Australia’s peak oil and gas lobby group has called for the federal government to revoke the tax-deductible status of community legal groups that challenge the legality and sustainability of fossil fuel developments.

In a recent submission to the Inquiry into the Register of Environmental Organisations, the Australian Petroleum Production and Exploration Association (APPEA) accused Australia’s community legal centers of “constraining lawful development to the detriment of the public interest”. That’s right: according to APPEA, environmental lawyers are making mischief in the courts with the goal of denying benefits to ordinary Australians.

The national network of Environmental Defenders Offices (EDO) offer free legal advice to individuals and community groups and undertake public interest litigation in a limited number of cases. It’s a wonder, actually, that the EDOs are able to mount any effective legal action at all after almost two decades of bipartisan federal funding was terminated in 2014, but their ongoing existence appears to be a thorn in the side of an industry with a combined annual export revenue of over $30 billion.

It’s worth mentioning, in passing, the pecuniary gap between APPEA members — a prestigious group comprising some of Australia’s biggest grossing companies, including Chevron, BHP Billiton, Shell, AGL and Woodside — and the state and territory EDOs, with the latter funding their community-focused advice and advocacy services on the smell of an oily rag. Which seems drearily apt.

APPEA’s claim that the EDOs fail the public interest test and don’t merit government funding blithely — and conveniently — overlooks the recommendations of the Productivity Commission.

In December last year, the independent economic adviser emphatically backed government funding of the EDOs on the grounds that “inappropriate developments” might well be justiciable — that is, capable of being assessed by the courts — but individuals and communities have insufficient resources to pursue their rights to legal review and there are limited incentives for private lawyers to assist them.

APPEA is eager to beat the drum about the legality of major resource development — the word “lawful” appears no fewer than 19 times in its submission — but it displays an appalling grasp of the concept of lawfulness and the importance of public interest litigation in improving or enforcing the law.

In the high-profile Western Australian case against the James Price Point gas hub in the Kimberley, Chief Justice Wayne Martin found that the state government approval for the development was unlawful due to failures to address conflicts of interest among EPA board members. In short, the gas development was unlawful, and it took a case run by the EDO and the Wilderness Society to reveal this.

The majority of EDO litigation, as it happens, has resulted in significant and positive change — either the complete reversal of a decision or material improvements to project conditions. According to the Productivity Commission, no cases launched by the EDO in the last five years have been found to be “frivolous or vexatious” — legal terms used to denote cases with no prospect of success, designed to inconvenience or harass the litigant.

Other recent EDO cases — including judgements requiring remediation of pollutionbanning mining near rare or threatened ecological communities, and mandating greenhouse gas emission offsets from Ulan’s coal expansion in NSW — underscore the critical role the EDOs play in clarifying the law and protecting the interests of the entire community, not just those that stand to profit from resource extraction.

APPEA’s submission includes, as always, the ubiquitous industry patter spruiking the greenhouse benefits of Australian LNG, benefits it alleges will be put at risk by “groups that seek to fund their objective of preventing the lawful development of Australia’s publicly owned resources by a taxpayer funded subsidy”. It’s a diabolical argument. And even if we leave to one side the vast subsidies underpinning oil and gas exploration in Australia, and the fundamental — although apparently superfluous — democratic principle of access to justice for all, APPEA’s claimed environmental benefits simply don’t stack up.

The greenhouse gas benefit of LNG over coal — even under the implausible assumption that all Australian LNG could replace coal-fired generation — fails to approach the 50-70% reductions claimed by APPEA. An industry-funded CSIRO study reveals lifecycle greenhouse gas emissions from LNG are much greater than claimed by industry, while independent research suggests that LNG pollution could be similar to that produced by coal-fired electricity generation.

In light of APPEA’s fanciful presentation of the evidence, it’s little wonder its members have no appetite for closer scrutiny in the courts.

In March this year, the Australian Attorney-General restored funding to all community legal centers with the exception of EDOs, who now receive no federal funding for environmental law reform, advice, litigation or any of their other activities. In Western Australia, the hub of Australia’s oil and gas development, the state government has also withdrawn funding for the EDO, effective from June 30 this year.

For a federal government devoted to the “coal is good for humanity” rhetoric, the decision to revoke funding for EDOs comes as no surprise, but it leaves environmental legal centres more reliant than ever on charitable donations from the private sector. Stripping the tax-deductibility status of the EDOs will deliver a significant blow to the national network of environmental defenders, and may significantly restrain environmental public interest litigation in Australia.

And that is precisely the point, of course. APPEA members are not primarily concerned that public interest litigation may be frivolous or vexatious; they’re worried that it may not be, as Ulan’s landmark ruling demonstrates.

It’s not difficult for an industry sector delivering an annual tax revenue of around $8 billion, with royalties of over $1 billion in Western Australia alone, to get the ear of the government — indeed, Chevron has successfully lobbied the WA Environment Minister to revoke most greenhouse gas conditions for its giant Wheatstone LNG project, against the advice of the Environmental Protection Authority, his own department, and an independent consultant — but a robust legal system, underpinned by an independent judiciary and a well-resourced public defender, is an altogether thornier problem.

Ultimately APPEA and the governments doing their bidding may find that the attacks on the EDOs might have the opposite effect to that which they seek. Under government funding, EDOs have been obliged to provide advice to members of the public on all manner of environmental issues, from coal mines to noisy air conditioners. If they survive the cuts, the EDOs may well find themselves more able to pursue the kinds of strategic litigation that has been successful in stopping massive fossil fuel developments from proceeding.

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Peter Fray
Peter Fray
Editor-in-chief of Crikey
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