Doctors for the Environment (Australia) Incorporated v National Offshore Petroleum Safety and Environmental Management Authority

A person is not interested within the meaning of the rule, unless he is likely to gain some advantage, other than the satisfaction of righting a wrong, upholding a principle or winning a contest, if his action succeeds or to suffer some disadvantage, other than a sense of grievance or a debt for costs, if his action fails.

1. However, as Gibbs CJ subsequently observed in Onus v Alcoa of Australia Ltd [1981] HCA 50; (1981) 149 CLR 27 at 36, Australian Conservation does not lay down an inflexible rule: "the question what is a sufficient interest will vary according to the nature of the subject matter of the litigation".
2. More recently, in Forestry Corporation of New South Wales v South East Forest Rescue Incorporated [2025] HCA 15; (2025) 99 ALJR 794, the Court (Gageler CJ, Edelman, Steward, Jagot and Beech-Jones JJ) at [11] stated:

The treatment of standing to enforce public rights, duties or obligations as an aspect of the jurisdiction or the power to invoke the jurisdiction vested in the relevant court is consistent with standing being subsumed within the concept of a "matter" in Ch III of the Constitution. However, leaving aside any constitutional restraints, whether satisfaction of the first limb of Boyce v Paddington Borough Council or the second limb as reformulated by this Court is either sufficient or necessary for a litigant to have standing to commence and maintain proceedings to enforce public rights, duties or obligations is subject to a consideration of the statutory scheme creating and regulating those rights, duties or obligations.

1. The Constitutional requirement of matter has two elements: subject matter and a concrete or justiciable controversy: Hobart International Airport Pty Ltd v Clarence City Council [2022] HCA 5; (2022) 276 CLR 519 at [26]. There is no doubt that the first element is satisfied. The power of NOPSEMA to accept the EP is conferred by the Regulations and is constrained thereby. As to the second, "there can be no matter within the meaning of [ss 75 and 76 of the Constitution] unless there is some immediate right, duty or liability to be established by the determination of the Court": Hobart at [29], citing Re Judiciary [1921] HCA 20; (1921) 29 CLR 257 at 265. This does not however, as demonstrated by Hobart, require that for declaratory relief an applicant must identify an immediate right, duty or liability to be secured in its favour. Why that is so was explained by Gageler and Gleeson JJ in Hobart at [65] and [69]:

Though the expression of standing has been variously in terms of a "sufficient interest", a "sufficient material interest", a "special interest" or a "real interest", the conception of standing developed through that body of case law has been consistent. That conception of standing has involved recognition that a person who does not claim to have a legal right or equitable interest to be vindicated by a declaration or other order that would resolve a controversy about a right or obligation may yet have a material interest in seeking the order. In this context, an interest will be "material" if the person "is likely to gain some advantage, other than the satisfaction of righting a wrong, upholding a principle or winning a contest, if [the order is made] or to suffer some disadvantage, other than a sense of grievance or a debt for costs, if [the order is not made]". Depending on the totality of the circumstances, the material interest that the person has in seeking the order may be sufficient to justify a court entertaining the proceeding in which the order is sought.

Where a person is shown to have a material interest in seeking a declaration or other order, considerations bearing on the public interest can contribute to the sufficiency of that material interest to justify a court entertaining the proceeding in which the order is sought. A weighty public interest consideration, where it is applicable, is that the person's interest is within the scope of interests sought to be protected or advanced by the exercise of a statutory power or executive authority through which the right or obligation in controversy has come into existence. Another weighty consideration, where it is applicable, is that a party by or against whom the right or obligation is held and against whom the declaration is sought is a public authority or an executive government, which "acts, or is supposed to act, not according to standards of private interest, but in the public interest".

1. In my view, DEA has standing in this proceeding by reference to: the overarching nature of what it does, its objects, activities and interests; the engagement by DEA in pursing those activities and interests in the subject matter of NOPSEMA's decision (which has climate change ramifications); and DEA was recognised as a relevant person by Woodside for the purposes of s 25(1)(d). I explain why.
2. I find the following facts based on the unchallenged evidence of Ms Wylie, from uncontroversial documents in the court book, the statement of reasons and the EP.
3. As previously observed, DEA represents the interests of medical professionals who are at the front line of dealing with the adverse health impacts of climate change as an existential threat to the environment.
4. DEA's Constitution at clause 2 lists objects of particular relevance to the relief it seeks: particularly, to conserve and restore the natural environment and to alert doctors and the public on the health effects of environmental degradation. In support of its objects, DEA undertakes a range of activities including giving evidence and making submissions to public bodies, such as the Australian Senate Environment and Communications Legislation Committee Inquiry into the Climate Change Amendment (Duty Of Care and Intergenerational Climate Equity) Bill 2023 and the Australian House of Representatives Standing Committee on Climate Change, Energy, Environment And Water inquiry into the transition to electric vehicles. It has developed climate change resources for medical professionals, such as the Hospital Sustainability Project Tracker, which has been incorporated into pilot programs in the Northern Territory by the Australian Commission on Safety and Quality in Health Care. It organises conferences and webinars and is consulted by various governments; an example being the inquiry into the National Health and Climate Strategy in 2023. DEA is a member of the Australian Government's Climate and Health Expert Advisory Group.
5. DEA brings this proceeding in the public interest in that it contends that climate change, driven by GHG emissions, is a material threat to public health. In consequence it is concerned about the approval of projects that contribute or may contribute to the emission of GHG which has an observed relationship to adverse health impacts, physical and mental.
6. To these objects, DEA engaged with Woodside at an early stage in relation to the drafting of various iterations of environment plans for the activity. On 19 December 2023, DEA corresponded with Woodside about the project. It stated that its interests, functions and activities may be affected by the project and sought to be a consulted as a "relevant person" within s 25(1)(d) and or (e). In that correspondence DEA stated, inter alia:

[DEA] is an organisation of medical doctors that recognises the importance of protecting human health through care of the environment with a focus on the issues and events relevant in Western Australia.

[DEA] was formed in 2001, and are guided by the vision 'Healthy Planet, Healthy People'.

Based on the latest evidence we demonstrate the important health benefits of clean air and water, biodiverse natural places, stable climates and sustainable health care systems.

We raise the alarm and act when public health is threatened by environmental problems such as climate change, air pollution, fossil fuel impacts and deforestation.

We are considered the leading medical organisation in Australia for providing accurate scientific information on the relationships between climate change, other environmental harms, and health.

We educate and alert colleagues, patients, the public, business and industry, and politicians to understand:

• The requirement for a healthy natural environment for good human health.
• The need to prevent and redress environmental degradation locally and globally.
• The need for sustainable development that meets the needs of the present generation without compromising future generations.
• The use of the best available scientific evidence as the basis for decisions, and the precautionary principle where the evidence is unclear.

[DEA] is active in areas of publication, education, submissions, research, and advocacy. For examples of these and further information on our interest and activities we refer you to our website https://dev.dea.org.au/.

1. Woodside did consult with DEA and accepted that it had demonstrated "an interest with the potential risks and impacts associated with planned activities in accordance with the intended outcome of consultation": EP Appendix F, page 43. A detailed summary of the consultation between DEA and Woodside and the outcome is set out in Appendix F at pages 416 - 453 of the EP. The consultation occurred between August 2023 and October 2024. To an extent, the views of DEA were included in the EP as demonstrated in the table commencing at page 437. In particular there is this:

1. On those facts, it is surprising that Woodside now contends that DEA does not have standing to challenge the lawfulness of the outcome of the consultation process. Nonetheless, its submission must be addressed on merit.
2. Woodside submits that engaging in consultation, even making representations, is insufficient and places particular reliance on Australian Conservation at 525. However, Australian Conservation concerned a radically different statutory scheme pursuant to the Environment Protection (Impact of Proposals) Act 1974 (Cth) and certain administrative procedures through which the Australian Conservation Foundation (ACF) had made submissions about a proposal. The salient point made by Gibbs J at 525 was that by making a submission the ACF did not thereby acquire any right "to ensure that [its] comments were taken into account in the final environmental impact statement". Immediately, the clear distinction with the scheme of the Regulations is apparent. Here, Woodside was bound by s 25 to consult in the preparation of the EP and to include within it a report as to the outcome of each consultation, including an assessment of the merit of any objection or claim about the adverse impact of the activity together with its response, or proposed response, if any: s 24. Understood in that way, the statutory scheme is the foundation for the justiciable controversy between DEA, Woodside and NOPSEMA. It is not necessary for DEA to have a legal or equitable right or interest if it has a material interest in declaratory relief that the EP is void and of no effect.
3. DEA is concerned with ensuring that the EP correctly addresses GHG emissions conformably with the obligation to evaluate all of the environmental impacts and risks arising directly or indirectly from the operation of the activity. The purpose of requiring the EP to address those risks is to ensure protection of the environment or, to use the language of the objects clause of the Regulations, to ensure that the activity is carried out consistently with the principles of ecologically sustainable development, in a manner by which the environmental impacts and risks will be reduced to as low as reasonably practicable and that such impacts and risks will be of an acceptable level.
4. A useful analogy is the decision of the Full Court in Animals' Angels e.V. v Secretary, Department of Agriculture [2014] FCAFC 173; (2014) 228 FCR 35, Kenny, Robertson and Pagone JJ. That case concerned a challenge to a decision by the Secretary not to issue a show cause notice relating to the live export of livestock pursuant to the Australian Meat and Live-stock Industry Act 1997 (Cth). The proceeding was framed pursuant to the ADJR Act and the Judiciary Act. The primary judge concluded that the applicant lacked standing. The Full Court disagreed. The applicant established that it was an international organisation concerned with the adverse consequences of live animal exports. Its activities included monitoring the loading of live export shipments from Australia. It contended that the loading of a particular vessel contravened various Australian standards for the export of livestock. In correspondence it urged the Secretary to investigate the facts as presented and to act with a view to suspending the export licence, commencing with the issue of a show cause notice.
5. The applicant employed Australian investigators and had an Australian representative. Justices Kenny and Robertson extensively essayed the objects of the applicant, accepted its concerns about the transport and export of live animals for slaughter, accepted that it was a charitable organisation and that its funds were devoted for the long-term improvement of animal welfare and ultimately concluded at [120] that it had a special interest sufficient to establish standing:

Considering in turn each of the matters on which the primary judge relied for his conclusion in relation to the appellant's standing: in our opinion the appellant does have sufficient presence in Australia; it has been recognised in Australia by the relevant department of the Commonwealth; it has devoted financial resources to animal welfare in Australia sufficient to found the activities to which we have referred; not a great weight attaches to the appellant's status or standing with respect to other bodies concerned with animal welfare; the broader and global nature of the appellant's objects or purposes do not derogate from the appellant's engagement in Australia; the appellant's Australian activities do intersect with the appellant's objects or purposes; and the nature of the decision sought to be reviewed directly impacts on animal welfare, which is at the centre of the appellant's objects or purposes.

1. It was not for the applicant to establish that its position was unique or that it had an interest greater than others who may have an interest: [121]. Although each case is fact-specific, there are obvious similarities with the present. DEA is a charitable organisation, its objects are consistent with the controversy that it seeks to have resolved in this proceeding, it was recognised and accepted by Woodside as a person required to be consulted pursuant to the Regulations and it engaged in an extensive process of consultation with Woodside. Woodside reported its consultation with DEA in the EP and, in certain respects, included provisions in the EP reflective of the consultation process. In doing so, it represented doctors and health professionals who are concerned about the adverse health impacts of environmental degradation caused by GHG emissions.
2. DEA is the representative of a large number of medical practitioners, students and allied professionals who are faced with treating the health impacts faced by humanity caused by climate change. It has engaged in activities relevant to its statutory objects, including, the promotion of awareness of the health impacts of climate change. Essentially DEA contends in this proceeding that, despite it being consulted, the EP does not comply with mandatory obligations and the statutory scheme to address GHG emissions and the link with adverse impacts on human health.
3. DEA seeks relief against a public body that is required to act in the public interest in its decision-making. The relief that it seeks is not hypothetical and resolution of whether the EP complies with the requirements of the statutory scheme is of real practical importance to the advancement of its objects, the interests of its members and whether the EP was validly accepted: cf Hobart at [36].
4. It follows that there is a matter within federal jurisdiction for the purposes of the relief sought pursuant to the Judiciary Act. It is unnecessary to separately consider whether DEA is a person aggrieved within the meaning of the ADJR Act.

1. Before considering the individual review grounds, I commence with the fundamental contentions of DEA that underpin all the grounds. In very broad summary it is whether the regulatory scheme requires specificity and certainty as to the likely future environmental impacts and risks of the activity and, correspondingly, requires the formulation of precise environmental performance outcomes, environmental performance standards and control measures.

1. The submissions commence with the interrelationship between environmental performance outcomes and control measures. This is the territory of grounds 1, 2, 6, 7, 11 and 12 (control measures) and 4 and 9 (environmental performance outcomes).
2. Section 34(d) provides that one criteria for acceptance of an environment plan is that it "provides for appropriate environmental performance outcomes, environmental performance standards and measurement criteria". An environmental performance outcome for an activity is defined as meaning "a measurable level of performance required for the management of environmental aspects of the activity to ensure that environmental impacts and risks of the activity will be of an acceptable level": s 5.
3. DEA submits that the essential defect of the EP is that it does not state or define an acceptable level of Scope 3 GHG emissions.
4. Mr Young developed that submission sequentially. The hierarchical structure of the statutory scheme commences with control measures, followed by environmental performance standards, environmental performance outcomes and then measurement criteria. Although s 33(7) turns on the evaluative judgment of NOPSEMA, nonetheless it could not be reasonably satisfied as a matter of law that the EP met the environment plan acceptance criteria if it misunderstood the acceptance criteria. The scheme at s 34 provides for the mandatory content of an environment plan (the environment plan acceptance criteria). Objectively, if the EP does not contain, demonstrate, provide for and include the matters at s 34(a)-(h), then it was not open to NOPSEMA to be reasonably satisfied as required by s 33(7).
5. In order for NOPSEMA to evaluate whether the EP satisfied the environment plan acceptance criteria it must be placed into the position whereby it is able to assess whether or not the environmental impacts and risks of the activity will be of an acceptable level. Accordingly, there must be a statement of what that acceptable level is, otherwise it is not possible to determine the measurable level of performance for an activity.
6. Emphasis is placed on Santos NA Barossa Pty Ltd v Tipakalippa [2022] FCAFC 193; (2022) 296 FCR 124 (Kenny, Mortimer and Lee JJ) which concerned an earlier version of cognate provisions in the Offshore Petroleum and Greenhouse Gas Storage (Environment) Regulations 2009 (Cth) (2009 Regulations). At [110], Kenny and Mortimer JJ crisply observed, by reference to numerous authorities, that to be reasonably satisfied "requires a state of satisfaction to be formed reasonably, rationally, and on a correct understanding of the law".
7. Reliance is also placed on Cooper v National Offshore Petroleum Safety and Environmental Management Authority (No 2) [2023] FCA 1158 at [59] where Colvin J was concerned with the contention that NOPSEMA did not have power to make a decision to accept an environment plan where it was not reasonably satisfied that the consultation required by the statutory scheme had been undertaken. His Honour commenced his reasoning to resolve the issue by observing:

As was explained in Tipakalippa, the nature of the regulatory scheme is such that NOPSEMA is materially dependent upon the consultation undertaken by the titleholder in order to identify all environmental impacts and risks. The fundamental importance of the consultation is reflected in the requirement for the inclusion of the report as to the consultation in the environment plan that is submitted for acceptance by NOPSEMA. The separate opportunity in the case of a seismic or exploratory drilling plan for public submission is addressing a different concern. Further, that separate requirement does not apply to all activities and there is no basis for a different approach as to the significance of the consultation criteria in the case of seismic or exploratory drilling compared to other activities. Only upon completion of the consultation as required by criteria in reg 10A(g) and the provision of a report of that complete consultation does NOPSEMA have the foundation to evaluate whether the other criteria have been met. Regard to the other criteria in reg 10A reveals that, amongst other things, they require an understanding of the environmental impacts and risks in order to apply them. Those impacts and risks must be demonstrated to be as low as reasonably practicable and of an acceptable level. In addition, there must be appropriate environmental performance outcomes, environmental performance standards and measurement criteria. An evaluative judgment could not be formed as to those matters without knowing the environmental impacts and risks. Likewise, whether the implementation strategy and monitoring, recording and reporting arrangements are appropriate.

(emphasis added)

1. DEA places particular reliance on the emphasised part of his Honour's reasons.
2. Turning to the content of the EP, Mr Young identified four "critical matters" in support of the submission. The first is Table 6.7.6 (page 335) which is concerned with routine and non-routine GHG emissions. It is unnecessary to reproduce the table. It discloses acceptance that Scope 3 GHG emissions from the activity will add to global atmospheric GHG concentrations. Further, the EP accepts that climate change is caused by the net global concentration of GHG, human caused climate change is a consequence of more than a century of GHG emissions and there is a near linear relationship between cumulative anthropogenic CO2 emissions and global warming. Thus, that relationship "becomes critical to an understanding whether there is or is not an environmental impact".
3. Second, the EP proceeds (page 335) on the basis that global atmospheric GHG concentrations is the environmental impact in issue.
4. Third, indirect GHG emissions are proportional to total production from the activity (page 343).
5. Fourth, a fundamental premise of the EP is that gas is likely to displace reliance on more carbon intensive fuel sources (pages 355-357, the displacement assumption). This finds further elaboration in many parts of the EP. An illustration is (page 356):

Woodside's analysis of the NDCs and key policy documents of key customer nations is that LNG has an important role in supporting their decarbonisation plans under the Paris Agreement. If the introduction of Scarborough LNG into the global energy market serves to reduce GHG emissions elsewhere, then in Woodside's view the full volume of GHG emissions associated with the project are not expected to be additive to global GHG concentrations.

1. The criticism DEA makes of this reasoning is that, whilst accepting that GHG emissions from the activity will add to global atmospheric GHG emissions, no attempt is made in the EP to calculate what volume of emissions as indirect consequences of the activity are likely to be additive to global atmospheric GHG emissions. That is because of the failure of the EP to identify an acceptable level of emissions related to the indirect environmental impacts. The submission does not contend that the acceptable level must be a metric, but that would be one way of determining it. However, by whatever methodology is employed, the EP must identify and NOPSEMA must accept what level of Scope 3 GHG emissions is acceptable. Once that is done, NOPSEMA is able to make the evaluative assessments required by s 33(7).
2. It will have been noticed that there is an analysis in the EP which concludes that Scope 3 GHG emissions (162 MtCO2-e over five years or 778 MtCO2-e over the anticipated life of the project: Table 6-22), on the assumption that those emissions are entirely additive to global GHG concentrations, will have a negligible or de minimis impact on the global carbon budget required to meet the goals of the Paris Agreement: 0.33% (1.5°C) or 0.07% (2°C), which estimates are calculated at Table 6-25.
3. DEA characterises this as the alternative hypothetical scenario, which is not the case made in the EP and is not the case that NOPSEMA accepted. It submits that follows from the absence of any reference in the statement of reasons to the negligible or de minimis impact hypothetical. The submission continues that Woodside cannot "hide behind hypothetical scenarios and analysis to do what the Regulations require it to do directly". When I questioned Mr Young whether it might be concluded that the impact assessments in Table 6-25 are by necessary implication the acceptable level of Scope 3 GHG emissions, his submission was that it must be expressed as the acceptable level because of the centrality of an acceptable level of impact to what measurable level of performance is required to ensure that the environmental impacts and risks of the activity will be acceptable. That is not a matter of implication where s 34(c) requires demonstration of that to the reasonable satisfaction of NOPSEMA. Mr Young maintained that submission despite that, on one view, EPO 29 does set an acceptable level of Scope 3 GHG emissions by providing that they "shall remain below 162 MtCO2-e over the 5-year operational span of this EP revision."
4. Emphasis is next placed on how the EP addresses the environmental performance outcome for Scope 3 GHG emissions. Section 34(d) requires the EP to provide for "appropriate environmental performance outcomes". For the activity proposed by Woodside, Table ES-0-1 of the OPP identifies climate change as an impact or risk of the proposed activity. What is absent from the EP is a measurable level of performance outcomes for the environmental impacts. That defect flows from the absence of a statement of what is the acceptable level of impact. Because performance must be a measurable level, the EP is required to include that measure. It is not said that the measure must be an ascertained quantifiable figure; rather there must be some mechanism by which the measurable level of performance can be ascertained.
5. It was submitted that this argument finds support in the Explanatory Statement to the Offshore Petroleum and Greenhouse Gas Storage Legislation Amendment (Environment Measures) Regulation 2014 (Cth), which introduced the definition of environmental performance outcome. In that document it was said at page 8:

The word "objective" has also been changed to "outcome" as the former was relatively vague and suggested a desirable or aspirational level of performance rather than a firm outcome that a titleholder commits to achieve in practice. Changing the term ensures that title holders are aware that they must set specific, measurable benchmarks for their environmental performance, that can be monitored and enable a determination as to whether those outcomes are being met.

1. The interrelationship between an acceptable impact level for the environmental risks of the activity with control measures, environmental performance standards and measurement criteria was next addressed. A control measure (relevantly for present purposes) means a system or procedure that "is used as a basis for managing environmental impacts and risks of an activity". The submission is this requires that a control measure "must take a particular form, and have a clear relationship with the reduction of the environmental impacts or risks of a proposed activity, and must be capable of implementation and of being monitored for the effectiveness".
2. CM 6.20 is one of the controls for EPO 29. It will be recalled that this provides that Woodside will undertake an annual review process "to address uncertainty in the impact assessment" including "reassessment of the role of gas in the energy transition and its potential to contribute to the net displacement of more carbon intensive energy sources". This process may result in the "application of additional management measures if triggered by conclusion" that gas is not having the anticipated displacement effect. The corresponding environmental performance standards at 6.20.1 and 6.20.2 speak to an assessment of the role of gas in the energy transition process to be undertaken on an annual basis and that adaptive "management measures" will be implemented if gas is "not contributing to the global energy transition" or "displacing more carbon intensive fuels".
3. The specific criticism that DEA makes is that, because the EP does not identify what the additional management measures are, it should be inferred that they do not exist and hence this control measure is no more than a statement that something might be done in the future. Control measures cannot be used as a basis for managing environmental impacts if no acceptable level of impact or risk is identified.

1. At the outset in oral submissions Mr Clothier for Woodside responded to the five key decision points identified by DEA. First, there is no controversy in the EP that there is a near linear relationship between cumulative anthropogenic CO2 emissions and global warming and, to the extent that Scope 3 GHG emissions would be additive, there would be some impact.
2. Second, whilst it is uncontroversial that environmental impacts and risks must be evaluated, (they were in the EP) there is no obligation to formulate an environmental performance outcome or a control measure in respect of each identified impact and risk. It is open to state in an EP that an impact or a risk does not require a control measure or a corresponding environmental performance outcome.
3. Third, the Regulations do not require an EP to state an acceptable level of impact for each environmental impact and risk. Alternatively, if there is such requirement, the EP complied for Scope 3 GHG emissions.
4. Fourth, control measures need not be prescriptive or rigid. There is nothing in the regulatory scheme which prohibits flexibility in the formulation of control measures; a process may be identified which in turn leads to reviews and implementation of new measures in the future. This flows from recognition that an environment plan is a point in time assessment.
5. Fifth, the Regulations apply to any petroleum activity or GHG activity carried out in an offshore area. The range and scale of activities is necessarily broad. Some activities will have little environmental impact, whilst others may have significant impacts. Impacts and risks may be capable of precise quantification and measurement in some cases, but not all. A fundamental flaw in the arguments for DEA is that they do not recognise that quantification and prescription may not be possible for all activities or all environmental impacts or risks. Similarly, some impacts and risks may not be susceptible to precise management measures.
6. Control measures include systems or procedures that are used as a basis for managing environmental impacts and risks. There is no requirement that a control measure be identified for each impact or risk. There is no prescribed process by which NOPSEMA must be satisfied an environment plan meets the environment plan acceptance criteria: the statutory scheme leaves this to the evaluative judgment of NOPSEMA.
7. The last point reflects the fact that impacts and risks may be numerous and diverse. To construe the statutory scheme as submitted by DEA is to place an unnecessary and unwarranted constraint upon the inherent flexibility for which the scheme provides. There is no basis in the text, context or purpose to apply a prescriptive construction. Environmental performance outcomes are only one component of what is required to manage the environmental impacts and risks of an activity. The requirement is to ensure that environmental risks and activities are determined against a measurable level of performance. It is in that context that the assessment of whether the management of such impacts and risks will be of an acceptable level is to be understood. There is no requirement that a measurable level of performance must be quantifiable at a point in time. The Regulations proceed on the basis that activities may be undertaken over an extended period. Necessarily predictions and assessments must be made as to future environmental impacts and risks. The future is necessarily uncertain. Where the primary consideration in this case is the impact of Scope 3 GHG emissions, the EP proceeds on the basis that total atmospheric GHG emissions cannot be calculated with certainty. The Regulations necessarily accept a level of uncertainty in predicting and estimating future environmental risks and impacts, which is inconsistent with any requirement that they must be quantified for something inherently incapable of such estimation.
8. Additionally, although there is no requirement to quantify an acceptable level for Scope 3 GHG emissions, the EP proceeds on the basis that such emissions are an indirect consequence of the activity and will be entirely additive to total GHG atmospheric concentrations. On that basis the EP proceeds on a worst-case scenario and concludes that an acceptable level of impact is anything below 162 MtCO2-e of Scope 3 GHG emissions over a period of five years as stated in EPO 29. There is nothing in the regulatory scheme which prohibits a titleholder from proceeding on that basis. The ultimate conclusion of the EP is that on the worst-case assumption the environmental impacts and risks of the activity will be reduced to as low as reasonably practicable and will be of an acceptable level. Particular emphasis is placed on the EP conclusion to that effect (at page 378, set out above).

1. Mr Lenehan for NOPSEMA commenced his oral submissions by identifying that which he described as "the fundamental flaw" that lies at the heart of the DEA case. That is the intense focus on the statutory definitions without reading into the operative provisions and understanding the entirety of the scheme in context, having regard to the objects and purpose: Kelly v R [2004] HCA 12; (2004) 218 CLR 216 at [103], McHugh J.
2. There is an identifiable hierarchy in the regulatory scheme expressed at s 34. The environment plan must be appropriate for the nature and scale of the activity. Thereafter the first consideration is whether it demonstrates that the environmental impacts and risks will be reduced to as low as reasonably practicable. If that requirement is met, the next consideration is whether it demonstrates that the environmental impacts and risks will be of an acceptable level. Acceptability does not require specificity or quantification in demonstrating the reduction of impacts and risks to as low as reasonably practicable. Properly understood, an acceptable level is a label "for expressing a policy-based conclusion about what is, in fact, proposed under the plan". So understood, this may involve quantification, but not necessarily so. The objects at s 4 acknowledge as much.
3. That, the submission continues, is the analysis of Charlesworth J in Munkara v Santos NA Barossa Pty Ltd (No 3) [2024] FCA 9 at [152] - [153], when considering the equivalent provision in the 2009 Regulations:

For the purposes of paragraph (a) of those objectives, the relevant principles are the "principles of ecologically sustainable development" set out in s 3A of the Environment Protection and Biodiversity Conservation Act 1999 (Cth) (EPBC Act). They include:

(b) if there are threats of serious or irreversible environmental damage, lack of full scientific certainty should not be used as a reason for postponing measures to prevent environmental degradation;

(c) the principle of inter-generational equity-that the present generation should ensure that the health, diversity and productivity of the environment is maintained or enhanced for the benefit of future generations;

Two things may be said of those principles. First, there is an objective to prevent harm, taking precedence over an approach that remediates or repairs harm once done. Secondly, there is a focus upon measures being taken to reduce, eliminate or minimise risk, even if it is not possible to scientifically determine the precise degree of risk, or the precise nature of the harm that might be caused should the risk transpire. That principle is one relating to threats of serious or irreversible environment damage. Paragraphs (b) and (c) of reg 3 reinforce those principles to an extent, however they also make it plain that the objective of the Regulations is not to eliminate or avoid risk altogether. The phrases "as low as reasonably practicable" and "acceptable level" are highly evaluative and context sensitive.

1. Like Woodside, NOPSEMA submits that future impacts and risks are necessarily attended with uncertainty and the impact of Scope 3 GHG emissions is a matter for evaluative and context sensitive assessment. Once that is understood, there is no warrant for a narrow reading of the provisions so as to import a requirement for prescription. Put another way, the regulatory scheme does not require a singular or quantifiable solution of how environmental impacts and risks of an activity will be reduced to as low as reasonably practicable or to an acceptable level. Each is a statement of evaluative conclusion left to assessment by NOPSEMA. Each ground of review invites interrogation into the merits of the Decision because they seek to inquire into and evaluate a fact specific decision.
2. More particularly, s 21(5)(c) does not provide that every item that is described in an environment plan as a control measure must meet the definition of a control measure. Rather, it speaks to the inclusion of "details of the control measures" that will be implemented. That does not impose an obligation for NOPSEMA to be satisfied that every item in the EP described as a control measure meets the definition. The scheme is designed to address the assessment of a range of petroleum and GHG generating activities, some of which may be complex and involve risks and impacts that are a matter of prediction and which cannot be precisely identified when the environment plan is prepared. Accordingly, it does not preclude the implementation of adaptive management strategies and measures to trigger future review and the implementation of further control measures.
3. There is no requirement that a control measure must take a particular form. Form concerns the sufficiency of the proposed control measure, which is a matter for NOPSEMA.
4. The grounds of review impermissibly invite this Court to examine the sufficiency (or adequacy) of each control measure, environmental performance standard, environmental performance outcome and management control and to substitute its view for that of NOPSEMA. By analogy with Tipakalippa v National Offshore Petroleum Safety and Environmental Management Authority (No 2) [2022] FCA 1121 at [267] - [269], Bromberg J, the question is not whether there has been compliance with each of the criteria in s 34 to the satisfaction of the Court, but whether as a subjective fact there has been compliance to the reasonable satisfaction of NOPSEMA.
5. There is no requirement expressed in the definition of control measure that management measures must exist at the time of completion of an environment plan. Properly understood a control measure extends to a system or a procedure, which may include future measures that are yet to be determined if other or new environmental impacts or risks are identified. Whilst specificity may be desirable, it is not necessary.
6. Similarly, there is no reason why an environmental performance outcome requires expression of a spectrum of performance and identification of a level of performance on that spectrum. Performance is capable of expression at a measurable level at a high level of abstraction. The EP frequently references management controls which is not a statutory concept, as distinct from control measures. It does so in the context of adaptive management measures or techniques. There is no prohibition in the regulatory scheme upon the implementation of types of adaptive measures to be determined at a future point in time as circumstances require.
7. There is nothing in the definition of control measure which precludes the identification of a target as a control measure. Having identified targets is perfectly consistent with the requirement to implement systems or procedures as a basis for managing environmental impacts and risks of an activity.
8. The undefined statutory concepts of acceptable level and as low as reasonably practicable operate as separate criteria. As low as reasonably practicable is capable of addressing what more could be done once an acceptable level is achieved. In this case, EPO 29 does not cease to be an environmental performance outcome simply because it does not specify how far below a stated value of Scope 3 GHG emissions will or will likely be achieved. On any view, the outcome will be achieved if Scope 3 GHG emissions are less than that amount. Though specificity and detail "may generally be desirable in control measures", the degree of detail is context specific. That there may be alternative or better ways of identifying an acceptable level of impact is not to the point.

1. The principles applicable to the construction of delegated legislation are no different from statutes: Disorganized Developments Pty Ltd v South Australia [2023] HCA 22; (2023) 97 ALJR 575 at [14]- [15], Kiefel CJ, Gageler, Gleeson and Jagot JJ.
2. The summary of overarching submissions identifies as the first premise of the argument for DEA a statutory obligation that Woodside must identify and define an acceptable level of Scope 3 GHG emissions. This finds clear expression in ground 9:

EPO 29: non-compliance with OPGGS Regulations (reg 34(h))

The EP did not comply with the OPGGS Regulations, and so NOPSEMA could not have been reasonably satisfied that the EP did comply with the OPGGS Regulations, because:

(a) one of the environmental performance outcomes identified by NOPSEMA in the Reasons and listed in the EP for control measure C 6.17 was EPO 29 which stated "Estimated GHG emissions associated with third party transport, regasification, distribution and end use shall remain below 162 MtCO2-e over 5 year operational span of this EP revision";

(b) the EP stated that estimated GHG emissions over the 5 year operational span of the EP from third party transport of products, regasification, distribution and end use were 162 MtCO2-e;

(c) EPO 29 is not an "environmental performance outcome" as defined in the OPGGS Regulations as without stating by how many metric tonnes estimated GHG emissions would "remain below" the stated threshold, it cannot be said or concluded in respect of the EPO that it would "ensure that environmental impacts and risks of the activity will be of an acceptable level".

EPO 11: non-compliance with OPGGS Regulations (reg 34(h))

The EP did not comply with the OPGGS Regulations, and so NOSPEMA could not have been reasonably satisfied that the EP did comply with the OPGGS Regulations, because:

(a) one of the "environmental performance outcomes" identified by NOPSEMA in the Reasons and listed in the EP for control measure C 6.20 was EPO 11 which stated "Woodside will support customers to reduce their GHG emissions";

(b) EPO 11 is not an "environmental performance outcome" as defined in the OPGGS Regulations as:

1. it does not set a measurable level of performance;
2. it does not provide anything against which the performance of Woodside is to be measured.

1. If these pivotal contentions are incorrect, a number of the review grounds fall away as they are interdependent and may be shortly dealt with.
2. In my view, DEA incorrectly commences the construction task by focusing on the reference to an acceptable level of impact and risk within the definition of environmental performance outcome. As I explain, the regulatory scheme is interdependent, consisting of multiple components where what is an acceptable level of impact and risk is one outcome of a hierarchical evaluative assessment, of which there are multiple moving parts. An acceptable level of impact and risk is not mandated as the starting point of the analysis.
3. The Storage Act provides that NOPSEMA is responsible for a range of activities including such functions conferred on it by or under the Act "in relation to offshore petroleum environmental management in connection with operations in Commonwealth waters" and more generally "offshore petroleum environmental management in connection with operations in Commonwealth waters": s 646(gg). The concept of offshore petroleum environmental management is defined at s 643 of the Storage Act as meaning "the prevention, management, mitigation or remediation of the environmental impacts of regulated operations that relate to: (a) the exploration for petroleum; or (b) the recovery, processing, storage, offloading or piped conveyance of petroleum". As might be expected, petroleum is defined as including any naturally occurring hydrocarbon, whether in gaseous, liquid or solid state: s 7 of the Storage Act. These definitions when read with the broad objects of the Regulations (s 4) reveal the vast operational territory of the regulatory scheme which, according to the statement of objects, is to ensure that any petroleum activity or GHG activity carried out in an offshore area occurs in a manner consistent with the principles of ecologically sustainable development by which the environmental impacts and risks will be reduced to as low as reasonably practicable and will be of an acceptable level. A petroleum activity means operations or works in an offshore area undertaken for the purpose of exercising a right conferred on a petroleum titleholder or in discharging an obligation imposed on a petroleum titleholder by the Act or a legislative instrument: s 5. A titleholder must have in place an accepted environment plan for the undertaking of any activity under a title, and all operations must comply with its terms: ss 17 and 18. The reference in these provisions to an activity is significant. This means a petroleum activity or a GHG activity and includes, where the context permits, a proposed activity or any stage of an activity.
4. As the respondents correctly submit, the regulatory scheme is designed to apply to all types of petroleum activities or GHG activities, large or small, important or unimportant, and then to each stage of such activities. The regulatory scheme is designed to provide for a bespoke environment plan appropriate for the nature and scale of the activity and the consequential environmental impacts and risks. Prescription or other forms of mandated quantification for acceptable levels of managed environmental impacts and risks is not an express feature of the scheme and there is no support for an implication to that effect in the text read in context having regard to the regulatory purpose. Although the Explanatory Statement extract relied on by DEA explained the alteration in drafting from environmental performance objective to environmental performance outcome and in doing so emphasised that titleholders must set specific or measurable benchmarks, it did so in the context of permitting environmental performance to be monitored to determine whether outcomes are being achieved. One mechanism to manage environmental impacts and risks are control measures, which may include systems and procedures, which are measured according to environmental performance standards. The purpose of a control measure is to reduce environmental impacts and risks to as low as reasonably practicable and an acceptable level: s 21(5). There is no requirement for a control measure to be a specific benchmark. And as I explain, there is no such prescription for the reduction of impacts and risks to as low as reasonably practicable or to an acceptable level in the substantive sections of the Regulations. Ultimately, the task is to construe the regulatory scheme by giving meaning to the text, and not to give displacing effect to the Explanatory Statement. In any event, the Explanatory Statement reference to specific measurable benchmarks invites consideration of the various shades of meaning of specific and relatedly specify. There are degrees of meaning, some of which do not require explicitness as stated by Bryson J, albeit in the context of a development approval case, in Ludwig v Coshott (1994) 83 LGERA 22 at 38 observed:

"'Specify' and its derivatives are capable of referring to a wide range of degrees of specificity; the article in the Oxford English Dictionary well illustrates this, as many different degrees of specificity can be indicated by mentioning, speaking of or naming something definitely or explicitly, or setting down or stating something categorically or particularly; one can be definite without being explicit, and particular without being categorical.

1. These observations assume greater force when one turns to the required content of an environment plan, as provided for in the operative provisions at ss 20 and 21. The first requirement is to set out a description of the activity, including its location, general details of the construction and layout, an outline of the operational details and proposed timetables and "any additional information relevant to consideration of environmental impacts and risks of the activity": s 21(1)(d). The next content requirement is that the environment plan must "describe the existing environment that may be affected by the activity" and "include details of the relevant values and sensitivities (if any) of that environment": s 21(2). The environment is broadly defined as including "ecosystems and their constituent parts, including people and communities" which for present purposes is accepted as including the atmosphere, extending to the global atmosphere.
2. Pausing at that point, the obligation to describe the environment is not limited to the extent that it will be, will likely be or may substantially be affected by the activity: the obligation speaks to the existing environment that may be affected. It is difficult to conceive of a broader inquiry that the titleholder must undertake in formulating the content of an environment plan for, relevantly here a petroleum activity, extending to any other additional information that is relevant to a consideration of the environmental impacts and risks of the activity. These obligations may be comfortably applied to discrete components of the activity where the environmental impacts and risks are limited; for example, to one or more MNES that are inclusively listed at s 21(3). Where that is so, prescription and specificity in identification of impacts and risks reduced to as low as reasonably practicable and an acceptable level may be straightforward; achieved by a metric or identified measure.
3. To illustrate, the EP separately addresses the MNES list commencing with Tables 4-2 and 4-3 (page 103) where, inter alia, the potential impact on 52 listed threatened species is noted. One such species is Balaenoptera musculus (Blue whale), listed as endangered and where the migration route is known to occur within an area of potential impact (page 122). One potential impact relates to routine acoustic emissions from the conduct of operational activities.
4. EPO 8 states that there will not be any injury of or mortality to any listed marine fauna as a result of the noise generated by the activity. EPO 9 states that there will be no displacement of marine turtles or Blue whales from critical habitat during nesting or breeding to ensure that biologically important behaviour can continue in biologically important areas. One of the corresponding control measures provides that where activities are undertaken during the migration period (from April to July and October to January) positioning and mooring activities will only be undertaken when there have been no sightings of Blue whales for a period of at least 30 minutes (page 311).
5. Similar logic applies to smaller scale activities, where environmental impacts and risks are readily identifiable and confined. The Regulations are designed to cover the full spectrum of offshore petroleum and GHG activities that must be identified and assessed in an environment plan and, if accepted, undertaken and managed in accordance with it. Self-evidently, some impacts and risks may be difficult to identify and not susceptible to quantification or prescription in making as low as reasonably practicable and acceptable level assessments.
6. Once the environment plan has described the activities and the existing environment that may be affected by it, including details of the relevant values and sensitivities (if any) of the environment, the next obligation (apart from identification of existing external controls at s 21 (4)) is the requirement to include details "of the environmental impacts and risks of the activity" and "an evaluation of all the environmental impacts and risks, appropriate to the nature and scale of each impact or risk": s 21(5).
7. Thus, the flexibility of the regulatory scheme is revealed. An evaluation that is appropriate to the nature and scale of identified impacts and risks is concerned with that which is suitable (appropriate). Some impacts and risks will be slight and may not require any control measures to reduce the impacts or risks to as low as reasonably practicable and of an acceptable level as required by s 21(5)(c). Conversely, other environmental impacts and risks as evaluated may be significant and, despite the implementation of control measures, where as low as reasonably practicable may still be of an order of significance.
8. These are matters left to assessment by NOPSEMA in determining whether it is reasonably satisfied that an environment plan meets the environment plan acceptance criteria. It is to be noted that the criteria at s 34 includes an assessment by NOPSEMA of whether the environment plan provides for "appropriate environmental performance outcomes, environmental performance standards and measurement criteria": s 34(d). The point made by Charlesworth J in Munkara at [153] (albeit concerned with the 2009 Regulations) remains valid: as low as reasonably practicable and acceptable level are "a highly evaluative and context sensitive". So understood, it is problematic to approach the construction task from the commencing point of the DEA submissions with intense focus on the individual phrases within the definition of environmental performance outcome: "a measurable level of performance" and "will be of an acceptable level".
9. I explain why. Without equivocation, Mr Young's submission is that to be an environmental performance outcome, the acceptable level of environmental impact and risk "must be defined". The underpinning logic is that identification of an acceptable level of impact is a necessary precondition to the ability of NOPSEMA to evaluate whether the environmental performance outcomes are met. Those are the steps required by s 34(c) and (d). For Scope 3 GHG emissions from the activity, 162 MtCO2-e over 5 years and 778 MtCO2-e over the project life cycle are estimates of the total Scope 3 GHG emissions. The submission continues that the EP does not state that these are the acceptable levels. Necessarily, the acceptable levels must either be these estimates or some lesser figure, in each case with justification.
10. I am unable to accept the submission. The argument focuses too heavily on the definitions of control measure, environmental performance outcome and environmental performance standard. One must first understand the regulatory hierarchy. As explained by McHugh J in Kelly at [84] "a legislative definition is not or, at all events, should not be framed as a substantive enactment" and when addressing the function of definition provisions at [103] stated:

It is to provide aid in construing the statute. Nothing is more likely to defeat the intention of the legislature than to give a definition a narrow, literal meaning and then use that meaning to negate the evident policy or purpose of the substantive enactment.

1. The definitions in the Regulations are not the controlling provisions nor do they determine the hierarchy of controls. The starting point is s 34 in setting out the criteria for acceptance of an environment plan for an activity. The constructional logic is immediately apparent. One commences with a plan that is appropriate to the nature and scale of the activity. Step one therefore requires a suitability assessment by reference to the nature and scale of the activity. This is not cast in terms of ordination or a requirement to formulate rigidly. Necessarily it accommodates such flexibility as is appropriate to the particular activity that is proposed and with its characteristics.
2. The second requirement is for the plan to demonstrate that the environmental impacts and risks will be reduced to as low as reasonably practicable. Absent a definition of what is meant by the phrase, the construction task requires identification of the legal meaning, which sometimes though not always coincides with the ordinary grammatical meaning: South Western Sydney Local Health District v Gould [2018] NSWCA 69; (2018) 97 NSWLR 513 at [78] - [83], Leeming JA.
3. In my view the phrase bears the ordinary and natural meaning which is well understood and frequently employed in workplace health and safety legislation. Here, manifestly, it replicates multiple obligations that were contained in the Offshore Petroleum and Greenhouse Gas Storage (Safety) Regulations 2009 (Cth) (now replaced by the Offshore Petroleum and Greenhouse Gas Storage (Safety) Regulations 2024 (Cth)). The 2009 version required facilities to be designed, constructed, installed and operated only in accordance with an approved safety case. A stated object at s 1.4 was to "ensure that the risks to the health and safety of persons at facilities are reduced to a level that is as low as reasonably practicable". To that end, each of the required safety assessments and safety management systems were obliged to identify control measures and safety management systems to reduce the level of identified risks accordingly: ss 2.5(2) and (3). It is a risk assessment and management tool.
4. What is meant by the phrase (and cognate requirements such as low as reasonably achievable) is usually traced to Edwards v National Coal Board [1949] 1 KB 704 at 712, Asquith LJ (an absolute duty to secure the safety of a road, tempered by a defence that it was not reasonably practicable to avoid or prevent a breach). In part, Asquith LJ observed:

"Reasonably practicable" is a narrower term than "physically possible" and seems to me to imply that a computation must be made by the owner, in which the quantum of risk is placed on one scale and the sacrifice involved in the measures necessary for averting the risk (whether in money, time or trouble) is placed in the other; and that, if it be shown that there is a gross disproportion between them-the risk being insignificant in relation to the sacrifice-the defendants discharge the onus.

1. "Gross disproportion" may not be apt when applied to the existential risk of climate change caused by GHG emissions to the atmosphere. However, be that as it may, as I have noted the EP in addressing as low as reasonably practicable for GHG emissions concludes (the conclusion is repeated for many impacts and risks that are not presently in issue) that "as no reasonable additional/alternative controls were identified that would further reduce the impacts without grossly disproportionate costs/sacrifice, GHG emissions from the Scarborough facility and indirect emissions sources that Woodside may practicably influence are considered ALARP". Plainly, that is to be read with EPO 29, amongst other environmental performance outcomes. Later in these reasons, I return to this justification.
2. A more contemporary analysis for the present case was provided by Gaudron J in Slivak v Lurgi (Australia) Pty Ltd [2001] HCA 6; (2001) 205 CLR 304 at [53] (another work safety case):

The words "reasonably practicable" have, somewhat surprisingly, been the subject of much judicial consideration. It is surprising because the words "reasonably practicable" are ordinary words bearing their ordinary meaning. And the question whether a measure is or is not reasonably practicable is one which requires no more than the making of a value judgment in the light of all the facts. Nevertheless, three general propositions are to be discerned from the decided cases:

• the phrase "reasonably practicable" means something narrower than "physically possible" or "feasible";
• what is "reasonably practicable" is to be judged on the basis of what was known at the relevant time;
• to determine what is "reasonably practicable" it is necessary to balance the likelihood of the risk occurring against the cost, time and trouble necessary to avert that risk.
• (citations omitted).

1. Although the first object of the Regulations (at s 4) is to ensure that any petroleum activity carried out in an offshore area is consistent with the principles of ecologically sustainable development expressed at s 3A of the EPBC Act, as correctly observed by Charlesworth J in Munkara at [153] these principles do not require the elimination of risks.
2. In my view, as low as reasonably practicable in the Regulations imports an inherently flexible requirement. It does not prescribe that there may be only one way, or only a series of ways, of demonstrating that an identified environmental impact or risk will be so reduced. What it directs attention to is that having identified the environmental impacts and risks of the activity (for an impact, any change to the environment whether adverse or beneficial, that wholly or partly results from the activity) the reduction that is required to be demonstrated is bounded by objective reasonableness and practicability. This is a fact sensitive inquiry, responsive to identified impacts and risks in order of magnitude resulting from the type, scale and duration of the proposed activity which is antithetical to a narrow or prescriptive construction. It is a risk analysis conclusion reached by the application of accepted methodology. As I have noted, the EP proceeds in that way by reference to ISO 31000:2018 and other standards that require identification and classification of risk categories.
3. If the outcome of the risk analysis is that there are alternatives where the implementation of one (or more than one) will have the effect of reducing an environmental impact or risk, the environmental plan must demonstrate that the alternative which has the lowest practicable reduction is set out and justified. Or, in a case where there are no true alternatives, that the methodology that is proposed to be implemented by the titleholder is one that is designed to and will reduce identified environmental impacts and risks to the required level.
4. This is the pathway the EP adopts, as evidenced by the "Discussion of ALARP" and "ALARP Statement" sections of the EP as extracted above at [24].
5. The third criteria requires demonstration that the environmental impacts and risks will be of an acceptable level. This must be read harmoniously with reduction to as low as reasonably practicable. Each is directed to the same end, though reduction to as low as reasonably practicable may not be an acceptable level. As such, each is a separate criterion. It must also be read with the fourth criterion; that the environment plan must provide for appropriate environmental performance outcomes, which it will be recalled speaks to a measurable level of performance required for the management of the environmental aspects of the activity.
6. The controlling provisions demonstrate why the definitions are not silos of isolated effect. The nature and scale of the activity requires no more than an environment plan that is appropriate: s 34(a). The environmental impact and risk assessment of the activity is directly related to its nature and scale. It is open to demonstrate reduction of environmental impacts and risks to as low as reasonably practicable by a combination of measures. Environmental impacts and risks are required to be evaluated appropriate to the nature and scale of each: s 21(5)(b). Once they have been, the environment plan must set out the control measures that will be used to reduce the impacts and risks of the activity to as low as reasonably practicable and an acceptable level: s 21(5)(c). There is no requirement for a control measure to be a metric, a quantity or a specific amount. A control measure may simply be a system or a procedure which is used as a basis for managing impacts and risks. Control measures do not operate in isolation. The environment plan must set out environment performance standards for each control measure. This is no more than a statement of the performance required of a control measure. Performance is capable of being measured qualitatively. There is no definition for measurement criteria which is related to environmental performance outcomes and environmental performance standards: s 34(d). There is no apparent reason therefore why measurement criteria must be prescriptive. All that is required is that the environment plan must include measurement criteria that the titleholder will use to determine whether each environmental performance outcome and environmental performance standard is being met: s 21(7).
7. The point is that the regulatory scheme is designed to operate as an integrated environmental impact and risk assessment procedure designed to produce an environment plan which, to the reasonable satisfaction of NOPSEMA, meets all of the environment plan acceptance criteria in Division 2, including s 21. The only reference to specific measures in Division 2 is s 22(2) which requires an implementation strategy that "must contain a description of the environmental management system for the activity, including specific measures to be used to ensure that, for the duration of the activity", amongst other things, the environmental impacts and risks continue to be identified and reduced to a level that is as low as reasonably practicable. If the intent of the regulatory scheme was that specification was required for as low as reasonably practicable and to an acceptable level, it would not have been difficult to make similar provision at s 21(5) or for that matter in the respective definitions.
8. The core argument of DEA is that an acceptable level of Scope 3 GHG emissions (the impact and risk) must be defined to allow for comparison with predicted levels and linked to the environmental performance outcomes requirement of a measurable level of performance. Performance is incapable of measurement absent identification of what is the acceptable level. As such, an acceptable level of environmental impact and risk is a benchmark - not a statement of what a titleholder will do when undertaking an activity. As put in written submissions:

Woodside's EPO 29 states that "estimated GHG emissions associated with third party transport, regasification, distribution and end use shall remain below 162 MtCO2-e over 5 year operational span of this EP revision".

Comparing EPO 29 with the example given above shows this is the closest Woodside comes to devising a compliant EPO. But, because Woodside has failed to identify and justify an acceptable level of third party GHG emissions, it has failed to devise an EPO that will "ensure that environmental impacts ... will be of an acceptable level". All Woodside's EPO 29 establishes is that the predicted levels of GHG emissions (162 MtCO2-e over 5 years) are not acceptable, because it proposes to reduce those emissions by some unspecified amount. But it has not said (or justified) what is an acceptable level, and so not devised an EPO.

1. I am unable to accept the argument. The premise is to the effect that the Regulations impose in all cases, for all activities, for all environmental impacts and risks an obligation to prescriptively define the acceptable level that is less than the identified environmental impacts and risks in order to expose for assessment a measurable level of performance within the meaning of environmental performance outcome. Although the submission does not go so far as to say that the acceptable level must be a metric, DEA does submit that there must be identification of a measurable criteria against which performance is capable of being measured. With respect that exposes the construction error. There are several reasons why.
2. First, the scheme of the Regulations leaves it to the titleholder to identify environmental impacts and risks, to assess their extent and to evidence that assessment by demonstration. It is open to the titleholder to identify the evidence, formulate the methodology and set out the content of the demonstration in whatever manner it chooses. There is no constriction on how the demonstration is to be undertaken. It may be limited to the gathering of evidence, a description of a range of possible or probable outcomes under different scenarios, a high-level explanation, experimentation or the application of logical analysis to prove that an impact or risk is not sufficiently material. The options available are constrained only by relevance, human ingenuity and reasonableness. The DEA construction arguments cannot be reconciled with the obvious need for regulatory flexibility when the activities that are subject to it will vary considerably in size, scope and potential environmental impacts and risks.
3. Second, and relatedly, the purpose of the environment plan acceptance criteria at s 34 is to enable NOPSEMA to reach the state of reasonable satisfaction at s 33. This is a matter of evaluative judgment that is committed to NOPSEMA alone. Whether an environment plan identifies an acceptable level of impact and risk and provides the required demonstration is a matter for it to assess. As Charlesworth J observed in Munkara at [153], assessing the acceptability of impacts and risks is "highly evaluative and context sensitive". The assessment is not susceptible to the level of prescription that the DEA argument requires. Moreover, the DEA argument impermissibly transgresses the merit of the sufficiency of EPO 29, which is a clear statement that Scope 3 GHG emissions "shall remain" below 162MtCO2-e over the five year period of the EP.
4. Third, demonstration that environmental impacts will be of an acceptable level and risk is forward looking. Intrinsically it requires assessment of the future within the bounds of what is a reasonable assessment when an environment plan is prepared. Once that is understood, the prescriptive implication of quantification (or some other like measure) that DEA submits is a mandatory requirement is hard to discern from the text understood in that context and where the purpose is to regulate a multitude of offshore petroleum and GHG activities.
5. The regulatory scheme is designed to operate and respond to future uncertainties. An environment plan is prepared for a five year horizon. NOPSEMA may request a titleholder to submit a revised environment plan, which power is not constrained by satisfaction of the occurrence of any particular circumstance: s 40. A titleholder must submit a revised environment plan 14 days before the end of each consecutive five year period: s 41. NOPSEMA may by written notice withdraw the acceptance of an environment plan if, inter alia, the titleholder has not provided sufficient information to enable it to determine whether the environmental performance outcomes and environmental performance standards have been met: s 43(1)(d). The titleholder must submit a report to NOPSEMA in relation to the environmental performance for the activity at the times or intervals provided for in the environment plan: s 51(1). These provisions demonstrate that an environment plan is not a static document. Rather, they are supportive of a construction of s 34(d) as one allowing for such flexibility as the circumstances of an activity and the likely future environmental impacts and risks require.
6. Fourth, the s 34(d) criteria cannot be construed as requiring a level of certainty, prescription or exactness in cases where that is not possible or reasonable. The Scope 3 GHG emissions from the activity in this case illustrates why that is so. Accepting the near linear relationship between cumulative anthropogenic CO2 emissions and the global warming they cause (EP page 335), which is a submission of DEA, does not answer what is an acceptable impact. The EP exposes the uncertainties related to the estimates at Table 6-21 associated with reservoir and process performance (page 345), the shape and pace of the energy transition (page 353), scientific uncertainty in the projection of climate change trends, the predicted and observed environmental effects of climate change and the changing regulatory and social requirements (page 375). If uncertainties of this type prevent determination of what is an acceptable level of environmental and impacts and risks, it is open to NOPSEMA to not be reasonably satisfied that the environment plan meets the acceptance criteria. Once again, that is a matter for evaluative judgment, not regulatory prescription. The scheme does not adopt a one size fits all approach.
7. Fifth, textually the regulatory requirement is expressed as an acceptable level of impact and risk, not its quantification. Acceptable has the ordinary and natural meaning of adequate, satisfactory or tolerable (Macquarie Dictionary, 3rd ed, 1997). Level in context is capable of application to a variety of methodologies, depending on the identified environmental impact and risk. Obvious examples include positions, standard, degrees, grades, ranks, ranges and including metrics. The drafting accommodates the determination of acceptability depending on what is being demonstrated by analysis in an environment plan. Once that is understood, a measurable level of performance for an environmental performance outcome need not be a metric or a quantification in order to assess the impacts and risks against an acceptable level. This is not inconsistent with the reasoning of Colvin J in Cooper at [59]. His Honour was not concerned with the present problem and, in any event, the reference to requiring "an understanding of the environmental impacts and risks" in order to form the evaluative judgment does not compel specification by metrics. His Honour was not concerned with other methodologies employed where the impacts and risks are insusceptible to metrics or quantification. And, in this case, the impacts and risks of Scope 3 GHG emissions were extensively exposed in the EP for analysis by NOPSEMA.
8. Sixth, identification of an acceptable level of impact and risk is an outcome of a process that begins with development of what is the activity, its components and the operational methodology, identifies the relevant environment, assesses the actual or potential impacts and risks then evaluates the level of significance as requiring a response or not. A range of measures may be identified to address particular impacts and risks and if so, the titleholder will likely select one that is a reasonable response. A central component is reduction of identified environmental impacts and risks to as low as reasonably practicable. The Regulations must be capable of operation with the degree of elasticity inherent in this process. Quantifiable criteria may be the outcome, but there is no express or implicit requirement to articulate acceptable impacts and risks in that way. Expressed differently, NOPSEMA may require specification or a greater level of detail in order to be reasonably satisfied that an environment plan meets the acceptance criteria, but that is not mandated by the regulatory scheme.
9. Quite apart from the construction question, ground 9 and the core submission of DEA each fail for a different reason. Even if the acceptable level construction argument is correct, the EP stated one for Scope 3 GHG emissions. Table 6-22 (page 345) estimates Scope 3 GHG emissions over the five year period of the EP at 162 MtCO2-e and 778 MtCO2-e for the development life. I have set out part of the introductory paragraphs to Table 6-25 at [19] of these reasons. That it is clearly put as an alternative worst-case outcome.
10. Table 6-25 proceeds on the assumption that all GHG emissions from the project (not limited to Scope 3 GHG emissions) "are treated as entirely additive". The total GHG emissions over the development life of 878 MtCO2-e are calculated respectively as 0.37% of the remaining global carbon budget to limit global warming by no more than 1.5**°C or 0.08% of the remaining global carbon budget to limit global warming by no more than 2°**C. EPO 29 requires that the total emissions over the life of the EP shall remain below 162 MtCO2-e. The EP then states (page 358):

Greenhouse gas emissions associated with Scarborough are estimated to be up to 878 Mt CO2-e till EOFL, of which approximately 100 Mt CO2-e may originate from extraction and processing in Australia. Projected annual extraction and processing GHG emissions of approximately 3.5 Mt CO2-e would represent ~0.8% of national Australian emissions, relative to FY2024 (440.6 Mt CO2-e for the year until June 2024) (DCCEEW, 2024c).

Based on Australia's GHG emission reduction commitments and NDC, an Australian carbon budget of 4,377 MtCO2-e for the years 2021-2030 has been estimated (DCCEEW 2024c), GHG emissions associated with the Scarborough project until 2030 occurring in Australia, conservatively assuming 5 full years of operation and emissions from consumption of domestic gas, are estimated to be 38 MtCO2-e, representing 0.9% of Australia's carbon budget for this period. Net emissions associated with Scarborough in Australia are set to be lower than these totals - with ongoing abatement via implementation of the NGERS Safeguard Mechanism which sets out an abatement trajectory consistent with achieving Australia's emission reduction targets.

These emissions represent a de minimis contribution to either Australia's GHG emissions or global GHG emissions.

1. DEA submits this hypothetical scenario is just that: it is not the case presented in the EP, is expressed as not expected to eventuate and is not the case considered by NOPSEMA.
2. I reject the submission. An objective reading of the EP demonstrates that Woodside approached the acceptable level demonstration by the hypothetical worst-case scenario. The EP states in Table 6-22 what the total contribution of Scope 3 GHG emissions over five years (and the development life) would likely be without any reduction for the contribution of the project to reducing Scope 3 GHG emissions by consumers switching from more intense GHG fuel sources to LNG. From page 352 to page 357, the EP demonstrates that this is unlikely because of the role that LNG will likely play in replacing higher carbon intensity fuel sources. The conclusion of the analysis is expressly that the environmental impact and risk of all GHG emissions in consequence of undertaking the activity at either 0.37% or 0.08%, respectively of the remaining global carbon budgets to limit global warming to 1.5°C or 2°C, is the acceptable level. Whilst the EP does not employ that label at this point in the analysis, that is clearly the effect of the conclusion that the total emissions "represent a de minimis contribution to either Australia's GHG emissions or global GHG emissions".
3. For the reasons I have explained, the Regulations do not (explicitly or implicitly) prescribe any methodology that must be implemented to demonstrate that the environmental impacts and risks of the activity will be reduced to as low as reasonably practicable and will be of an acceptable level. It follows that it is open to a titleholder to address each criterion by postulating a hypothetical worst-case scenario to demonstrate that the environmental impacts and risks of all GHG emissions will be of an acceptable level, even if there is no displacement effect. A titleholder may proceed in that way as an alternative analysis even if, as in this case, it concludes that the hypothetical is unlikely to occur. Whether proceeding in that way is satisfactory or sufficient is a matter for NOPSEMA to determine when making the decision required by s 33(7).
4. Further, I do not accept that NOPSEMA failed to understand this. True it is that there is no reference in the statement of reasons to de minimis, worst-case or hypothetical but to proceed in that way is to commit the error of failing to read the entirety of the statement of reasons and does not support the conclusion that NOPSEMA did not accept the analysis or failed to understand it. That is clear from parts of the statement of reasons from [35], (extracted at [48] above), where the delegate addressed the demonstration required by s 34(c) as set out in Parts 2 and 6 of the EP. It is to be noted that the delegate referenced section 6.7.6 (Routine and Non-routine Greenhouse Gas Emissions) which commences at page 335 of the EP and concludes at page 386. Table 6-25 is identified as including "consideration of the relevant requirements that apply to GHG emissions from the activity". The delegate accepted at [36](f)(iii) that the GHG impact evaluation "is conducted on the assumption that all emissions predicted for the lifecycle of the activity will be realised; and does not account for potential future emissions reduction projects through technology or operational refinements". Overall, the delegate concluded at [40] that:

The EP provided an appropriate evaluation of impacts and risks specific for the nature and location of the activity and relevant environmental receptors. I considered that the evaluation is commensurate with the level of impact or risk presented and provides justifiable conclusions that impacts and risks will be managed to an acceptable level (Section 6). The impact and risk evaluations demonstrate that the acceptable level will be met, and that the EPO "will be achieved."

1. That conclusion was open. For of these reasons, ground 9 fails.
2. It follows also that ground 4 fails because there is no basis to conclude that EPO 11 (Woodside will support its customers to reduce GHG emissions) fails to provide a measurable level of performance as there is no requirement for an environmental performance outcome to set a measurable level of performance by reference to quantifiable criteria and, in any event, the EP by analysing the worst-case hypothetical did so.

1. I proceed in the order in which I have grouped the grounds. It is sufficient to summarise the effect of each ground.

Control measures: grounds 1, 2, 6, 7, 11 and 12

1. Ground 1 contends that CM 6.20 is not a control measure as required by s 34(h) because it does not meet the requirements of s 21(5)(c). The effect of CM 6.20 is that Woodside commits to undertake an annual review process to address uncertainties in the impact assessment of Scope 3 GHG emissions, which may result in the application of additional management measures if the conclusion is that LNG is not displacing more carbon intensive fuels. DEA submits that the failure to identify what additional management measures might be or how they might be implemented leads to the inference that they do not exist, have not been assessed and what, if anything, will be achieved is unknown.
2. A control measure is defined as including a system or a procedure that is used as a basis for managing environmental impacts and risks of an activity. NOPSEMA is correct to submit that s 25(5)(c) does not in terms require that everything described as a control measure in an environment plan must meet that definition. The extent of the obligation is to include details of the control measures that the titleholder intends to implement to achieve as low as reasonably practicable and an acceptable level of environmental impact and risk. There is no prescription that a control measure must take a particular form and, it follows from my reasoning above, that to demonstrate satisfaction of the as low as reasonably practicable and acceptable level criteria, it is open to a titleholder to propose systems or procedures that may be implemented in the future, depending on the outcome of a review process. There is no requirement to set out the details of those systems and procedures in advance of a study and analysis of what in fact is occurring as a result of undertaking the activity. There is no requirement of specificity or certainty. Systems or procedures are not constrained in the manner DEA contends. Whether that which is proposed satisfies s 34(h) is a matter for NOPSEMA to determine in undertaking its assessment is required by s 33(7). This ground fails.
3. Ground 2 is parasitic to ground 1. It contends that because CM 6.20 did not demonstrate that the environmental risks and impacts of Scope 3 GHG emissions will be reduced to as low as reasonably practicable and will be of an acceptable level, NOPSEMA could not have been reasonably satisfied as required by s 33(7). It fails for the same reasons.
4. Ground 6 contends that CM 6.17 (Woodside will support its customers to reduce their emissions by investment in new energy products and lower carbon services) is not a control measure because it is uncertain and is in terms a target and therefore not a system , an item of equipment, or a procedure, within the meaning of the definition. There is no basis to construe the definition of control measure as excluding a target to be achieved by the implementation of future steps. DEA also submits that the measure is vague, uncertain and subject to future contingencies with the result that it is a measure that may not be implemented at all. I reject that argument for the reasons given for grounds 1 and 2. This ground fails.
5. Ground 7 is parasitic to ground 6. It contends that CM 6.17 does not demonstrate that the environmental impacts and risks will be reduced to as low as reasonably practicable and will be of an acceptable level and therefore NOPSEMA could not have been reasonably satisfied that the EP met each criteria. It fails for the reasons given for ground 6.
6. Ground 11 contends that CM 6.18 (Woodside will work with the natural gas value chain to reduce emissions in third-party systems) is not a control measure within the meaning of the definition. DEA submits that this is no more than a statement of general intent or objective and fails to articulate any system or procedure that can be used as a basis for managing environmental impacts and risks to achieve the required reductions. It is no more than a "generic and high-level objective", devoid of detail and therefore effectiveness.
7. I do not agree. As I have explained, a system or procedure may be proposed by a titleholder in this form and there is no requirement of present certainty or exactness. Whether the control measure in that form exposes the EP to the conclusion that the environment plan acceptance criteria is not met, is a matter for NOPSEMA to determine pursuant to s 33(7). The ground impermissibly inquires into the merits of the Decision. The ground fails.
8. Ground 12 is parasitic to ground 11. It contends that because the CM 6.18 failed to meet the definition of a control measure, NOPSEMA could not have been reasonably satisfied as required by s 33(7). This ground falls with ground 11.

Environmental performance standards: grounds 3, 8 and 13

1. Ground 3 contends that EPS 6.20.2 (adaptive management measures will be implemented if gas is not contributing to the global energy transition or displacing more carbon intensive fuels) is not an environmental performance standard because it fails to state or set the performance required by CM 6.20. DEA submits that by repeating the control measure it tells NOPSEMA nothing and exposes that it is not possible to devise a compliant environmental performance standard for a meaningless control measure.
2. I do not agree. An environmental performance standard simply means a statement of the performance required by the control measure. EPS 6.20.2 specifies that adaptive management measures will be implemented in the event that the outcome of the review process required by CM 6.20 discloses that gas is not contributing to the global energy transition or displacing more carbon intensive fuels. Once it is understood that it was open to NOPSEMA to be reasonably satisfied that CM 6.20 is a measure that meets s 34(d), it follows that EPS 6.20.2 is a statement of the performance required by that control measure. This ground fails.
3. Ground 8 contends that EPS 6.17.1 is not an environmental performance standard because it does not state or set the performance required by CM 6.17. Having concluded that ground 7 fails, which impugns that CM 6.17 is not a control measure, this ground fails with it.
4. Ground 13 contends that EPS 6.18.1 is not an environmental performance standard because it does not state or set the performance required by CM 6.18. Having concluded that ground 12 fails, this ground does as well.

1. Ground 5 contends that NOPSEMA could not reasonably have been satisfied that the EP met the acceptance criteria because MC 6.20.2 (records demonstrate that adaptive management measures be implemented, if required) does not include any measurement criteria to determine whether EPO 11 and EPS 6.20.2 are being met. DEA submits that the problem with MC 6.20.2 is that it is impossible to devise a compliant measure for an environmental performance outcome or an environmental performance standard, which of themselves do not meet the statutory criteria. The submission continues that the EPS does nothing more than restate defective environmental performance outcomes and standards.
2. This ground fails because I have concluded that it was open to NOPSEMA to conclude that EPO 11 and EPS 6.20.2 each met the statutory criteria (grounds 4 and 3).
3. Ground 10 contends that MC 6.17.1 (progress against targets will be reported annually and disclosed to relevant industry standards) does not include any measurement criteria to determine whether any environmental performance outcome, including EPO 29, and any environmental performance standard, including EPS 6.17.1, are being met. DEA submits that it is impossible to set a measurement criteria for a defective environmental performance outcome and environmental performance standard. This ground fails because there is no impediment to the formulation of a management control as a process of reporting whether an environmental performance outcome or an environmental performance standard is being met.
4. Ground 14 contends that MC 6.18.1 (records demonstrate that listed actions have been undertaken and are effective) in response to CM 6.18, fails to specify any measurement criteria to make that determination. This fails for the reasons given for ground 5.
5. Finally, as I have noted it is unnecessary to separately consider grounds 15 and 16.

I certify that the preceding one hundred and eighty-six (186) numbered paragraphs are a true copy of the Reasons for Judgment of the Honourable Justice McElwaine.