Climate ruling on gas adds to broader business woes

The latest Federal Court decision that sets back Santos’s Narrabri natural gas development provides another window into the relentless way in which process and prosecution are being used to strangle business aspiration in the name of climate change. The tactics deployed against Santos in this instance are a variation on well-worn themes. Green groups and activist lawyers have harnessed Indigenous interests to claim the Native Title Tribunal had not paid sufficient regard to climate change impacts when making its decision. Many projects have been sent back for reconsideration either with Indigenous groups or government ministers. Rather than change the outcome, the usual result has been delays to project timelines and an increased risk profile for doing business in Australia.

In this instance, two out of three Federal Court judges ruled in favour of an appeal against the $3.5bn Narrabri project lodged by the Gomeroi traditional owners. They found the Native Title Tribunal failed to consider climate change as part of native title when it approved four future petroleum production leases. The decision does not determine what the Tribunal should conclude on the issue but it represents another delay for a project that has been battling the odds for a decade despite the fact it is seen as central to maintaining adequate gas supplies for the east coast market.

This is not the first time consideration of climate change impacts has been raised in court. The Australian Conservation Foundation has brought a case against Woodside in a bid to stop the $16.5bn Scarborough offshore gas field on the basis the project will emit 1.37bn tonnes of greenhouse gas emissions over 25 years, which would negatively impact the Great Barrier Reef. The ACF has brought similar cases against other high-profile fossil fuel developments. To date, the courts have mostly ruled in favour of projects on the basis that emissions saved in one place will most likely be emitted elsewhere. Greenpeace has launched a major greenwashing case in the Federal Court against Woodside, alleging it has been misleading and deceiving Australians about the enormous climate harm of its gas and oil projects. The noose is tightening, with great effort being applied to having a climate change trigger inserted in federal environmental legislation so climate impact will be automatically considered as part of a review under the Environmental Protection and Biodiversity Act. If, as a result of the latest ruling, climate change impacts are found to impact native title rights, the issue will become more complex still.

A bigger squeeze is coming under the guise of mandatory climate reporting that extends the onus on big companies to include the so-called scope three emissions of their suppliers and customers. As Charlie Peel has written, the bureaucratic mind knows no bounds. The federal government’s official advice on diets will now incorporate the impact of certain foods on climate change, sparking outrage from farmers who fear it is driven by an “ideological agenda” against red meat. For a sense of where this could all lead, look no further than court action being taken by New York Attorney-General Letitia James, who is suing the world’s largest beef producer, JBS USA, over misrepresenting its carbon emissions.

The US court system differs to ours but it is chilling to consider what the action says about the authoritarian mindset of climate crusaders. As The Wall Street Journal notes, the suit against JBS rests on the fact its emissions goals are incompatible with its plan to increase meat production. The suit argues JBS duped consumers into buying its products by making overly ambitious pledges to cut emissions, thereby profiting from its “fraudulent and illegal business activities across New York state”. Farmers, miners, airlines and businesses everywhere have every reason to be concerned about what a court-sanctioned world of climate purity will mean for them.