Lawyers from EDO – on behalf of the Conservation Council of WA (CCWA) – have filed a second Supreme Court challenge relating to the Scarborough gas proposal as pressure continues to build around the controversial fossil fuel development.

The case will challenge a WA state government decision to approve works relating to an expansion of Woodside’s Pluto LNG facility – a key component of the Scarborough gas proposal.

It is the second judicial review to be launched around the project in the Supreme Court of WA, following an earlier challenge which will be heard in mid-December.

The Scarborough development has been widely criticised by campaigners as Australia’s most polluting fossil fuel proposal. Figures released by Woodside CEO Meg O’Neill last week confirmed the development would emit a total of 1.6 billion tonnes of CO2, which is the equivalent of 15 coal-fired power stations.

The case will assert that the existing works approval for expansion of the Pluto facility, issued by the CEO of the Department of Water and Environmental Regulation (DWER), was unlawful as it failed to properly consider and control the environmental harm generated by the development’s greenhouse gas emissions.

“It is well established that any additional CO2 emissions take us further beyond what is considered acceptable for a safe climate,” said managing lawyer Tim Macknay.

“Any additional CO2 emissions released into the atmosphere increases the risk of bushfires, droughts, heatwaves and other climate-related phenomena which put communities at risk.

“That is why governments and regulators – such as the CEO of the WA Department of Water and Environmental Regulation – should be doing everything in their power to properly assess and control any additional greenhouse gas emissions to mitigate the risks of climate related extreme weather events to the Australian people.

“The CEO of DWER has a clear power and obligation to assess and control risks of environmental harm from highly polluting industry during the approvals process. The Conservation Council will argue that this did not happen and therefore the approval which was granted by the CEO is invalid.”

The expansion of existing the LNG processing facilities on the Burrup Peninsula is a critical part of Woodside’s plans to unlock gas contained in the offshore Scarborough gas field and would more than double the total greenhouse gas emissions from the facility over its lifespan.

Woodside has come under intense pressure from conservation and environmental groups in recent months, with a national campaign – Say No to Scarborough Gas – set up to halt progress on the proposal. The group, which counts the likes of Greenpeace, Market Forces, 350 and the Australian Marine Conservation Society among its members, has stepped up its campaign since Woodside announced it had reached final investment decision on Scarborough in late November.

Maggie Wood, Executive Director of the Conservation Council of WA, said: “Less than a month after world leaders gathered in Glasgow to work towards driving down emissions across the globe, Woodside has signed off on Australia’s most damaging fossil fuel proposal.

“The decision to press ahead with this highly controversial development shows that Woodside and its partner BHP are deaf to the voices of millions of ordinary Australians who want to see an end to fossil fuels and to get Australia’s emissions under control.”

The Federal Court has found that Federal Resources Minister Keith Pitt’s decision to grant $21 million of public money to private company Imperial Oil & Gas to pursue fracking in the Beetaloo Basin was invalid.

Federal Court Justice Griffiths found it was “legally unreasonable” for the Minister to enter into contracts over the grants while they were the subject of court proceedings, an action which breached model litigation obligations.

However, the court found that in this particular case, Federal Resources Minister Keith Pitt did not need to consider the risks of climate change when deciding to grant the public money to private company Imperial Oil & Gas to pursue limited exploration in the Beetaloo Basin.

It was found that the greenhouse gas emissions from the seven wells for which the grant was awarded were not significant, due to being solely for exploration for fracking.

“This case was critically important and put fossil fuel subsidies in the spotlight,” said Elaine Johnson, Director of Legal Strategy at EDO.

“The findings reinforced that Federal Ministers have a legal obligation to make reasonable enquiries about the proper use of public money when making funding decisions of this nature,

“In this case, the court found those reasonable enquiries didn’t extend to climate risk given the project does not involve extensive gas extraction and production. 

“Importantly, the door has been left open for climate risks to be considered in other decisions around the use of public funds for fossil fuel projects.”

“Fracking in the Beetaloo Basin would see a significant increase in global emissions, so it is critically important that government is held accountable for any decisions to use public funds for new gas in the Beetaloo.

“This decision underscored the primacy of the rule of law, highlighting the need for the Federal Government to act appropriately and respectfully when litigation is on foot.”

Kirsty Howey, Co-director of Environment Centre NT said the decision “doesn’t close the door on the scrutiny of fossil fuel grants”.

“Fossil fuel subsidies are not a reasonable use of public money. Under Australia’s commitment to the global Glasgow Climate Pact, we need to phase out funding of new oil, gas and coal projects.

“The Northern Territory is already suffering significantly from the impacts of climate change, and this will only worsen unless we take drastic action. Our own Environment Minister recently said that the Northern Territory may become uninhabitable for humans due to climate change. The public has an expectation that taxpayer money will not be used to accelerate climate catastrophe by funding projects that will release vast amounts of emissions, without due consideration of these risks.”

“Unfortunately, we’re being left behind in the global renewables transition by our government, which insists on propping up polluting fossil fuel projects with taxpayers’ funds.”


In July 2021, Minister Keith Pitt announced that the first grants from the $50 million Beetaloo Cooperative Drilling Program would go to Imperial Oil and Gas to support three new exploration wells “to help accelerate development of gas projects in the Northern Territory.” Imperial Oil and Gas is a wholly owned subsidiary of the publicly listed Empire Energy.  

On 29 July 2021, the Environment Centre NT (ECNT), represented by the Environmental Defenders Office (EDO), commenced judicial review proceedings in the Federal Court challenging the lawfulness of the Beetaloo Cooperative Drilling Program and the grants to Imperial. 

The Court heard in November that fracking the Beetaloo Basin could lead to a 13% increase in Australia’s annual greenhouse gas emissions on 2020 levels, and fail to generate any economic benefit.

EDO argued on behalf of ECNT that the Minister was required to make reasonable inquiries into a range of matters before giving Imperial a large amount of taxpayer money, including how exploitation of the Beetaloo sub-basin would impact climate change and Australia’s ability to meet its Paris Agreement obligations.

Grants under this program are subject to the Public Governance, Performance and Accountability Act 2013 (Cth) which requires that the Minister not approve the expenditure unless he is reasonably satisfied that it is an efficient, effective, economical, and ethical use of public money.

Across Australia, communities like this are on the front line, defending their homes and our future against the impacts of climate change. 

You can help them by donating to our Environmental Defence Fund.