Butt out! This is the message to all those learned judges (particularly in the Federal Court, but equally on other benches) who think they have the right (let alone the capacity) to stick their bibs into environmental policy that is properly the domain of parliament. This message was  clearly implied in May’s release of the  Albanese government’s Future Gas Strategy. It ties the achievement of its (unachievable?) 2050 legislated net zero emissions target inextricably to the continued use of gas (and also the need for major investment to increase gas production) even beyond that date. This blows away the repeated, absurd assertions by judicial environmental activists that Australia’s commitment to the Paris Accord on climate change requires rejecting (or at least causing costly delays to)  multi-billion-dollar Australian fossil fuel developments.

Up to now, these economic vandals have got away with this assault on an industry that is the major single element in Australia’s financial prosperity. Their success, measured by the billions of dollars in added costs and delays, has largely been due to the absence of a clear governmental policy on what role fossil fuels – and particularly natural gas – should play under its climate commitments. So for years, every time a fossil fuel project sought regulatory approval, or was challenged in a lawfare suit, it has had to argue the case against the well-rehearsed climate disaster songsheet – a duty relating more to what is properly a matter of overall government policy rather than whether an individual project really adds anything to global warming.

At last, for gas, there is now unequivocal governmental in-principle policy that new projects are not simply tenable within Australia’s climate undertakings, they are an essential element in achieving them. Gas projects no longer have to defend themselves as perpetrators of climate disaster; now they are simply implementing the government’s agenda.

The key element of the Future Gas Strategy is that instead of killing gas off in the cause of climate change, as catastrophists insist, the government recognises that Australia needs new and continued investment to develop and sustain supply to meet demand that will extend beyond the transition to net zero in 2050.

‘Without further investment, shortfalls will negatively affect Australian households and businesses, and the reliability of our electricity system, with real risks gas will become unaffordable and unavailable well before 2050. Accordingly, further exploration, acreage release and gas production will be required.’

The strategy paper, comprising a well-researched 170 pages, blames the low level of exploration and investment in gas over recent years on a combination of government project approval processes, legal challenges which delay projects (it does not mention that much of this lawfare has been funded by government-supported ‘charities’), government interventions that affect investment conditions, a decline in the gas industry’s social licence (i.e. public support) and a lack of access to project finance from financial institutions – with the ANZ bank being the latest example of ill-conceived negativity on gas.

The strategy seeks to correct all of these, starting with government decisions on gas development rights giving priority to timely development and discouraging repeated delays (like red tape and lawfare?) to ensure supply and affordability.

A significant problem in this scenario is that only a week after outlining how, as an ‘immediate action’ element of its determination to increase the supply of natural gas, it would reform and fast-track the chaotic approvals process for offshore developments, the government gave way to the Greens’ demands in exchange for legislative support. It withdrew that part of the necessary legislation which would have allowed the government to define who needed to be consulted on gas projects This has been delayed indefinitely although government sources have been quoted in the media saying that the consultation mechanism for offshore gas projects had not been abandoned, but rather that consultations would continue to develop it so it could pass through parliament – presumably in a watered-down form to ensure Greens support.

This is a major setback, with Australian Energy Producers chief executive Samantha McCulloch lamenting that, ‘Regulatory certainty and timely environmental approvals are needed to address delays facing critical new gas supply projects and to restore investment confidence.’ More to the point, energy analyst, Saul Kavonic warned the decision ‘imperils’ every offshore gas project in Australia including Woodside Energy’s $20 billion Browse and Santos $US2 billion Dorado developments along with the ability to keep the $100 billion-plus Gorgon, Wheatstone and Ichthys LNG projects running

But what about coal? Just a week after the government’s Future Gas Strategy pulled the plug on anti-gas activism, a full Federal Court reluctantly, but very significantly, found against environmentalists seeking to reverse Environment Minister Plibersek’s approval of two coal mines extending their leases to the mid-to-late 2040s. The bench effectively lamented that the decision was due to the ‘ill-suitedness’ of the current environment laws under which the minister is not legally required to assess risk to the environment or climate harm of coal mine expansions. This was even after her acceptance that ‘climate change is having or will have adverse effects on the flora, fauna and ecosystems of the identified National Heritage places’. But the court agreed with the Minister’s view that evidence ‘does not demonstrate that the proposal will cause any net increase in global GHG emissions and global average temperature (and consequently, no physical effects of climate change on declared World Heritage properties).  Whether this will happen is subject to multiple variables’ – a concept new to those jurists who over recent lawfare years have swallowed the mantra of the late Professor Steffen that a new mine automatically means more greenhouse gas emissions. In any event, Minister Plibersek demonstrated that if there were any emissions contribution, it would be very small, well outside the legislative trigger requiring a ‘substantial cause’ of the physical effect of climate change on the World Heritage values. There is a message here for those on various benches who seek to block developments because their global warming impact will allegedly destroy the Great Barrier Reef. ‘There ain’t no substantiality’ is now a legal precedent.

But if there are still some activists on the bench who want to persist with their climate cause, they should, as judges do, look to a recent English High Court precedent where Mr Justice Sheldon, in finding, on a point of law, for the Friends of the Earth against the UK government, nevertheless asserted that the ‘complex social, economic, environmental and technological assessments’ that go into government’s environmental decisions ‘are not matters in respect of which the Court has any real expertise or competence’ and are properly the domain of those who ‘have an experience of what is practicable within the governmental and wider political context’.

Well said. Environment law belongs in parliament; judges who intrude into politics do no favours to the reputation of the legal system.