Mullaley Gas and Pipeline Accord Inc v Santos NSW (Eastern) Pty Ltd

The Mullaley Gas and Pipeline Accord (MGPA) community action group brought judicial review proceedings challenging the decision of the Independent Planning Commission (IPC) to grant development consent to the Narrabri Gas Project proposed by Santos NSW (Eastern) Pty Ltd (Santos). The Project proposes the development of a new coal seam gas field and associated infrastructure over 95,000ha in Narrabri in north-western New South Wales. The Project will include the construction of up to 850 gas wells and up to 425 well pads over approximately 25 years and gas processing and water treatment facilities. The approval was based on a “State significant” development status under section 4.36 of the Environmental Planning and Assessment Act 1979 (NSW) (EPA Act), because it supports petroleum production. On September 30, 2020, the IPC approved Santos NSW’s SSD 6456 application. MGPA argued that the IPC failed to properly assess the impacts of the project’s greenhouse gas (GHG) emissions. MGPA challenges two aspects of the IPC’s rationale: (i) its assessment of the expected GHG emissions advantage compared to coal and (ii) its determination that the downstream GHG emissions (Scope 3) are outside the direct control of Santos and therefore not able to be reasonably conditioned. The judicial review proceeding filed by MGPA was heard in the NSW Land and Environment Court in August 2021. On October 18, 2021, the court dismissed the legal challenge to the IPC approval of the Narrabri Gas Project. The court found that MGPA had not established that (i) the IPC erred to consider the expected GHG emissions, relevant to section 4.15(1)(b) of the EPA Act, and (ii) since the Scope 3 emissions were inside Santos’ direct control, the IPC’s decision to exclude these conditions was unreasonable. The Court further found that the IPC did not fail to consider the impacts of any potential gas transmission pipeline into consideration in its determination of the development application for the project, relevant to section 4.15(1)(b), because “the impacts of any potential gas transmission pipeline were sufficiently remote in the chain of likely consequences as not to be likely impacts of the project.”