The Nature Conservation Council of New South Wales has commenced a world-first legal action to protect rivers and wetlands. Challenging the Border Rivers Water Sharing Plan in the Land & Environment Court, naming Water Minister Melinda Pavey & Treasurer Matthew Kean in his position as Environment Minister as respondents

Environmental Defenders Office, 6 October 2021:

A plan for sharing water in the northern Murray-Darling Basin is being challenged in court over climate change, in an Australian and world legal first.

Acting on behalf of the Nature Conservation Council of NSW, EDO lawyers will head to the NSW Land and Environment Court to challenge the validity of the Border Rivers Water Sharing Plan (WSP), arguing that the NSW Government failed to properly consider future climate change when making the plan.

The Border River catchment sits along the NSW/Queensland border and includes the Macintyre and Severn Rivers. The catchment is home to endangered species such as the eel-tailed catfish, Australian painted snipe and curlew sandpiper.

Both the NSW Water Minister Melinda Pavey, who approved the WSP and the NSW Treasurer Matt Kean, who as Environment Minister provided concurrence, are named as respondents in the Class 4 Judicial Review proceedings.....

Chris Gambian, CEO of the NSW Nature Conservation Council said:

“If we fail to keep our rivers alive as a first priority, it doesn’t really matter what our second priority is. We will have lost the fight.

“Climate change is not some abstract phenomenon that may occur in the distant future. River communities in NSW are bearing the brunt of that change every day, right now.

“Just 18 months ago, many towns in western NSW were entirely dependent of bores or truck deliveries for their water supplies.

“It is not just prudent for governments to factor in the impacts of climate change. It is a legal requirement that we are seeking to uphold by taking this action.”

EDO Managing Lawyer Dr Emma Carmody said:

“Our client alleges that under their own laws, NSW Government Ministers are required to properly consider climate change, including future climate change, when drawing up a water sharing plan. By relying on historical climate data for the catchment, we argue that they have failed to do this, including in relation to the calculation of the catchment-wide limit on extractions from the river.”

“The alleged unlawfulness arises not only due to the impacts of this failure on the Border Rivers itself, but on surrounding floodplains and downstream rivers and communities, notably the Barwon-Darling/Barka River, which receives some of its flows from the Border Rivers catchment.”

“Our client will further argue that the rights of children and future generations to enjoy and benefit from healthy, functioning river systems requires the Minister to properly consider climate change and its impacts on water availability and quality and to devise a water sharing plan that reflects the likelihood of a hotter, drier future.”

“Our client also alleges that setting drought reserves for basic landholder rights on the basis of lowest inflows up to July 2009 is unlawful, not only because it excludes the most recent and severe drought on record, but future climate change.”

“There is ample evidence which indicates that the rivers and floodplains of the northern Murray-Darling Basin are over-extracted. This is now being exacerbated by climate change, which is making it hotter and drier. We can’t afford to make decisions about our precious water resources which ignore this reality. Indeed, our client alleges that the law requires it.”

“Our client will ask the court to find that the Border Rivers Water Sharing Plan is invalid and must be replaced by a lawful plan.”

“If this case is successful, it will likely mean that future Water Sharing Plans will have to take climate change into account, in particular in relation to the setting of catchment-wide extraction limits and environmental flow rules. This could mean more water for fragile ecosystems across the Murray-Darling Basin and in turn healthier river systems and greater water security for downstream communities. Our children and future generations deserve to enjoy and benefit from a healthy, functioning river system.”

`````````````````````````````````````````````

https://youtu.be/q6Fgkb0at0o

It is worth noting that Brett Walker QC, who acted as Commissioner during the twelve month long South Australian Royal Commission into the Murray Darling Basin Plan, has agreed to represent the Conservation Council of NSW.

It is also be noted that on 26 August 2021 the NSW Land and Environment Court in Bushfire Survivors for Climate Action Incorporated v Environment Protection Authority [2021] NSWLEC 92 ordered: The Environment Protection Authority, in accordance with s 9(1)(a) of the Protection of the Environment Administration Act 1991 (NSW), is to develop environmental quality objectives, guidelines and policies to ensure environment protection from climate change. Neither the Minister for Energy and the Environment Matthew Kean or the EPA appealed this judgment.

How to help the Conservation Council of New South Wales fund this legal challenge of the validity of the Border Rivers Water Sharing Plan (WSP):

https://legal-water-challenge.raisely.com/

BRIEF BACKGROUND ON WATER LICENCING AND WATER BUYBACKS IN THE MURRAY DARLING BASIN

https://youtu.be/rsdGZZSaUXw

 

World-first Australian Federal Court case over Santos’ ‘clean energy’ & net zero claims

On the same day that a judgement was handed down in Bushfire Survivors for Climate Action Incorporated v Environment Protection Authority [2021] NSWLEC 92 (26 August 2021) ordering The Environment Protection Authority, in accordance with s 9(1)(a) of the Protection of the Environment Administration Act 1991 (NSW), is to develop environmental quality objectives, guidelines and policies to ensure environment protection from climate change, news came of another legal challenge in which the Environmental Defenders Office is the the legal representative of the applicant.

Santos Ltd Cooper Basin facility
IMAGE: Environmental Defenders Office

Environmental Defenders Office, 26 August 2021:

The Environmental Defenders Office, acting on behalf of the Australasian Centre for Corporate Responsibility (ACCR), has filed a Federal Court case against gas giant Santos over its claims natural gas is “clean fuel” and that it has a credible pathway to net zero emissions by 2040.

ACCR will argue the claims – contained in the company’s 2020 Annual Report – constitute misleading or deceptive conduct under the Corporations Act 2001 (Cth) and the Australian Consumer Law.

This is the first court case in the world to challenge the veracity of a company’s net zero emissions target, as well as the first in Australia raising the issue of climate greenwashing against the oil and gas industry.

It is also a landmark, world-first test case in relation to the viability of carbon capture and storage, and the environmental impacts of blue hydrogen, increasingly touted as a key element in gas companies’ pathways toward net zero emissions.

Santos’ claims – “Clean” gas & a “credible” net zero pathway

Santos Ltd is one of Australia’s largest gas companies, and the biggest domestic gas supplier in the country.

In Australia its major projects include oil and gas extraction off the coast of Western Australia, as well as in the vast Cooper and Eromanga Basins that span South Australia and Queensland.

Santos is also a major player in coal seam gas, developing vast areas of the Surat and Bowen Basins in Queensland and planning a major new CSG project around the northern NSW agricultural hub of Narrabri.

In 2019-20, Santos was responsible for approximately 7.74 million tonnes of CO2 equivalent emissions from its direct operations, with the end-use of the natural gas it supplied emitting an additional 28.6 million tonnes of CO2 equivalent.

Despite this, Santos describes itself as a “clean energy” provider in its 2020 Annual Report, stating that natural gas is a “clean fuel”.

It has also sought to assure investors and the public that it has a clear and credible pathway to achieve net zero emissions by 2040.

This pathway is heavily reliant on both carbon capture and storage (CCS)processes and the production of “blue hydrogen”.

However, ACCR alleges that Santos failed to disclose that it has firm plans to increase its greenhouse gas emissions by developing new or existing oil and gas project including the Barossa, Dorado and Narrabri LNG projects. ACCR also alleges that Santos failed to disclose that its net zero plans depend upon a range of undisclosed qualifications and assumptions about CCS.

In addition, although blue hydrogen is increasingly touted as a key element in gas companies’ pathways toward net zero emissions, scientists and even key gas industry figures have raised questions over its environmental impacts in comparison to other energy sources.

ACCR says that these issues call into question whether Santos had reasonable grounds to assert it has a “clear and credible” plan to reach net zero emissions by 2040.

On behalf of ACCR, we will argue that in making the above claims Santos potentially engaged in misleading or deceptive conduct under both the Corporations Act 2001 (Cth) and the Australian Consumer Law.

We are asking the court to grant an injunction requiring Santos to correct the record publicly on these statements, and prohibit Santos from engaging in similar misleading or deceptive conduct in the future.

The Impact of Greenwashing – Investors & Environment

This case is about holding gas companies like Santos to account for the claims they make about their product and future in a low-carbon world.

Our client, ACCR, is a shareholder advocacy organisation focused on how listed companies, industry associations, and investors are managing climate, labour, human rights and governance issues.

They are also investors in Santos, taking this action to ensure the company and others like it fulfil their legal responsibility to be transparent and open with shareholders like ACCR.

Companies have an obligation to be upfront and honest with investors – this is particularly important to investors who are trying to assess which companies will survive and thrive in a rapidly changing global energy economy.

Misleading information can have a dramatic effect on the market, on investors, and ultimately on the environment.

It can leave investors vulnerable to major losses. It can skew the market unfairly in favour of companies failing to adequately respond to the climate change, and unfairly away from companies that are acting responsibly.

In doing so, misleading information about natural gas and the transition towards a lower carbon economy can obstruct an effective and timely response to the climate crisis.

A genuine transition to a low-carbon energy economy is crucial if Australia is serious about meeting its commitments under the Paris Agreement and ensuring the world avoids the worst impacts of climate change.

It’s essential that energy companies play their part and are upfront and honest about their role in this crisis and the challenges they face in adapting to a low-carbon economy.

This landmark case will help to ensure energy companies like Santos are held to account for the statements they make to investors and the public in the face of the global challenge of climate change. 

IMAGE: Santos 2021 Sustainability Report

Santos Ltd is one of Australia’s largest gas companies and is reportedly the biggest domestic gas supplier in the country. This court case is challenging the veracity of a company’s net zero emissions target, the viability of carbon capture and storage, and the environmental impacts of blue hydrogen.

Santos is also a major player in coal seam gas, developing vast areas of the Surat and Bowen Basins in Queensland and planning a major new CSG project around the northern NSW agricultural hub of Narrabri.

The Motley Fool blog stated on 26 August 2021 that; The Santos Ltd (ASX: STO) share price slumped today after news broke that the company is facing a lawsuit. At market close, Santos shares are down 2.27% to $6.02. It is worth noting that this means the company’s share price is now at a new low for the 2021 calendar year.

End of trading on Friday 27 August 2021 its share price fell again to $5.57.