The Federal Court has found conditional approval of planned seismic testing by Woodside Energy off the North West coast was granted outside the regulator's statutory power.
The Federal Court has found conditional approval of planned seismic testing by Woodside Energy off the North West coast was granted outside the regulator's statutory power.
Federal Court Justice Craig Colvin found regulator, the National Offshore Petroleum Safety and Environmental Management Authority (NOPSEMA), did not have statutory power to approve Woodside’s application for seismic off the coast, following an appeal against the approval by Mardudhunera Traditional Custodian Raelene Cooper and the Environmental Defenders Office.
The appeal hinged on the legality of the approval granted to Woodside for its planned seismic testing at the undeveloped Scarborough field off the Burrup Peninsula, which was conditional on further consultation being undertaken.
Ms Cooper argued she had not been adequately consulted under the conditions of the approval, and that NOPSEMA's decision to approve the application with a consultation condition was not legally valid.
Delivering his findings this morning after hearing evidence earlier in the week, Justice Colvin said NOPSEMA did not have the statutory power to grant the approval.
The court found the condition attached to the approval demonstrated the regulator was not reasonably satisfied that Woodside had met its consultation obligations.
A temporary injunction was placed on seismic testing earlier this month, ahead of the court's hearing.
The decision invalidates the environmental approval granted to Woodside, in a blow for the LNG producer. Woodside will also pay Ms Cooper's court costs.
A spokesperson for Woodside said the company would continue to work with NOPSEMA to get an accepted environmental plan for seismic surveying in place.
The spokesperson said Woodside was committed to its consultation requirements.
"The decision did not in any way criticise any action by Woodside," they said.
"We have consulted extensively on our environmental plans, dedicating time and effort so our approach to environmental management and environmental approval consultation meets our current understanding of regulatory requirements and standards.
"We are continuing all our engagements with all relevant stakeholders on the seismic survey environmental plan and our other project environmental plans."
NOPSEMA said it was reviewing the reasons for the decision to ensure future regulatory actions were in accordance with the precedent set.
"NOPSEMA was not reasonably satisfied that all environmental risks and impacts had been identified and therefore the Scarborough seismic environment plan could not be accepted without applying conditions," a spokesperson said.
"The authority took a decision to seek advice to support the delegate proceeding to make a decision given the potential ambiguity in the reading of the environmental regulations.
"NOPSEMA provided procedural fairness to Woodside by enabling a review of the draft conditions prior to the decision being issued. This was in accordance with administrative law requirements. Woodside did not seek a review of the grounds of acceptance with conditions."
NOPSEMA said it could not comment on the specifics of the plan as it returned to the assessment process following the decision.
The Federal Court last year overturned an approval granted to Santos' Barossa offshore gas project after considering the way Tiwi Traditional Owner and Elder Dennis Murphy Tipakalippa was consulted.
Woodside has previously said it stepped up its consultation approach in the wake of that finding.
Australian Energy Producers chief executive Samantha McCulloch was critical of the court's decision and called for regulatory clarity.
"Important energy projects which are following the rules, consulting in good faith and being granted approvals by the regulator are being impacted because unclear regulations and the application of them are effectively changing the goal posts. The time delays and costs incurred are substantial," she said.
"More obstacles are being put in the way of critical energy developments, risking the new supply needed to deliver domestic energy security, emissions reductions and substantial economic returns for Australians."
