relevant to the GHG emissions from the activity and provides an evaluation that is appropriate to the nature and scale of that impact and risk. This titleholder has applied more detail and rigour to the evaluation of higher order impacts and risks and to receptors in the Australian environment that are most vulnerable to impacts from climate change.

ii.    The EP applies more detail and rigour to the impact and risk assessments where there is a higher degree of scientific uncertainly in predictions of impacts (i.e. in the potential future emissions and climate change scenarios that may arise) and risks and/or severity of potential consequence of impacts and risks. Information from authoritative sources such as the IEA and IPCC has primarily been relied upon in developing the impact evaluation and analysis of the project's emissions; and in describing the potential future impacts and risks.

iii.    The EP (Section 6.7.6 and Table 6-5) contextualises the estimated emissions from the activity against current established Australian national and global emissions budgets that are consistent with the objectives of the Paris Agreement and with Australia’s Nationally Determined Contributions. These have been derived from authoritative sources such as the Australian National Emissions Projections 2024, the IPCC's Sixth Assessment Report, and the Global Carbon Budget 2024. In this respect:

A.     The EP estimates that the total lifecycle emissions from the Scarborough Project (an estimated 878 million tonnes CO2-equivalent) are expected to comprise approximately 0.37% of the estimated remaining global carbon budget (in a scenario projected to limit global warming to 1.5°C, consistent with the Paris Agreement objectives).

B.     It also estimates that emissions occurring within Australia would comprise approximately 0.9% of the projected remaining national emissions budget to 2030.

C.    I noted that the majority of the emissions arising from the Project occur in jurisdictions onshore in Australia (e.g. processing) or overseas (in products use). The legislative and international frameworks that govern these emissions are administered in Australia by State (e.g. WA EPA) and Federal (e.g. Clean Energy Regulator) regulators in delivering Australia’s Nationally Determined Contributions (NDCs) under the Paris Agreement via the Safeguard Mechanism and other relevant legislation and policy. Overseas, equivalent regulators administer the legislative frameworks which enact the NDCs of those countries under their own Paris Agreement commitments.

D.    While there is some uncertainty inherent in the efficacy and sufficiency of NDCs and their implementation with respect to achieving the objectives of the Paris Agreement, it is assumed that the frameworks in place and being administered by appropriate regulators are able to, and must, be relied upon in evaluating the impacts, risks and control measures for this activity. It is noted that mechanisms exist nationally (via advice to government and other measures as described in the Climate Change Act 2022) and internationally (via NDC reporting to the Global Stocktake, the annual Conference of the Parties, and other measures as enacted via the Paris Agreement and the UNFCCC) to evaluate progress against the objectives of the Paris Agreement and to recommend changes as required. It is considered that this national and international framework must be relied upon to reduce emissions, including those from the Scarborough Project; and that the control measures presented in the EP must be, and are, consistent with those frameworks.

E.     Advice from government departments (Department of Climate Change, Energy, the Environment and Water [DCCEEW] and the Clean Energy Regulator [CER]) confirmed that emissions from the Scarborough Project that occur in Australia are covered by Australia’s NDCs and mechanisms to support their achievement such as the Safeguard Mechanism. The projected emissions from the project have been included in the 2024 National Emissions Projections, which show that the Safeguard emissions reduction targets are expected to be met. I received advice from DCCEEW that it is unlikely that the Project will affect Australia’s ability to meet its target to reduce emissions by 43% below 2005 levels by 2030.

iv.    I also noted that the EP (Section 6.7.6) describes multiple potential future gas demand scenarios from authoritative sources such as the International Energy Agency to reflect the uncertainty associated with energy market prediction. In addition, while describing the theoretical potential for gas to contribute to the displacement of more carbon-intensive energy sources, the EP also acknowledges the uncertainty associated with this expectation and includes measures to monitor and reassess whether this potential has been realises (e.g. Control 6.20).

47    As to subparagraph (b), the delegate found in part (from [29]):

Section 2 and 6 of the EP describes the process applied to evaluate whether impacts and risks are reduced to ALARP. A clear, systematic, and reproducible process for the evaluation of all impacts and risks is outlined, which details the control measures to be implemented, including an evaluation of additional potential control measures, and justifies why control measures are either adopted or rejected (with well-reasoned and supported conclusions) to demonstrate that the environmental impacts and risks of the activity will be reduced to ALARP. I was reasonably satisfied that the evaluation of the adoption of control measures is based on environmental benefits and the consideration of the feasibility and cost/sacrifice of implementation to demonstrate that impacts and risks will be reduced to ALARP.

…

The evaluation of impacts and risks has informed the selection of suitable control measures to either reduce the severity of the consequence or likelihood of impacts and risks. The control measures outlined in Section 6 of the EP are sufficiently detailed to demonstrate they will be effective in reducing the impacts and risks for the duration of the activity. The level of detail in the ALARP assessment is matched to the nature and scale of the potential impacts and risks. The EP provided a reasonable demonstration, that there are no other practical control measures that could reasonably be taken to reduce impacts and risks any further.

…

There is sufficient detail of the control measures to demonstrate that the measures will be effective in reducing impacts and risks to ALARP for the duration of the EP:

A.     All control measures evaluated are described in the demonstration of ALARP table, and those adopted have been detailed in the tables listing EPOs, EPS and MC alongside their relevant EPS. Where applicable, further details of processes have been provided in the implementation strategy for the EP (Section 7).

B.    Sufficient details of the control measures are provided such that they can be implemented, compliance monitoring can occur, and their effectiveness can be evaluated. This detail is provided through the combination of information described in control measures, EPS, and the implementation strategy where relevant.

C.     Each control measure has been clearly linked to corresponding EPS and MC in Section 6.7.6, with sufficient detail to provide a level of performance that can be monitored for effectiveness.

The EP commits (through the processes described in the implementation strategy, especially Section 7.2.4 and 7.5) to revisiting the evaluation of control feasibility over the life of the activity to identify controls that may become reasonably practicable in future.

48    As to subparagraph (c), the delegate found in part (from [35]):

I was reasonably satisfied the EP demonstrated that the environmental impacts and risks of the activity will be of an acceptable level. This is because specifically, I found that:

a.    Section 6 of the EP applies a clear, systematic, and reproducible process for demonstrating how environmental risks will be of an acceptable level and the statements and conclusions drawn by the titleholder in the EP have been sufficiently supported with scientific literature. This process is commensurate with the nature and scale of the activity and the severity of its impacts and risks with more effort and rigour applied to evaluations where there is a higher degree of scientific uncertainty in predictions of impacts and risks and/or severity of potential consequence of impacts and risks.

b.    Sections 2 and 6 of the EP describe the process undertaken by the titleholder to determine acceptable levels of impact and risk for the activity. The titleholder considered internal and external policy settings, feedback received by the titleholder during relevant persons consultation, relevant legislative requirements, applicable plans of management, recovery plans, conservation advice and other guidance for matters protected under the EPBC Act, and the principles of ecologically sustainable development as defined in the EPBC Act.

i.    In specific relation to GHG emissions, Section 6.7.6 and Table 6-25 include consideration of the relevant requirements that apply to GHG emissions from the activity, including those internal and external to Woodside, and the principles of ESD.

…

f.     The titleholder has identified and addressed areas of uncertainty in the impact and risk evaluations (Section 6). Predictions of environmental impact and risk are suitably conservative, supported by appropriate modelling, or subject to measures to validate assumptions and outcomes. Examples to support this reasoning include:…

iii.     In specific relation to GHG emissions:

A.    The EP impact evaluation (Section 6.7.6) is conducted on the assumption that all emissions predicted for the lifecycle of the activity will be realised; and does not account for potential future emissions reduction projects through technology or operational refinements. It also does not account for the expected emissions trajectory decline that will be required through compliance with the Safeguard Mechanism, or potential future policy requirements that may apply to emissions from the activity.

B.    The EP (Section 6.7.6) contains emissions performance monitoring measures to review predictions against realised emissions; including validation of design controls and onshore processing emissions.

C.    The EP contains specific controls (e.g. C 6.20) which will assess areas of uncertainty in relation to the stated potential of gas to displace more carbon-intensive energy sources on an ongoing basis and commits to adaptive management measures in the event that this scenario does not occur. This is supported by suitable performance standards and measurement criteria.

D.    The EP contains specific measurement criteria (e.g. MC 6.17.1 and MC 6.18.1) to verify that actions are not just implemented, but effective, in contributing towards meeting the EPOs and acceptable levels.

49    As to subparagraph (d), the delegate found in part (from [44]):

I found the EP provided appropriate EPOs, which I considered:

a.    Were relevant and addressed all the identified environmental impacts and risks for the activity.

b.    When read in conjunction with associated EPSs, established measurable levels for management of environmental aspects of the activity.

c.    When read in conjunction with the relevant environmental impact/risk evaluation and adopted management measures, demonstrated that the environmental impacts and risks will be managed to an acceptable level and as low as reasonably practicable.

d.    Are consistent with the principles of ESD and relevant requirements (such as plans of management, recovery plans, conservation advice and other guidance for matters protected under the EPBC Act), considering items (a) and (c) above).
…

f.    In relation to GHG emissions:

i.    The EP includes EPOs (EPO 3, 10, 11, 12, and 29) that are clear, unambiguous and appropriately address all identified impacts and risks relevant to the activity, including the direct and indirect emissions sources identified in the EP. The EPOs appropriately reflect the magnitude of identified emissions sources and are established with reference to the degree of operational control held by the titleholder over those sources; which is a reasonable and practicable approach,

ii.    The EPOs demonstrate that impacts and risks will be managed to an acceptable level and reflect a level of environmental performance for management that is achievable. These are consistent with the Australian GHG emissions management frameworks, including the requirements of the NGER Act and the Safeguard Mechanism.

50    Finally, as relevant to this proceeding, as to subparagraph (e), the delegate found in part (from [48]):

I was satisfied that the implementation strategy contains an adequate environmental management system (EMS) for the activity. The implementation strategy outlined in Section 1.9 and Section 7 provides a range of systems, practices and processes (outlined in further detail below) which I was satisfied provided for all impacts and risks to continue to be managed to ALARP and acceptable levels for the duration of the activity.

…

In specific relation to GHG emissions, I am satisfied that the implementation strategy is appropriate for the nature and scale of the activity and the GHG emissions arising from it. This is because it contains specific processes and measures which support implementation of the GHG emissions-relevant controls, and which will be used to continuously manage emissions to ALARP and acceptable levels for the life of the activity. Key features relevant to GHG emissions include:

…

b.    The EP also describes the annual process for identification and implementation of emissions reduction opportunities on an ongoing basis (Section 7.2.4.3), which will be used to achieve continuous improvement and reduction to ALARP. The process is described in sufficient detail to assure its implementation; and provides clear commitment to reviewing opportunities for improvement over time.

…

d.    In addition, specific measures for indirect GHG emissions management are included (Sections 6.7.6 and 7.5.2) which include the adoption of a corporate emissions abatement target to drive continuous improvement and reduction to ALARP. This is supported by the measures for review and improvement described earlier in this report.

Core submission of DEA

51    The Amended Originating Application sets out 16 detailed, in part overlapping, grounds of review supported by particulars. The essential contentions may be grouped and some grounds put to one side as derivative on the success of others.

52    Standing back from the intense focus of the grounds for a moment, the fundamental complaint is that Scope 3 GHG emissions are an indirect impact of the activity, the EP was required to provide for appropriate environmental performance outcomes (s 34(d)) and to have the statutory character of an environmental performance outcome, the acceptable level of impact must be identified and defined. The EP fails to do so for Scope 3 GHG emissions and therefore it was not open to NOPSEMA to be reasonably satisfied that the EP met the environment plan acceptance criteria: s 33(7)(a).

53    Lurking behind that contention are five “key decision points” as identified by Mr Young in oral submissions:

(1)    Global GHG concentrations are an impact, not a potential impact.

(2)    As an impact, the GHG concentrations must be evaluated. The content of the evaluation is set out at ss 21(5) and (6), including by the formulation of environmental performance outcomes and control measures.

(3)    Woodside did not, and has not, defined the acceptable level of Scope 3 GHG concentrations (by which is meant emissions).

(4)    Control measures must actually exist in order to be capable of being said to be used to manage environmental impacts and risks. Unspecified additional measures to be taken in the future cannot be said to be control measures.

(5)    Environmental performance outcomes and environmental performance standards are concerned with the environmental outcomes and environmental performance, not about corporate outcomes or corporate performance. They are standards and outcomes set by reference to the environment.

54    With that understanding, the grounds are conveniently grouped as follows. The inadequacy of various control measures is addressed in grounds 1, 2, 6, 7, 11 and 12. Section 21(5) requires an environment plan to include details of the control measures that will be used to reduce the impacts and risks of the activity to as low as reasonably practicable and to an acceptable level and s 21(7) requires that the environment plan must set environmental performance standards for the control measures.

55    The inadequacy of the environmental performance standards is addressed in grounds 3, 8 and 13.

56    Grounds 4 and 9 contend that environmental performance outcomes EPO 11 and EPO 29 fail to comply with the requirement to set out the environmental performance outcomes for the activity by including measurement criteria to determine whether each environmental performance outcome is being met, contrary to s 21(7).

57    Grounds 5, 10 and 14 contend that the EP fails to establish measurement criteria that Woodside will use to determine whether each environmental performance outcome and environmental performance standard is being met, contrary to s 21(7).

58    That leaves grounds 15 and 16 which are parasitic on success of one or more of the prior grounds. Ground 15 is a catchall contention that the EP did not provide for appropriate environmental performance outcomes, environmental performance standards and measurement criteria concerning the environmental impacts and risks of GHG emissions because it did not satisfy the requirements for environmental performance outcomes, environmental performance standards and measurement criteria. Ground 16 contends that the decision of NOPSEMA was neither final nor certain. The point is: if a control measure leaves for later decision and determination by Woodside an important aspect of what measure will be applied to demonstrate that the environmental impacts and risks of GHG emissions will be reduced to as low as reasonably practicable and will be of an acceptable level, then it lacks legal certainty. DEA accepts that if the preceding grounds fail, grounds 15 and 16 fall away and do not require separate consideration.

Standing: a preliminary issue

Submissions

59    The application is framed pursuant to s 5 of the ADJR Act and ss 39B(1) and(1A)(c) of the Judiciary Act. Woodside contends that DEA does not have standing. NOPSEMA makes no standing submission. Pursuant to the former, DEA must be a person aggrieved by the Decision and pursuant to the latter, there must be a matter arising under laws made by the Parliament.

60    I was extensively addressed by Woodside that the relevant test for standing in either case is as set out by Gibbs J in Australian Conservation Foundation v Commonwealth (1979) 146 CLR 493 at 527, expanding on the reference to special damage in Boyce v Paddington Borough Council [1903] 1 Ch. 109. His Honour said:

[R]eference to “special damage” cannot be limited to actual pecuniary loss, and the words “peculiar to himself” do not mean that the plaintiff, and no one else, must have suffered damage. However, the expression “special damage peculiar to himself” in my opinion should be regarded as equivalent in meaning to “having a special interest in the subject matter of the action”.

61    His Honour continued at 530:

A person is not interested within the meaning of the rule, unless he is likely to gain some advantage, other than the satisfaction of righting a wrong, upholding a principle or winning a contest, if his action succeeds or to suffer some disadvantage, other than a sense of grievance or a debt for costs, if his action fails.

62    However, as Gibbs CJ subsequently observed in Onus v Alcoa of Australia Ltd [1981] HCA 50; (1981) 149 CLR 27 at 36, Australian Conservation does not lay down an inflexible rule: “the question what is a sufficient interest will vary according to the nature of the subject matter of the litigation”.

63    More recently, in Forestry Corporation of New South Wales v South East Forest Rescue Incorporated [2025] HCA 15; (2025) 99 ALJR 794, the Court (Gageler CJ, Edelman, Steward, Jagot and Beech-Jones JJ) at [11] stated:

The treatment of standing to enforce public rights, duties or obligations as an aspect of the jurisdiction or the power to invoke the jurisdiction vested in the relevant court is consistent with standing being subsumed within the concept of a "matter" in Ch III of the Constitution. However, leaving aside any constitutional restraints, whether satisfaction of the first limb of Boyce v Paddington Borough Council or the second limb as reformulated by this Court is either sufficient or necessary for a litigant to have standing to commence and maintain proceedings to enforce public rights, duties or obligations is subject to a consideration of the statutory scheme creating and regulating those rights, duties or obligations.

64    The Constitutional requirement of matter has two elements: subject matter and a concrete or justiciable controversy: Hobart International Airport Pty Ltd v Clarence City Council [2022] HCA 5; (2022) 276 CLR 519 at [26]. There is no doubt that the first element is satisfied. The power of NOPSEMA to accept the EP is conferred by the Regulations and is constrained thereby. As to the second, “there can be no matter within the meaning of [ss 75 and 76 of the Constitution] unless there is some immediate right, duty or liability to be established by the determination of the Court”: Hobart at [29], citing Re Judiciary (1921) 29 CLR 257 at 265. This does not however, as demonstrated by Hobart, require that for declaratory relief an applicant must identify an immediate right, duty or liability to be secured in its favour. Why that is so was explained by Gageler and Gleeson JJ in Hobart at [65] and [69]:

Though the expression of standing has been variously in terms of a "sufficient interest", a "sufficient material interest", a "special interest" or a "real interest", the conception of standing developed through that body of case law has been consistent. That conception of standing has involved recognition that a person who does not claim to have a legal right or equitable interest to be vindicated by a declaration or other order that would resolve a controversy about a right or obligation may yet have a material interest in seeking the order. In this context, an interest will be "material" if the person "is likely to gain some advantage, other than the satisfaction of righting a wrong, upholding a principle or winning a contest, if [the order is made] or to suffer some disadvantage, other than a sense of grievance or a debt for costs, if [the order is not made]". Depending on the totality of the circumstances, the material interest that the person has in seeking the order may be sufficient to justify a court entertaining the proceeding in which the order is sought.

Where a person is shown to have a material interest in seeking a declaration or other order, considerations bearing on the public interest can contribute to the sufficiency of that material interest to justify a court entertaining the proceeding in which the order is sought. A weighty public interest consideration, where it is applicable, is that the person's interest is within the scope of interests sought to be protected or advanced by the exercise of a statutory power or executive authority through which the right or obligation in controversy has come into existence. Another weighty consideration, where it is applicable, is that a party by or against whom the right or obligation is held and against whom the declaration is sought is a public authority or an executive government, which "acts, or is supposed to act, not according to standards of private interest, but in the public interest".

65    In my view, DEA has standing in this proceeding by reference to: the overarching nature of what it does, its objects, activities and interests; the engagement by DEA in pursing those activities and interests in the subject matter of NOPSEMA’s decision (which has climate change ramifications); and DEA was recognised as a relevant person by Woodside for the purposes of s 25(1)(d). I explain why.

66    I find the following facts based on the unchallenged evidence of Ms Wylie, from uncontroversial documents in the court book, the statement of reasons and the EP.

67    As previously observed, DEA represents the interests of medical professionals who are at the front line of dealing with the adverse health impacts of climate change as an existential threat to the environment.

68    DEA’s Constitution at clause 2 lists objects of particular relevance to the relief it seeks: particularly, to conserve and restore the natural environment and to alert doctors and the public on the health effects of environmental degradation. In support of its objects, DEA undertakes a range of activities including giving evidence and making submissions to public bodies, such as the Australian Senate Environment and Communications Legislation Committee Inquiry into the Climate Change Amendment (Duty Of Care and Intergenerational Climate Equity) Bill 2023 and the Australian House of Representatives Standing Committee on Climate Change, Energy, Environment And Water inquiry into the transition to electric vehicles. It has developed climate change resources for medical professionals, such as the Hospital Sustainability Project Tracker, which has been incorporated into pilot programs in the Northern Territory by the Australian Commission on Safety and Quality in Health Care. It organises conferences and webinars and is consulted by various governments; an example being the inquiry into the National Health and Climate Strategy in 2023. DEA is a member of the Australian Government’s Climate and Health Expert Advisory Group.

69    DEA brings this proceeding in the public interest in that it contends that climate change, driven by GHG emissions, is a material threat to public health. In consequence it is concerned about the approval of projects that contribute or may contribute to the emission of GHG which has an observed relationship to adverse health impacts, physical and mental.

70    To these objects, DEA engaged with Woodside at an early stage in relation to the drafting of various iterations of environment plans for the activity. On 19 December 2023, DEA corresponded with Woodside about the project. It stated that its interests, functions and activities may be affected by the project and sought to be a consulted as a “relevant person” within s 25(1)(d) and or (e). In that correspondence DEA stated, inter alia:

[DEA] is an organisation of medical doctors that recognises the importance of protecting human health through care of the environment with a focus on the issues and events relevant in Western Australia.

[DEA] was formed in 2001, and are guided by the vision ‘Healthy Planet, Healthy People’.

Based on the latest evidence we demonstrate the important health benefits of clean air and water, biodiverse natural places, stable climates and sustainable health care systems.

We raise the alarm and act when public health is threatened by environmental problems such as climate change, air pollution, fossil fuel impacts and deforestation.

We are considered the leading medical organisation in Australia for providing accurate scientific information on the relationships between climate change, other environmental harms, and health.

We educate and alert colleagues, patients, the public, business and industry, and politicians to understand:

•    The requirement for a healthy natural environment for good human health.

•    The need to prevent and redress environmental degradation locally and globally.

•    The need for sustainable development that meets the needs of the present generation without compromising future generations.

•    The use of the best available scientific evidence as the basis for decisions, and the precautionary principle where the evidence is unclear.

[DEA] is active in areas of publication, education, submissions, research, and advocacy. For examples of these and further information on our interest and activities we refer you to our website https://dev.dea.org.au/.

71    Woodside did consult with DEA and accepted that it had demonstrated “an interest with the potential risks and impacts associated with planned activities in accordance with the intended outcome of consultation”: EP Appendix F, page 43. A detailed summary of the consultation between DEA and Woodside and the outcome is set out in Appendix F at pages 416 – 453 of the EP. The consultation occurred between August 2023 and October 2024. To an extent, the views of DEA were included in the EP as demonstrated in the table commencing at page 437. In particular there is this:

72    On those facts, it is surprising that Woodside now contends that DEA does not have standing to challenge the lawfulness of the outcome of the consultation process. Nonetheless, its submission must be addressed on merit.

73    Woodside submits that engaging in consultation, even making representations, is insufficient and places particular reliance on Australian Conservation at 525. However, Australian Conservation concerned a radically different statutory scheme pursuant to the Environment Protection (Impact of Proposals) Act 1974 (Cth) and certain administrative procedures through which the Australian Conservation Foundation (ACF) had made submissions about a proposal. The salient point made by Gibbs J at 525 was that by making a submission the ACF did not thereby acquire any right “to ensure that [its] comments were taken into account in the final environmental impact statement”. Immediately, the clear distinction with the scheme of the Regulations is apparent. Here, Woodside was bound by s 25 to consult in the preparation of the EP and to include within it a report as to the outcome of each consultation, including an assessment of the merit of any objection or claim about the adverse impact of the activity together with its response, or proposed response, if any: s 24. Understood in that way, the statutory scheme is the foundation for the justiciable controversy between DEA, Woodside and NOPSEMA. It is not necessary for DEA to have a legal or equitable right or interest if it has a material interest in declaratory relief that the EP is void and of no effect.

74    DEA is concerned with ensuring that the EP correctly addresses GHG emissions conformably with the obligation to evaluate all of the environmental impacts and risks arising directly or indirectly from the operation of the activity. The purpose of requiring the EP to address those risks is to ensure protection of the environment or, to use the language of the objects clause of the Regulations, to ensure that the activity is carried out consistently with the principles of ecologically sustainable development, in a manner by which the environmental impacts and risks will be reduced to as low as reasonably practicable and that such impacts and risks will be of an acceptable level.

75    A useful analogy is the decision of the Full Court in Animals’ Angels e.V. v Secretary, Department of Agriculture [2014] FCAFC 173; (2014) 228 FCR 35, Kenny, Robertson and Pagone JJ. That case concerned a challenge to a decision by the Secretary not to issue a show cause notice relating to the live export of livestock pursuant to the Australian Meat and Live-stock Industry Act 1997 (Cth). The proceeding was framed pursuant to the ADJR Act and the Judiciary Act. The primary judge concluded that the applicant lacked standing. The Full Court disagreed. The applicant established that it was an international organisation concerned with the adverse consequences of live animal exports. Its activities included monitoring the loading of live export shipments from Australia. It contended that the loading of a particular vessel contravened various Australian standards for the export of livestock. In correspondence it urged the Secretary to investigate the facts as presented and to act with a view to suspending the export licence, commencing with the issue of a show cause notice.

76    The applicant employed Australian investigators and had an Australian representative. Justices Kenny and Robertson extensively essayed the objects of the applicant, accepted its concerns about the transport and export of live animals for slaughter, accepted that it was a charitable organisation and that its funds were devoted for the long-term improvement of animal welfare and ultimately concluded at [120] that it had a special interest sufficient to establish standing:

Considering in turn each of the matters on which the primary judge relied for his conclusion in relation to the appellant’s standing: in our opinion the appellant does have sufficient presence in Australia; it has been recognised in Australia by the relevant department of the Commonwealth; it has devoted financial resources to animal welfare in Australia sufficient to found the activities to which we have referred; not a great weight attaches to the appellant’s status or standing with respect to other bodies concerned with animal welfare; the broader and global nature of the appellant’s objects or purposes do not derogate from the appellant’s engagement in Australia; the appellant’s Australian activities do intersect with the appellant’s objects or purposes; and the nature of the decision sought to be reviewed directly impacts on animal welfare, which is at the centre of the appellant’s objects or purposes.

77    It was not for the applicant to establish that its position was unique or that it had an interest greater than others who may have an interest: [121]. Although each case is fact-specific, there are obvious similarities with the present. DEA is a charitable organisation, its objects are consistent with the controversy that it seeks to have resolved in this proceeding, it was recognised and accepted by Woodside as a person required to be consulted pursuant to the Regulations and it engaged in an extensive process of consultation with Woodside. Woodside reported its consultation with DEA in the EP and, in certain respects, included provisions in the EP reflective of the consultation process. In doing so, it represented doctors and health professionals who are concerned about the adverse health impacts of environmental degradation caused by GHG emissions.

78    DEA is the representative of a large number of medical practitioners, students and allied professionals who are faced with treating the health impacts faced by humanity caused by climate change. It has engaged in activities relevant to its statutory objects, including, the promotion of awareness of the health impacts of climate change. Essentially DEA contends in this proceeding that, despite it being consulted, the EP does not comply with mandatory obligations and the statutory scheme to address GHG emissions and the link with adverse impacts on human health.

79    DEA seeks relief against a public body that is required to act in the public interest in its decision-making. The relief that it seeks is not hypothetical and resolution of whether the EP complies with the requirements of the statutory scheme is of real practical importance to the advancement of its objects, the interests of its members and whether the EP was validly accepted: cf Hobart at [36].

80    It follows that there is a matter within federal jurisdiction for the purposes of the relief sought pursuant to the Judiciary Act. It is unnecessary to separately consider whether DEA is a person aggrieved within the meaning of the ADJR Act.

The grounds

Overarching submissions

81    Before considering the individual review grounds, I commence with the fundamental contentions of DEA that underpin all the grounds. In very broad summary it is whether the regulatory scheme requires specificity and certainty as to the likely future environmental impacts and risks of the activity and, correspondingly, requires the formulation of precise environmental performance outcomes, environmental performance standards and control measures.

DEA submissions

82    The submissions commence with the interrelationship between environmental performance outcomes and control measures. This is the territory of grounds 1, 2, 6, 7, 11 and 12 (control measures) and 4 and 9 (environmental performance outcomes).

83    Section 34(d) provides that one criteria for acceptance of an environment plan is that it “provides for appropriate environmental performance outcomes, environmental performance standards and measurement criteria”. An environmental performance outcome for an activity is defined as meaning “a measurable level of performance required for the management of environmental aspects of the activity to ensure that environmental impacts and risks of the activity will be of an acceptable level”: s 5.

84    DEA submits that the essential defect of the EP is that it does not state or define an acceptable level of Scope 3 GHG emissions.

85    Mr Young developed that submission sequentially. The hierarchical structure of the statutory scheme commences with control measures, followed by environmental performance standards, environmental performance outcomes and then measurement criteria. Although s 33(7) turns on the evaluative judgment of NOPSEMA, nonetheless it could not be reasonably satisfied as a matter of law that the EP met the environment plan acceptance criteria if it misunderstood the acceptance criteria. The scheme at s 34 provides for the mandatory content of an environment plan (the environment plan acceptance criteria). Objectively, if the EP does not contain, demonstrate, provide for and include the matters at s 34(a)-(h), then it was not open to NOPSEMA to be reasonably satisfied as required by s 33(7).

86    In order for NOPSEMA to evaluate whether the EP satisfied the environment plan acceptance criteria it must be placed into the position whereby it is able to assess whether or not the environmental impacts and risks of the activity will be of an acceptable level. Accordingly, there must be a statement of what that acceptable level is, otherwise it is not possible to determine the measurable level of performance for an activity.

87    Emphasis is placed on Santos NA Barossa Pty Ltd v Tipakalippa [2022] FCAFC 193; (2022) 296 FCR 124 (Kenny, Mortimer and Lee JJ) which concerned an earlier version of cognate provisions in the Offshore Petroleum and Greenhouse Gas Storage (Environment) Regulations 2009 (Cth) (2009 Regulations). At [110], Kenny and Mortimer JJ crisply observed, by reference to numerous authorities, that to be reasonably satisfied “requires a state of satisfaction to be formed reasonably, rationally, and on a correct understanding of the law”.

88    Reliance is also placed on Cooper v National Offshore Petroleum Safety and Environmental Management Authority (No 2) [2023] FCA 1158 at [59] where Colvin J was concerned with the contention that NOPSEMA did not have power to make a decision to accept an environment plan where it was not reasonably satisfied that the consultation required by the statutory scheme had been undertaken. His Honour commenced his reasoning to resolve the issue by observing:

As was explained in Tipakalippa, the nature of the regulatory scheme is such that NOPSEMA is materially dependent upon the consultation undertaken by the titleholder in order to identify all environmental impacts and risks. The fundamental importance of the consultation is reflected in the requirement for the inclusion of the report as to the consultation in the environment plan that is submitted for acceptance by NOPSEMA. The separate opportunity in the case of a seismic or exploratory drilling plan for public submission is addressing a different concern. Further, that separate requirement does not apply to all activities and there is no basis for a different approach as to the significance of the consultation criteria in the case of seismic or exploratory drilling compared to other activities. Only upon completion of the consultation as required by criteria in reg 10A(g) and the provision of a report of that complete consultation does NOPSEMA have the foundation to evaluate whether the other criteria have been met. Regard to the other criteria in reg 10A reveals that, amongst other things, they require an understanding of the environmental impacts and risks in order to apply them. Those impacts and risks must be demonstrated to be as low as reasonably practicable and of an acceptable level. In addition, there must be appropriate environmental performance outcomes, environmental performance standards and measurement criteria. An evaluative judgment could not be formed as to those matters without knowing the environmental impacts and risks. Likewise, whether the implementation strategy and monitoring, recording and reporting arrangements are appropriate.

(emphasis added)

89    DEA places particular reliance on the emphasised part of his Honour’s reasons.

90    Turning to the content of the EP, Mr Young identified four “critical matters” in support of the submission. The first is Table 6.7.6 (page 335) which is concerned with routine and non-routine GHG emissions. It is unnecessary to reproduce the table. It discloses acceptance that Scope 3 GHG emissions from the activity will add to global atmospheric GHG concentrations. Further, the EP accepts that climate change is caused by the net global concentration of GHG, human caused climate change is a consequence of more than a century of GHG emissions and there is a near linear relationship between cumulative anthropogenic CO2 emissions and global warming. Thus, that relationship “becomes critical to an understanding whether there is or is not an environmental impact”.

91    Second, the EP proceeds (page 335) on the basis that global atmospheric GHG concentrations is the environmental impact in issue.

92    Third, indirect GHG emissions are proportional to total production from the activity (page 343).

93    Fourth, a fundamental premise of the EP is that gas is likely to displace reliance on more carbon intensive fuel sources (pages 355-357, the displacement assumption). This finds further elaboration in many parts of the EP. An illustration is (page 356):

Woodside’s analysis of the NDCs and key policy documents of key customer nations is that LNG has an important role in supporting their decarbonisation plans under the Paris Agreement. If the introduction of Scarborough LNG into the global energy market serves to reduce GHG emissions elsewhere, then in Woodside’s view the full volume of GHG emissions associated with the project are not expected to be additive to global GHG concentrations.

94    The criticism DEA makes of this reasoning is that, whilst accepting that GHG emissions from the activity will add to global atmospheric GHG emissions, no attempt is made in the EP to calculate what volume of emissions as indirect consequences of the activity are likely to be additive to global atmospheric GHG emissions. That is because of the failure of the EP to identify an acceptable level of emissions related to the indirect environmental impacts. The submission does not contend that the acceptable level must be a metric, but that would be one way of determining it. However, by whatever methodology is employed, the EP must identify and NOPSEMA must accept what level of Scope 3 GHG emissions is acceptable. Once that is done, NOPSEMA is able to make the evaluative assessments required by s 33(7).

95    It will have been noticed that there is an analysis in the EP which concludes that Scope 3 GHG emissions (162 MtCO2-e over five years or 778 MtCO2-e over the anticipated life of the project: Table 6-22), on the assumption that those emissions are entirely additive to global GHG concentrations, will have a negligible or de minimis impact on the global carbon budget required to meet the goals of the Paris Agreement: 0.33% (1.5°C) or 0.07% (2°C), which estimates are calculated at Table 6-25.

96    DEA characterises this as the alternative hypothetical scenario, which is not the case made in the EP and is not the case that NOPSEMA accepted. It submits that follows from the absence of any reference in the statement of reasons to the negligible or de minimis impact hypothetical. The submission continues that Woodside cannot “hide behind hypothetical scenarios and analysis to do what the Regulations require it to do directly”. When I questioned Mr Young whether it might be concluded that the impact assessments in Table 6-25 are by necessary implication the acceptable level of Scope 3 GHG emissions, his submission was that it must be expressed as the acceptable level because of the centrality of an acceptable level of impact to what measurable level of performance is required to ensure that the environmental impacts and risks of the activity will be acceptable. That is not a matter of implication where s 34(c) requires demonstration of that to the reasonable satisfaction of NOPSEMA. Mr Young maintained that submission despite that, on one view, EPO 29 does set an acceptable level of Scope 3 GHG emissions by providing that they “shall remain below 162 MtCO2-e over the 5-year operational span of this EP revision.”

97    Emphasis is next placed on how the EP addresses the environmental performance outcome for Scope 3 GHG emissions. Section 34(d) requires the EP to provide for “appropriate environmental performance outcomes”. For the activity proposed by Woodside, Table ES-0-1 of the OPP identifies climate change as an impact or risk of the proposed activity. What is absent from the EP is a measurable level of performance outcomes for the environmental impacts. That defect flows from the absence of a statement of what is the acceptable level of impact. Because performance must be a measurable level, the EP is required to include that measure. It is not said that the measure must be an ascertained quantifiable figure; rather there must be some mechanism by which the measurable level of performance can be ascertained.

98    It was submitted that this argument finds support in the Explanatory Statement to the Offshore Petroleum and Greenhouse Gas Storage Legislation Amendment (Environment Measures) Regulation 2014 (Cth), which introduced the definition of environmental performance outcome. In that document it was said at page 8:

The word “objective” has also been changed to “outcome” as the former was relatively vague and suggested a desirable or aspirational level of performance rather than a firm outcome that a titleholder commits to achieve in practice. Changing the term ensures that title holders are aware that they must set specific, measurable benchmarks for their environmental performance, that can be monitored and enable a determination as to whether those outcomes are being met.

99    The interrelationship between an acceptable impact level for the environmental risks of the activity with control measures, environmental performance standards and measurement criteria was next addressed. A control measure (relevantly for present purposes) means a system or procedure that “is used as a basis for managing environmental impacts and risks of an activity”. The submission is this requires that a control measure “must take a particular form, and have a clear relationship with the reduction of the environmental impacts or risks of a proposed activity, and must be capable of implementation and of being monitored for the effectiveness”.

100    CM 6.20 is one of the controls for EPO 29. It will be recalled that this provides that Woodside will undertake an annual review process “to address uncertainty in the impact assessment” including “reassessment of the role of gas in the energy transition and its potential to contribute to the net displacement of more carbon intensive energy sources”. This process may result in the “application of additional management measures if triggered by conclusion” that gas is not having the anticipated displacement effect. The corresponding environmental performance standards at 6.20.1 and 6.20.2 speak to an assessment of the role of gas in the energy transition process to be undertaken on an annual basis and that adaptive “management measures” will be implemented if gas is “not contributing to the global energy transition” or “displacing more carbon intensive fuels”.

101    The specific criticism that DEA makes is that, because the EP does not identify what the additional management measures are, it should be inferred that they do not exist and hence this control measure is no more than a statement that something might be done in the future. Control measures cannot be used as a basis for managing environmental impacts if no acceptable level of impact or risk is identified.

Woodside submissions

102    At the outset in oral submissions Mr Clothier for Woodside responded to the five key decision points identified by DEA. First, there is no controversy in the EP that there is a near linear relationship between cumulative anthropogenic CO2 emissions and global warming and, to the extent that Scope 3 GHG emissions would be additive, there would be some impact.

103    Second, whilst it is uncontroversial that environmental impacts and risks must be evaluated, (they were in the EP) there is no obligation to formulate an environmental performance outcome or a control measure in respect of each identified impact and risk. It is open to state in an EP that an impact or a risk does not require a control measure or a corresponding environmental performance outcome.

104    Third, the Regulations do not require an EP to state an acceptable level of impact for each environmental impact and risk. Alternatively, if there is such requirement, the EP complied for Scope 3 GHG emissions.

105    Fourth, control measures need not be prescriptive or rigid. There is nothing in the regulatory scheme which prohibits flexibility in the formulation of control measures; a process may be identified which in turn leads to reviews and implementation of new measures in the future. This flows from recognition that an environment plan is a point in time assessment.

106    Fifth, the Regulations apply to any petroleum activity or GHG activity carried out in an offshore area. The range and scale of activities is necessarily broad. Some activities will have little environmental impact, whilst others may have significant impacts. Impacts and risks may be capable of precise quantification and measurement in some cases, but not all. A fundamental flaw in the arguments for DEA is that they do not recognise that quantification and prescription may not be possible for all activities or all environmental impacts or risks. Similarly, some impacts and risks may not be susceptible to precise management measures.

107    Control measures include systems or procedures that are used as a basis for managing environmental impacts and risks. There is no requirement that a control measure be identified for each impact or risk. There is no prescribed process by which NOPSEMA must be satisfied an environment plan meets the environment plan acceptance criteria: the statutory scheme leaves this to the evaluative judgment of NOPSEMA.

108    The last point reflects the fact that impacts and risks may be numerous and diverse. To construe the statutory scheme as submitted by DEA is to place an unnecessary and unwarranted constraint upon the inherent flexibility for which the scheme provides. There is no basis in the text, context or purpose to apply a prescriptive construction. Environmental performance outcomes are only one component of what is required to manage the environmental impacts and risks of an activity. The requirement is to ensure that environmental risks and activities are determined against a measurable level of performance. It is in that context that the assessment of whether the management of such impacts and risks will be of an acceptable level is to be understood. There is no requirement that a measurable level of performance must be quantifiable at a point in time. The Regulations proceed on the basis that activities may be undertaken over an extended period. Necessarily predictions and assessments must be made as to future environmental impacts and risks. The future is necessarily uncertain. Where the primary consideration in this case is the impact of Scope 3 GHG emissions, the EP proceeds on the basis that total atmospheric GHG emissions cannot be calculated with certainty. The Regulations necessarily accept a level of uncertainty in predicting and estimating future environmental risks and impacts, which is inconsistent with any requirement that they must be quantified for something inherently incapable of such estimation.

109    Additionally, although there is no requirement to quantify an acceptable level for Scope 3 GHG emissions, the EP proceeds on the basis that such emissions are an indirect consequence of the activity and will be entirely additive to total GHG atmospheric concentrations. On that basis the EP proceeds on a worst-case scenario and concludes that an acceptable level of impact is anything below 162 MtCO2-e of Scope 3 GHG emissions over a period of five years as stated in EPO 29. There is nothing in the regulatory scheme which prohibits a titleholder from proceeding on that basis. The ultimate conclusion of the EP is that on the worst-case assumption the environmental impacts and risks of the activity will be reduced to as low as reasonably practicable and will be of an acceptable level. Particular emphasis is placed on the EP conclusion to that effect (at page 378, set out above).

NOPSEMA submissions

110    Mr Lenehan for NOPSEMA commenced his oral submissions by identifying that which he described as “the fundamental flaw” that lies at the heart of the DEA case. That is the intense focus on the statutory definitions without reading into the operative provisions and understanding the entirety of the scheme in context, having regard to the objects and purpose: Kelly v R [2004] HCA 12; (2004) 218 CLR 216 at [103], McHugh J.

111    There is an identifiable hierarchy in the regulatory scheme expressed at s 34. The environment plan must be appropriate for the nature and scale of the activity. Thereafter the first consideration is whether it demonstrates that the environmental impacts and risks will be reduced to as low as reasonably practicable. If that requirement is met, the next consideration is whether it demonstrates that the environmental impacts and risks will be of an acceptable level. Acceptability does not require specificity or quantification in demonstrating the reduction of impacts and risks to as low as reasonably practicable. Properly understood, an acceptable level is a label “for expressing a policy-based conclusion about what is, in fact, proposed under the plan”. So understood, this may involve quantification, but not necessarily so. The objects at s 4 acknowledge as much.

112    That, the submission continues, is the analysis of Charlesworth J in Munkara v Santos NA Barossa Pty Ltd (No 3) [2024] FCA 9 at [152] – [153], when considering the equivalent provision in the 2009 Regulations:

For the purposes of paragraph (a) of those objectives, the relevant principles are the “principles of ecologically sustainable development” set out in s 3A of the Environment Protection and Biodiversity Conservation Act 1999 (Cth) (EPBC Act). They include:

(b)     if there are threats of serious or irreversible environmental damage, lack of full scientific certainty should not be used as a reason for postponing measures to prevent environmental degradation;

(c)     the principle of inter-generational equity-that the present generation should ensure that the health, diversity and productivity of the environment is maintained or enhanced for the benefit of future generations;

Two things may be said of those principles. First, there is an objective to prevent harm, taking precedence over an approach that remediates or repairs harm once done. Secondly, there is a focus upon measures being taken to reduce, eliminate or minimise risk, even if it is not possible to scientifically determine the precise degree of risk, or the precise nature of the harm that might be caused should the risk transpire. That principle is one relating to threats of serious or irreversible environment damage. Paragraphs (b) and (c) of reg 3 reinforce those principles to an extent, however they also make it plain that the objective of the Regulations is not to eliminate or avoid risk altogether. The phrases “as low as reasonably practicable” and “acceptable level” are highly evaluative and context sensitive.

113    Like Woodside, NOPSEMA submits that future impacts and risks are necessarily attended with uncertainty and the impact of Scope 3 GHG emissions is a matter for evaluative and context sensitive assessment. Once that is understood, there is no warrant for a narrow reading of the provisions so as to import a requirement for prescription. Put another way, the regulatory scheme does not require a singular or quantifiable solution of how environmental impacts and risks of an activity will be reduced to as low as reasonably practicable or to an acceptable level. Each is a statement of evaluative conclusion left to assessment by NOPSEMA. Each ground of review invites interrogation into the merits of the Decision because they seek to inquire into and evaluate a fact specific decision.

114    More particularly, s 21(5)(c) does not provide that every item that is described in an environment plan as a control measure must meet the definition of a control measure. Rather, it speaks to the inclusion of “details of the control measures” that will be implemented. That does not impose an obligation for NOPSEMA to be satisfied that every item in the EP described as a control measure meets the definition. The scheme is designed to address the assessment of a range of petroleum and GHG generating activities, some of which may be complex and involve risks and impacts that are a matter of prediction and which cannot be precisely identified when the environment plan is prepared. Accordingly, it does not preclude the implementation of adaptive management strategies and measures to trigger future review and the implementation of further control measures.

115    There is no requirement that a control measure must take a particular form. Form concerns the sufficiency of the proposed control measure, which is a matter for NOPSEMA.

116    The grounds of review impermissibly invite this Court to examine the sufficiency (or adequacy) of each control measure, environmental performance standard, environmental performance outcome and management control and to substitute its view for that of NOPSEMA. By analogy with Tipakalippa v National Offshore Petroleum Safety and Environmental Management Authority (No 2) [2022] FCA 1121 at [267] – [269], Bromberg J, the question is not whether there has been compliance with each of the criteria in s 34 to the satisfaction of the Court, but whether as a subjective fact there has been compliance to the reasonable satisfaction of NOPSEMA.

117    There is no requirement expressed in the definition of control measure that management measures must exist at the time of completion of an environment plan. Properly understood a control measure extends to a system or a procedure, which may include future measures that are yet to be determined if other or new environmental impacts or risks are identified. Whilst specificity may be desirable, it is not necessary.

118    Similarly, there is no reason why an environmental performance outcome requires expression of a spectrum of performance and identification of a level of performance on that spectrum. Performance is capable of expression at a measurable level at a high level of abstraction. The EP frequently references management controls which is not a statutory concept, as distinct from control measures. It does so in the context of adaptive management measures or techniques. There is no prohibition in the regulatory scheme upon the implementation of types of adaptive measures to be determined at a future point in time as circumstances require.

119    There is nothing in the definition of control measure which precludes the identification of a target as a control measure. Having identified targets is perfectly consistent with the requirement to implement systems or procedures as a basis for managing environmental impacts and risks of an activity.

120    The undefined statutory concepts of acceptable level and as low as reasonably practicable operate as separate criteria. As low as reasonably practicable is capable of addressing what more could be done once an acceptable level is achieved. In this case, EPO 29 does not cease to be an environmental performance outcome simply because it does not specify how far below a stated value of Scope 3 GHG emissions will or will likely be achieved. On any view, the outcome will be achieved if Scope 3 GHG emissions are less than that amount. Though specificity and detail “may generally be desirable in control measures”, the degree of detail is context specific. That there may be alternative or better ways of identifying an acceptable level of impact is not to the point.

Consideration

121    The principles applicable to the construction of delegated legislation are no different from statutes: Disorganized Developments Pty Ltd v South Australia [2023] HCA 22; (2023) 97 ALJR 575 at [14]-[15], Kiefel CJ, Gageler, Gleeson and Jagot JJ.

122    The summary of overarching submissions identifies as the first premise of the argument for DEA a statutory obligation that Woodside must identify and define an acceptable level of Scope 3 GHG emissions. This finds clear expression in ground 9:

EPO 29: non-compliance with OPGGS Regulations (reg 34(h))

    The EP did not comply with the OPGGS Regulations, and so NOPSEMA could not have been reasonably satisfied that the EP did comply with the OPGGS Regulations, because:

(a)    one of the environmental performance outcomes identified by NOPSEMA in the Reasons and listed in the EP for control measure C 6.17 was EPO 29 which stated “Estimated GHG emissions associated with third party transport, regasification, distribution and end use shall remain below 162 MtCO2-e over 5 year operational span of this EP revision”;

(b)     the EP stated that estimated GHG emissions over the 5 year operational span of the EP from third party transport of products, regasification, distribution and end use were 162 MtCO2-e;

(c)     EPO 29 is not an “environmental performance outcome” as defined in the OPGGS Regulations as without stating by how many metric tonnes estimated GHG emissions would “remain below” the stated threshold, it cannot be said or concluded in respect of the EPO that it would “ensure that environmental impacts and risks of the activity will be of an acceptable level”.

123    Relatedly, ground 4 provides:

EPO 11: non-compliance with OPGGS Regulations (reg 34(h))

The EP did not comply with the OPGGS Regulations, and so NOSPEMA could not have been reasonably satisfied that the EP did comply with the OPGGS Regulations, because:

(a)    one of the “environmental performance outcomes” identified by NOPSEMA in the Reasons and listed in the EP for control measure C 6.20 was EPO 11 which stated “Woodside will support customers to reduce their GHG emissions”;

(b)    EPO 11 is not an “environmental performance outcome” as defined in the OPGGS Regulations as:

i.    it does not set a measurable level of performance;

ii.    it does not provide anything against which the performance of Woodside is to be measured.

124    If these pivotal contentions are incorrect, a number of the review grounds fall away as they are interdependent and may be shortly dealt with.

125    In my view, DEA incorrectly commences the construction task by focusing on the reference to an acceptable level of impact and risk within the definition of environmental performance outcome. As I explain, the regulatory scheme is interdependent, consisting of multiple components where what is an acceptable level of impact and risk is one outcome of a hierarchical evaluative assessment, of which there are multiple moving parts. An acceptable level of impact and risk is not mandated as the starting point of the analysis.

126    The Storage Act provides that NOPSEMA is responsible for a range of activities including such functions conferred on it by or under the Act “in relation to offshore petroleum environmental management in connection with operations in Commonwealth waters” and more generally “offshore petroleum environmental management in connection with operations in Commonwealth waters”: s 646(gg). The concept of offshore petroleum environmental management is defined at s 643 of the Storage Act as meaning “the prevention, management, mitigation or remediation of the environmental impacts of regulated operations that relate to: (a) the exploration for petroleum; or (b) the recovery, processing, storage, offloading or piped conveyance of petroleum”. As might be expected, petroleum is defined as including any naturally occurring hydrocarbon, whether in gaseous, liquid or solid state: s 7 of the Storage Act. These definitions when read with the broad objects of the Regulations (s 4) reveal the vast operational territory of the regulatory scheme which, according to the statement of objects, is to ensure that any petroleum activity or GHG activity carried out in an offshore area occurs in a manner consistent with the principles of ecologically sustainable development by which the environmental impacts and risks will be reduced to as low as reasonably practicable and will be of an acceptable level. A petroleum activity means operations or works in an offshore area undertaken for the purpose of exercising a right conferred on a petroleum titleholder or in discharging an obligation imposed on a petroleum titleholder by the Act or a legislative instrument: s 5. A titleholder must have in place an accepted environment plan for the undertaking of any activity under a title, and all operations must comply with its terms: ss 17 and 18. The reference in these provisions to an activity is significant. This means a petroleum activity or a GHG activity and includes, where the context permits, a proposed activity or any stage of an activity.

127    As the respondents correctly submit, the regulatory scheme is designed to apply to all types of petroleum activities or GHG activities, large or small, important or unimportant, and then to each stage of such activities. The regulatory scheme is designed to provide for a bespoke environment plan appropriate for the nature and scale of the activity and the consequential environmental impacts and risks. Prescription or other forms of mandated quantification for acceptable levels of managed environmental impacts and risks is not an express feature of the scheme and there is no support for an implication to that effect in the text read in context having regard to the regulatory purpose. Although the Explanatory Statement extract relied on by DEA explained the alteration in drafting from environmental performance objective to environmental performance outcome and in doing so emphasised that titleholders must set specific or measurable benchmarks, it did so in the context of permitting environmental performance to be monitored to determine whether outcomes are being achieved. One mechanism to manage environmental impacts and risks are control measures, which may include systems and procedures, which are measured according to environmental performance standards. The purpose of a control measure is to reduce environmental impacts and risks to as low as reasonably practicable and an acceptable level: s 21(5). There is no requirement for a control measure to be a specific benchmark. And as I explain, there is no such prescription for the reduction of impacts and risks to as low as reasonably practicable or to an acceptable level in the substantive sections of the Regulations. Ultimately, the task is to construe the regulatory scheme by giving meaning to the text, and not to give displacing effect to the Explanatory Statement. In any event, the Explanatory Statement reference to specific measurable benchmarks invites consideration of the various shades of meaning of specific and relatedly specify. There are degrees of meaning, some of which do not require explicitness as stated by Bryson J, albeit in the context of a development approval case, in Ludwig v Coshott (1994) 83 LGERA 22 at 38 observed:

"'Specify' and its derivatives are capable of referring to a wide range of degrees of specificity; the article in the Oxford English Dictionary well illustrates this, as many different degrees of specificity can be indicated by mentioning, speaking of or naming something definitely or explicitly, or setting down or stating something categorically or particularly; one can be definite without being explicit, and particular without being categorical.

128    These observations assume greater force when one turns to the required content of an environment plan, as provided for in the operative provisions at ss 20 and 21. The first requirement is to set out a description of the activity, including its location, general details of the construction and layout, an outline of the operational details and proposed timetables and “any additional information relevant to consideration of environmental impacts and risks of the activity”: s 21(1)(d). The next content requirement is that the environment plan must “describe the existing environment that may be affected by the activity” and “include details of the relevant values and sensitivities (if any) of that environment”: s 21(2). The environment is broadly defined as including “ecosystems and their constituent parts, including people and communities” which for present purposes is accepted as including the atmosphere, extending to the global atmosphere.

129    Pausing at that point, the obligation to describe the environment is not limited to the extent that it will be, will likely be or may substantially be affected by the activity: the obligation speaks to the existing environment that may be affected. It is difficult to conceive of a broader inquiry that the titleholder must undertake in formulating the content of an environment plan for, relevantly here a petroleum activity, extending to any other additional information that is relevant to a consideration of the environmental impacts and risks of the activity. These obligations may be comfortably applied to discrete components of the activity where the environmental impacts and risks are limited; for example, to one or more MNES that are inclusively listed at s 21(3). Where that is so, prescription and specificity in identification of impacts and risks reduced to as low as reasonably practicable and an acceptable level may be straightforward; achieved by a metric or identified measure.

130    To illustrate, the EP separately addresses the MNES list commencing with Tables 4-2 and 4-3 (page 103) where, inter alia, the potential impact on 52 listed threatened species is noted. One such species is Balaenoptera musculus (Blue whale), listed as endangered and where the migration route is known to occur within an area of potential impact (page 122). One potential impact relates to routine acoustic emissions from the conduct of operational activities.

131    EPO 8 states that there will not be any injury of or mortality to any listed marine fauna as a result of the noise generated by the activity. EPO 9 states that there will be no displacement of marine turtles or Blue whales from critical habitat during nesting or breeding to ensure that biologically important behaviour can continue in biologically important areas. One of the corresponding control measures provides that where activities are undertaken during the migration period (from April to July and October to January) positioning and mooring activities will only be undertaken when there have been no sightings of Blue whales for a period of at least 30 minutes (page 311).

132    Similar logic applies to smaller scale activities, where environmental impacts and risks are readily identifiable and confined. The Regulations are designed to cover the full spectrum of offshore petroleum and GHG activities that must be identified and assessed in an environment plan and, if accepted, undertaken and managed in accordance with it. Self-evidently, some impacts and risks may be difficult to identify and not susceptible to quantification or prescription in making as low as reasonably practicable and acceptable level assessments.

133    Once the environment plan has described the activities and the existing environment that may be affected by it, including details of the relevant values and sensitivities (if any) of the environment, the next obligation (apart from identification of existing external controls at s 21 (4)) is the requirement to include details “of the environmental impacts and risks of the activity” and “an evaluation of all the environmental impacts and risks, appropriate to the nature and scale of each impact or risk”: s 21(5).

134    Thus, the flexibility of the regulatory scheme is revealed. An evaluation that is appropriate to the nature and scale of identified impacts and risks is concerned with that which is suitable (appropriate). Some impacts and risks will be slight and may not require any control measures to reduce the impacts or risks to as low as reasonably practicable and of an acceptable level as required by s 21(5)(c). Conversely, other environmental impacts and risks as evaluated may be significant and, despite the implementation of control measures, where as low as reasonably practicable may still be of an order of significance.

135    These are matters left to assessment by NOPSEMA in determining whether it is reasonably satisfied that an environment plan meets the environment plan acceptance criteria. It is to be noted that the criteria at s 34 includes an assessment by NOPSEMA of whether the environment plan provides for “appropriate environmental performance outcomes, environmental performance standards and measurement criteria”: s 34(d). The point made by Charlesworth J in Munkara at [153] (albeit concerned with the 2009 Regulations) remains valid: as low as reasonably practicable and acceptable level are “a highly evaluative and context sensitive”. So understood, it is problematic to approach the construction task from the commencing point of the DEA submissions with intense focus on the individual phrases within the definition of environmental performance outcome: “a measurable level of performance” and “will be of an acceptable level”.

136    I explain why. Without equivocation, Mr Young’s submission is that to be an environmental performance outcome, the acceptable level of environmental impact and risk “must be defined”. The underpinning logic is that identification of an acceptable level of impact is a necessary precondition to the ability of NOPSEMA to evaluate whether the environmental performance outcomes are met. Those are the steps required by s 34(c) and (d). For Scope 3 GHG emissions from the activity, 162 MtCO2-e over 5 years and 778 MtCO2-e over the project life cycle are estimates of the total Scope 3 GHG emissions. The submission continues that the EP does not state that these are the acceptable levels. Necessarily, the acceptable levels must either be these estimates or some lesser figure, in each case with justification.

137    I am unable to accept the submission. The argument focuses too heavily on the definitions of control measure, environmental performance outcome and environmental performance standard. One must first understand the regulatory hierarchy. As explained by McHugh J in Kelly at [84] “a legislative definition is not or, at all events, should not be framed as a substantive enactment” and when addressing the function of definition provisions at [103] stated:

It is to provide aid in construing the statute. Nothing is more likely to defeat the intention of the legislature than to give a definition a narrow, literal meaning and then use that meaning to negate the evident policy or purpose of the substantive enactment.

138    The definitions in the Regulations are not the controlling provisions nor do they determine the hierarchy of controls. The starting point is s 34 in setting out the criteria for acceptance of an environment plan for an activity. The constructional logic is immediately apparent. One commences with a plan that is appropriate to the nature and scale of the activity. Step one therefore requires a suitability assessment by reference to the nature and scale of the activity. This is not cast in terms of ordination or a requirement to formulate rigidly. Necessarily it accommodates such flexibility as is appropriate to the particular activity that is proposed and with its characteristics.

139    The second requirement is for the plan to demonstrate that the environmental impacts and risks will be reduced to as low as reasonably practicable. Absent a definition of what is meant by the phrase, the construction task requires identification of the legal meaning, which sometimes though not always coincides with the ordinary grammatical meaning: South Western Sydney Local Health District v Gould [2018] NSWCA 69; (2018) 97 NSWLR 513 at [78] – [83], Leeming JA.

140    In my view the phrase bears the ordinary and natural meaning which is well understood and frequently employed in workplace health and safety legislation. Here, manifestly, it replicates multiple obligations that were contained in the Offshore Petroleum and Greenhouse Gas Storage (Safety) Regulations 2009 (Cth) (now replaced by the Offshore Petroleum and Greenhouse Gas Storage (Safety) Regulations 2024 (Cth)). The 2009 version required facilities to be designed, constructed, installed and operated only in accordance with an approved safety case. A stated object at s 1.4 was to “ensure that the risks to the health and safety of persons at facilities are reduced to a level that is as low as reasonably practicable”. To that end, each of the required safety assessments and safety management systems were obliged to identify control measures and safety management systems to reduce the level of identified risks accordingly: ss 2.5(2) and (3). It is a risk assessment and management tool.

141    What is meant by the phrase (and cognate requirements such as low as reasonably achievable) is usually traced to Edwards v National Coal Board [1949] 1 KB 704 at 712, Asquith LJ (an absolute duty to secure the safety of a road, tempered by a defence that it was not reasonably practicable to avoid or prevent a breach). In part, Asquith LJ observed:

“Reasonably practicable” is a narrower term than “physically possible” and seems to me to imply that a computation must be made by the owner, in which the quantum of risk is placed on one scale and the sacrifice involved in the measures necessary for averting the risk (whether in money, time or trouble) is placed in the other; and that, if it be shown that there is a gross disproportion between them-the risk being insignificant in relation to the sacrifice-the defendants discharge the onus.

142    “Gross disproportion” may not be apt when applied to the existential risk of climate change caused by GHG emissions to the atmosphere. However, be that as it may, as I have noted the EP in addressing as low as reasonably practicable for GHG emissions concludes (the conclusion is repeated for many impacts and risks that are not presently in issue) that “as no reasonable additional/alternative controls were identified that would further reduce the impacts without grossly disproportionate costs/sacrifice, GHG emissions from the Scarborough facility and indirect emissions sources that Woodside may practicably influence are considered ALARP”. Plainly, that is to be read with EPO 29, amongst other environmental performance outcomes. Later in these reasons, I return to this justification.

143    A more contemporary analysis for the present case was provided by Gaudron J in Slivak v Lurgi (Australia) Pty Ltd [2001] HCA 6; (2001) 205 CLR 304 at [53] (another work safety case):

The words "reasonably practicable" have, somewhat surprisingly, been the subject of much judicial consideration. It is surprising because the words "reasonably practicable" are ordinary words bearing their ordinary meaning. And the question whether a measure is or is not reasonably practicable is one which requires no more than the making of a value judgment in the light of all the facts. Nevertheless, three general propositions are to be discerned from the decided cases:

•    the phrase "reasonably practicable" means something narrower than "physically possible" or "feasible";

•    what is "reasonably practicable" is to be judged on the basis of what was known at the relevant time;

•    to determine what is "reasonably practicable" it is necessary to balance the likelihood of the risk occurring against the cost, time and trouble necessary to avert that risk.

(citations omitted).

144    Although the first object of the Regulations (at s 4) is to ensure that any petroleum activity carried out in an offshore area is consistent with the principles of ecologically sustainable development expressed at s 3A of the EPBC Act, as correctly observed by Charlesworth J in Munkara at [153] these principles do not require the elimination of risks.

145    In my view, as low as reasonably practicable in the Regulations imports an inherently flexible requirement. It does not prescribe that there may be only one way, or only a series of ways, of demonstrating that an identified environmental impact or risk will be so reduced. What it directs attention to is that having identified the environmental impacts and risks of the activity (for an impact, any change to the environment whether adverse or beneficial, that wholly or partly results from the activity) the reduction that is required to be demonstrated is bounded by objective reasonableness and practicability. This is a fact sensitive inquiry, responsive to identified impacts and risks in order of magnitude resulting from the type, scale and duration of the proposed activity which is antithetical to a narrow or prescriptive construction. It is a risk analysis conclusion reached by the application of accepted methodology. As I have noted, the EP proceeds in that way by reference to ISO 31000:2018 and other standards that require identification and classification of risk categories.

146    If the outcome of the risk analysis is that there are alternatives where the implementation of one (or more than one) will have the effect of reducing an environmental impact or risk, the environmental plan must demonstrate that the alternative which has the lowest practicable reduction is set out and justified. Or, in a case where there are no true alternatives, that the methodology that is proposed to be implemented by the titleholder is one that is designed to and will reduce identified environmental impacts and risks to the required level.

147    This is the pathway the EP adopts, as evidenced by the “Discussion of ALARP” and “ALARP Statement” sections of the EP as extracted above at [24].

148    The third criteria requires demonstration that the environmental impacts and risks will be of an acceptable level. This must be read harmoniously with reduction to as low as reasonably practicable. Each is directed to the same end, though reduction to as low as reasonably practicable may not be an acceptable level. As such, each is a separate criterion. It must also be read with the fourth criterion; that the environment plan must provide for appropriate environmental performance outcomes, which it will be recalled speaks to a measurable level of performance required for the management of the environmental aspects of the activity.

149    The controlling provisions demonstrate why the definitions are not silos of isolated effect. The nature and scale of the activity requires no more than an environment plan that is appropriate: s 34(a). The environmental impact and risk assessment of the activity is directly related to its nature and scale. It is open to demonstrate reduction of environmental impacts and risks to as low as reasonably practicable by a combination of measures. Environmental impacts and risks are required to be evaluated appropriate to the nature and scale of each: s 21(5)(b). Once they have been, the environment plan must set out the control measures that will be used to reduce the impacts and risks of the activity to as low as reasonably practicable and an acceptable level: s 21(5)(c). There is no requirement for a control measure to be a metric, a quantity or a specific amount. A control measure may simply be a system or a procedure which is used as a basis for managing impacts and risks. Control measures do not operate in isolation. The environment plan must set out environment performance standards for each control measure. This is no more than a statement of the performance required of a control measure. Performance is capable of being measured qualitatively. There is no definition for measurement criteria which is related to environmental performance outcomes and environmental performance standards: s 34(d). There is no apparent reason therefore why measurement criteria must be prescriptive. All that is required is that the environment plan must include measurement criteria that the titleholder will use to determine whether each environmental performance outcome and environmental performance standard is being met: s 21(7).

150    The point is that the regulatory scheme is designed to operate as an integrated environmental impact and risk assessment procedure designed to produce an environment plan which, to the reasonable satisfaction of NOPSEMA, meets all of the environment plan acceptance criteria in Division 2, including s 21. The only reference to specific measures in Division 2 is s 22(2) which requires an implementation strategy that “must contain a description of the environmental management system for the activity, including specific measures to be used to ensure that, for the duration of the activity”, amongst other things, the environmental impacts and risks continue to be identified and reduced to a level that is as low as reasonably practicable. If the intent of the regulatory scheme was that specification was required for as low as reasonably practicable and to an acceptable level, it would not have been difficult to make similar provision at s 21(5) or for that matter in the respective definitions.

151    The core argument of DEA is that an acceptable level of Scope 3 GHG emissions (the impact and risk) must be defined to allow for comparison with predicted levels and linked to the environmental performance outcomes requirement of a measurable level of performance. Performance is incapable of measurement absent identification of what is the acceptable level. As such, an acceptable level of environmental impact and risk is a benchmark – not a statement of what a titleholder will do when undertaking an activity. As put in written submissions:

Woodside’s EPO 29 states that “estimated GHG emissions associated with third party transport, regasification, distribution and end use shall remain below 162 MtCO2-e over 5 year operational span of this EP revision”.

Comparing EPO 29 with the example given above shows this is the closest Woodside comes to devising a compliant EPO. But, because Woodside has failed to identify and justify an acceptable level of third party GHG emissions, it has failed to devise an EPO that will “ensure that environmental impacts … will be of an acceptable level”. All Woodside’s EPO 29 establishes is that the predicted levels of GHG emissions (162 MtCO2-e over 5 years) are not acceptable, because it proposes to reduce those emissions by some unspecified amount. But it has not said (or justified) what is an acceptable level, and so not devised an EPO.

152    I am unable to accept the argument. The premise is to the effect that the Regulations impose in all cases, for all activities, for all environmental impacts and risks an obligation to prescriptively define the acceptable level that is less than the identified environmental impacts and risks in order to expose for assessment a measurable level of performance within the meaning of environmental performance outcome. Although the submission does not go so far as to say that the acceptable level must be a metric, DEA does submit that there must be identification of a measurable criteria against which performance is capable of being measured. With respect that exposes the construction error. There are several reasons why.

153    First, the scheme of the Regulations leaves it to the titleholder to identify environmental impacts and risks, to assess their extent and to evidence that assessment by demonstration. It is open to the titleholder to identify the evidence, formulate the methodology and set out the content of the demonstration in whatever manner it chooses. There is no constriction on how the demonstration is to be undertaken. It may be limited to the gathering of evidence, a description of a range of possible or probable outcomes under different scenarios, a high-level explanation, experimentation or the application of logical analysis to prove that an impact or risk is not sufficiently material. The options available are constrained only by relevance, human ingenuity and reasonableness. The DEA construction arguments cannot be reconciled with the obvious need for regulatory flexibility when the activities that are subject to it will vary considerably in size, scope and potential environmental impacts and risks.

154    Second, and relatedly, the purpose of the environment plan acceptance criteria at s 34 is to enable NOPSEMA to reach the state of reasonable satisfaction at s 33. This is a matter of evaluative judgment that is committed to NOPSEMA alone. Whether an environment plan identifies an acceptable level of impact and risk and provides the required demonstration is a matter for it to assess. As Charlesworth J observed in Munkara at [153], assessing the acceptability of impacts and risks is “highly evaluative and context sensitive”. The assessment is not susceptible to the level of prescription that the DEA argument requires. Moreover, the DEA argument impermissibly transgresses the merit of the sufficiency of EPO 29, which is a clear statement that Scope 3 GHG emissions “shall remain” below 162MtCO2-e over the five year period of the EP.

155    Third, demonstration that environmental impacts will be of an acceptable level and risk is forward looking. Intrinsically it requires assessment of the future within the bounds of what is a reasonable assessment when an environment plan is prepared. Once that is understood, the prescriptive implication of quantification (or some other like measure) that DEA submits is a mandatory requirement is hard to discern from the text understood in that context and where the purpose is to regulate a multitude of offshore petroleum and GHG activities.

156    The regulatory scheme is designed to operate and respond to future uncertainties. An environment plan is prepared for a five year horizon. NOPSEMA may request a titleholder to submit a revised environment plan, which power is not constrained by satisfaction of the occurrence of any particular circumstance: s 40. A titleholder must submit a revised environment plan 14 days before the end of each consecutive five year period: s 41. NOPSEMA may by written notice withdraw the acceptance of an environment plan if, inter alia, the titleholder has not provided sufficient information to enable it to determine whether the environmental performance outcomes and environmental performance standards have been met: s 43(1)(d). The titleholder must submit a report to NOPSEMA in relation to the environmental performance for the activity at the times or intervals provided for in the environment plan: s 51(1). These provisions demonstrate that an environment plan is not a static document. Rather, they are supportive of a construction of s 34(d) as one allowing for such flexibility as the circumstances of an activity and the likely future environmental impacts and risks require.

157    Fourth, the s 34(d) criteria cannot be construed as requiring a level of certainty, prescription or exactness in cases where that is not possible or reasonable. The Scope 3 GHG emissions from the activity in this case illustrates why that is so. Accepting the near linear relationship between cumulative anthropogenic CO2 emissions and the global warming they cause (EP page 335), which is a submission of DEA, does not answer what is an acceptable impact. The EP exposes the uncertainties related to the estimates at Table 6-21 associated with reservoir and process performance (page 345), the shape and pace of the energy transition (page 353), scientific uncertainty in the projection of climate change trends, the predicted and observed environmental effects of climate change and the changing regulatory and social requirements (page 375). If uncertainties of this type prevent determination of what is an acceptable level of environmental and impacts and risks, it is open to NOPSEMA to not be reasonably satisfied that the environment plan meets the acceptance criteria. Once again, that is a matter for evaluative judgment, not regulatory prescription. The scheme does not adopt a one size fits all approach.

158    Fifth, textually the regulatory requirement is expressed as an acceptable level of impact and risk, not its quantification. Acceptable has the ordinary and natural meaning of adequate, satisfactory or tolerable (Macquarie Dictionary, 3rd ed, 1997). Level in context is capable of application to a variety of methodologies, depending on the identified environmental impact and risk. Obvious examples include positions, standard, degrees, grades, ranks, ranges and including metrics. The drafting accommodates the determination of acceptability depending on what is being demonstrated by analysis in an environment plan. Once that is understood, a measurable level of performance for an environmental performance outcome need not be a metric or a quantification in order to assess the impacts and risks against an acceptable level. This is not inconsistent with the reasoning of Colvin J in Cooper at [59]. His Honour was not concerned with the present problem and, in any event, the reference to requiring “an understanding of the environmental impacts and risks” in order to form the evaluative judgment does not compel specification by metrics. His Honour was not concerned with other methodologies employed where the impacts and risks are insusceptible to metrics or quantification. And, in this case, the impacts and risks of Scope 3 GHG emissions were extensively exposed in the EP for analysis by NOPSEMA.

159    Sixth, identification of an acceptable level of impact and risk is an outcome of a process that begins with development of what is the activity, its components and the operational methodology, identifies the relevant environment, assesses the actual or potential impacts and risks then evaluates the level of significance as requiring a response or not. A range of measures may be identified to address particular impacts and risks and if so, the titleholder will likely select one that is a reasonable response. A central component is reduction of identified environmental impacts and risks to as low as reasonably practicable. The Regulations must be capable of operation with the degree of elasticity inherent in this process. Quantifiable criteria may be the outcome, but there is no express or implicit requirement to articulate acceptable impacts and risks in that way. Expressed differently, NOPSEMA may require specification or a greater level of detail in order to be reasonably satisfied that an environment plan meets the acceptance criteria, but that is not mandated by the regulatory scheme.

160    Quite apart from the construction question, ground 9 and the core submission of DEA each fail for a different reason. Even if the acceptable level construction argument is correct, the EP stated one for Scope 3 GHG emissions. Table 6-22 (page 345) estimates Scope 3 GHG emissions over the five year period of the EP at 162 MtCO2-e and 778 MtCO2-e for the development life. I have set out part of the introductory paragraphs to Table 6-25 at [19] of these reasons. That it is clearly put as an alternative worst-case outcome.

161    Table 6-25 proceeds on the assumption that all GHG emissions from the project (not limited to Scope 3 GHG emissions) “are treated as entirely additive”. The total GHG emissions over the development life of 878 MtCO2-e are calculated respectively as 0.37% of the remaining global carbon budget to limit global warming by no more than 1.5°C or 0.08% of the remaining global carbon budget to limit global warming by no more than 2°C. EPO 29 requires that the total emissions over the life of the EP shall remain below 162 MtCO2-e. The EP then states (page 358):

Greenhouse gas emissions associated with Scarborough are estimated to be up to 878 Mt CO2-e till EOFL, of which approximately 100 Mt CO2-e may originate from extraction and processing in Australia. Projected annual extraction and processing GHG emissions of approximately 3.5 Mt CO2-e would represent ~0.8% of national Australian emissions, relative to FY2024 (440.6 Mt CO2-e for the year until June 2024) (DCCEEW, 2024c).

Based on Australia’s GHG emission reduction commitments and NDC, an Australian carbon budget of 4,377 MtCO2-e for the years 2021-2030 has been estimated (DCCEEW 2024c), GHG emissions associated with the Scarborough project until 2030 occurring in Australia, conservatively assuming 5 full years of operation and emissions from consumption of domestic gas, are estimated to be 38 MtCO2-e, representing 0.9% of Australia’s carbon budget for this period. Net emissions associated with Scarborough in Australia are set to be lower than these totals - with ongoing abatement via implementation of the NGERS Safeguard Mechanism which sets out an abatement trajectory consistent with achieving Australia’s emission reduction targets.

These emissions represent a de minimis contribution to either Australia’s GHG emissions or global GHG emissions.

162    DEA submits this hypothetical scenario is just that: it is not the case presented in the EP, is expressed as not expected to eventuate and is not the case considered by NOPSEMA.

163    I reject the submission. An objective reading of the EP demonstrates that Woodside approached the acceptable level demonstration by the hypothetical worst-case scenario. The EP states in Table 6-22 what the total contribution of Scope 3 GHG emissions over five years (and the development life) would likely be without any reduction for the contribution of the project to reducing Scope 3 GHG emissions by consumers switching from more intense GHG fuel sources to LNG. From page 352 to page 357, the EP demonstrates that this is unlikely because of the role that LNG will likely play in replacing higher carbon intensity fuel sources. The conclusion of the analysis is expressly that the environmental impact and risk of all GHG emissions in consequence of undertaking the activity at either 0.37% or 0.08%, respectively of the remaining global carbon budgets to limit global warming to 1.5°C or 2°C, is the acceptable level. Whilst the EP does not employ that label at this point in the analysis, that is clearly the effect of the conclusion that the total emissions “represent a de minimis contribution to either Australia’s GHG emissions or global GHG emissions”.

164    For the reasons I have explained, the Regulations do not (explicitly or implicitly) prescribe any methodology that must be implemented to demonstrate that the environmental impacts and risks of the activity will be reduced to as low as reasonably practicable and will be of an acceptable level. It follows that it is open to a titleholder to address each criterion by postulating a hypothetical worst-case scenario to demonstrate that the environmental impacts and risks of all GHG emissions will be of an acceptable level, even if there is no displacement effect. A titleholder may proceed in that way as an alternative analysis even if, as in this case, it concludes that the hypothetical is unlikely to occur. Whether proceeding in that way is satisfactory or sufficient is a matter for NOPSEMA to determine when making the decision required by s 33(7).

165    Further, I do not accept that NOPSEMA failed to understand this. True it is that there is no reference in the statement of reasons to de minimis, worst-case or hypothetical but to proceed in that way is to commit the error of failing to read the entirety of the statement of reasons and does not support the conclusion that NOPSEMA did not accept the analysis or failed to understand it. That is clear from parts of the statement of reasons from [35], (extracted at [48] above), where the delegate addressed the demonstration required by s 34(c) as set out in Parts 2 and 6 of the EP. It is to be noted that the delegate referenced section 6.7.6 (Routine and Non-routine Greenhouse Gas Emissions) which commences at page 335 of the EP and concludes at page 386. Table 6-25 is identified as including “consideration of the relevant requirements that apply to GHG emissions from the activity”. The delegate accepted at [36](f)(iii) that the GHG impact evaluation “is conducted on the assumption that all emissions predicted for the lifecycle of the activity will be realised; and does not account for potential future emissions reduction projects through technology or operational refinements”. Overall, the delegate concluded at [40] that:

The EP provided an appropriate evaluation of impacts and risks specific for the nature and location of the activity and relevant environmental receptors. I considered that the evaluation is commensurate with the level of impact or risk presented and provides justifiable conclusions that impacts and risks will be managed to an acceptable level (Section 6). The impact and risk evaluations demonstrate that the acceptable level will be met, and that the EPO “will be achieved.”

166    That conclusion was open. For of these reasons, ground 9 fails.

167    It follows also that ground 4 fails because there is no basis to conclude that EPO 11 (Woodside will support its customers to reduce GHG emissions) fails to provide a measurable level of performance as there is no requirement for an environmental performance outcome to set a measurable level of performance by reference to quantifiable criteria and, in any event, the EP by analysing the worst-case hypothetical did so.

The remaining grounds

168    I proceed in the order in which I have grouped the grounds. It is sufficient to summarise the effect of each ground.

Control measures: grounds 1, 2, 6, 7, 11 and 12

169    Ground 1 contends that CM 6.20 is not a control measure as required by s 34(h) because it does not meet the requirements of s 21(5)(c). The effect of CM 6.20 is that Woodside commits to undertake an annual review process to address uncertainties in the impact assessment of Scope 3 GHG emissions, which may result in the application of additional management measures if the conclusion is that LNG is not displacing more carbon intensive fuels. DEA submits that the failure to identify what additional management measures might be or how they might be implemented leads to the inference that they do not exist, have not been assessed and what, if anything, will be achieved is unknown.

170    A control measure is defined as including a system or a procedure that is used as a basis for managing environmental impacts and risks of an activity. NOPSEMA is correct to submit that s 25(5)(c) does not in terms require that everything described as a control measure in an environment plan must meet that definition. The extent of the obligation is to include details of the control measures that the titleholder intends to implement to achieve as low as reasonably practicable and an acceptable level of environmental impact and risk. There is no prescription that a control measure must take a particular form and, it follows from my reasoning above, that to demonstrate satisfaction of the as low as reasonably practicable and acceptable level criteria, it is open to a titleholder to propose systems or procedures that may be implemented in the future, depending on the outcome of a review process. There is no requirement to set out the details of those systems and procedures in advance of a study and analysis of what in fact is occurring as a result of undertaking the activity. There is no requirement of specificity or certainty. Systems or procedures are not constrained in the manner DEA contends. Whether that which is proposed satisfies s 34(h) is a matter for NOPSEMA to determine in undertaking its assessment is required by s 33(7). This ground fails.

171    Ground 2 is parasitic to ground 1. It contends that because CM 6.20 did not demonstrate that the environmental risks and impacts of Scope 3 GHG emissions will be reduced to as low as reasonably practicable and will be of an acceptable level, NOPSEMA could not have been reasonably satisfied as required by s 33(7). It fails for the same reasons.

172    Ground 6 contends that CM 6.17 (Woodside will support its customers to reduce their emissions by investment in new energy products and lower carbon services) is not a control measure because it is uncertain and is in terms a target and therefore not a system , an item of equipment, or a procedure, within the meaning of the definition. There is no basis to construe the definition of control measure as excluding a target to be achieved by the implementation of future steps. DEA also submits that the measure is vague, uncertain and subject to future contingencies with the result that it is a measure that may not be implemented at all. I reject that argument for the reasons given for grounds 1 and 2. This ground fails.

173    Ground 7 is parasitic to ground 6. It contends that CM 6.17 does not demonstrate that the environmental impacts and risks will be reduced to as low as reasonably practicable and will be of an acceptable level and therefore NOPSEMA could not have been reasonably satisfied that the EP met each criteria. It fails for the reasons given for ground 6.

174    Ground 11 contends that CM 6.18 (Woodside will work with the natural gas value chain to reduce emissions in third-party systems) is not a control measure within the meaning of the definition. DEA submits that this is no more than a statement of general intent or objective and fails to articulate any system or procedure that can be used as a basis for managing environmental impacts and risks to achieve the required reductions. It is no more than a “generic and high-level objective”, devoid of detail and therefore effectiveness.

175    I do not agree. As I have explained, a system or procedure may be proposed by a titleholder in this form and there is no requirement of present certainty or exactness. Whether the control measure in that form exposes the EP to the conclusion that the environment plan acceptance criteria is not met, is a matter for NOPSEMA to determine pursuant to s 33(7). The ground impermissibly inquires into the merits of the Decision. The ground fails.

176    Ground 12 is parasitic to ground 11. It contends that because the CM 6.18 failed to meet the definition of a control measure, NOPSEMA could not have been reasonably satisfied as required by s 33(7). This ground falls with ground 11.

Environmental performance standards: grounds 3, 8 and 13

177    Ground 3 contends that EPS 6.20.2 (adaptive management measures will be implemented if gas is not contributing to the global energy transition or displacing more carbon intensive fuels) is not an environmental performance standard because it fails to state or set the performance required by CM 6.20. DEA submits that by repeating the control measure it tells NOPSEMA nothing and exposes that it is not possible to devise a compliant environmental performance standard for a meaningless control measure.

178    I do not agree. An environmental performance standard simply means a statement of the performance required by the control measure. EPS 6.20.2 specifies that adaptive management measures will be implemented in the event that the outcome of the review process required by CM 6.20 discloses that gas is not contributing to the global energy transition or displacing more carbon intensive fuels. Once it is understood that it was open to NOPSEMA to be reasonably satisfied that CM 6.20 is a measure that meets s 34(d), it follows that EPS 6.20.2 is a statement of the performance required by that control measure. This ground fails.

179    Ground 8 contends that EPS 6.17.1 is not an environmental performance standard because it does not state or set the performance required by CM 6.17. Having concluded that ground 7 fails, which impugns that CM 6.17 is not a control measure, this ground fails with it.

180    Ground 13 contends that EPS 6.18.1 is not an environmental performance standard because it does not state or set the performance required by CM 6.18. Having concluded that ground 12 fails, this ground does as well.

Management controls: grounds 5, 10 and 14

181    Ground 5 contends that NOPSEMA could not reasonably have been satisfied that the EP met the acceptance criteria because MC 6.20.2 (records demonstrate that adaptive management measures be implemented, if required) does not include any measurement criteria to determine whether EPO 11 and EPS 6.20.2 are being met. DEA submits that the problem with MC 6.20.2 is that it is impossible to devise a compliant measure for an environmental performance outcome or an environmental performance standard, which of themselves do not meet the statutory criteria. The submission continues that the EPS does nothing more than restate defective environmental performance outcomes and standards.

182    This ground fails because I have concluded that it was open to NOPSEMA to conclude that EPO 11 and EPS 6.20.2 each met the statutory criteria (grounds 4 and 3).

183    Ground 10 contends that MC 6.17.1 (progress against targets will be reported annually and disclosed to relevant industry standards) does not include any measurement criteria to determine whether any environmental performance outcome, including EPO 29, and any environmental performance standard, including EPS 6.17.1, are being met. DEA submits that it is impossible to set a measurement criteria for a defective environmental performance outcome and environmental performance standard. This ground fails because there is no impediment to the formulation of a management control as a process of reporting whether an environmental performance outcome or an environmental performance standard is being met.

184    Ground 14 contends that MC 6.18.1 (records demonstrate that listed actions have been undertaken and are effective) in response to CM 6.18, fails to specify any measurement criteria to make that determination. This fails for the reasons given for ground 5.

185    Finally, as I have noted it is unnecessary to separately consider grounds 15 and 16.

Result

186    The proceeding must be dismissed.

Associate:

Dated:    22 August 2025